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Alberta court’s argue that concerns for public safety trump an individual’s personal choice
By Hempology | January 14, 2008
Lethbridge Herald, AB
10 Jan 2008
DRUG TEST POLICIES IN A LEGAL HAZE
It will take the wisdom of the Supreme Court of Canada to settle duelling lower court rulings that leave a conflicting tale of how to handle workplace drug testing.
Since 2000, human rights commissions policies across Canada have been guided on the matter largely by a case decided in the Ontario Court of Appeal. The case centred on Imperial Oil’s testing policy which subjected workers in safety-sensitive jobs to random drug and alcohol testing. The court found random drug testing discriminatory because the test only reflects evidence someone has used drugs in recent days or weeks; the test can’t show whether the employee is impaired at the time of testing.
The court said drug tests should only be given when the employer has reason to suspect an employee is impaired to the point of affecting safety and job performance or after an accident on the job, and testing should only be one part of a program to assess use or abuse of drugs. Finally, the court said a failed drug test shouldn’t immediately result in job termination; employers have a duty to accommodate workers by providing rehabilitation or treatment or transfer to a job where safety is less a concern.
An addiction to drugs or alcohol is considered a disability under Alberta’s human rights law, which makes the dismissal of workers with such disabilities a matter of discrimination.
But an Alberta court recently gave the dicey matter of drug screening ( and consequences of failed tests ) a different spin.
In the Alberta case, a man hired by a contractor working on an oilsands mega-project was informed in advance that he’d be subject to a pre-employment drug test. He took the test June 28, 2002, less than a week after he smoked marijuana. He never mentioned it to the contractor and assumed the drug would be out of his system by then.
By the time the results were processed, the man had worked for the contractor for a couple of weeks. His employment was immediately terminated.
The worker never claimed an addiction problem. The company said because the man hadn’t yet completed his probation period and had not met the conditions of his contract ( a clean, pre-employment drug test ), he was not entitled to any “accommodation.”
A human rights panel hearing the worker’s complaint of discrimination dismissed his claim.
Although a Court of Queen’s Bench ruling sided with the dismissed worker, a three-judge Alberta Court of Appeal panel said the contractor’s policy didn’t assume the worker to be an addict. Instead, the judgment suggests the policy wasn’t focused on who might be addicted to drugs, but who might present a safety risk because of drug use in an already dangerous workplace.
“We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles,” wrote the court. “Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safety.”
And in a call for some commonsense application to drug testing in the workplace, the court continued: “Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.”
But with two courts in two different provinces coming to different conclusions on the matter of the rights of the individual versus concerns for safety, employers and human rights commissions across Canada would surely welcome an appeal of this latest ruling to the nation’s highest court.
Meanwhile, the Alberta court’s argument that concerns for public safety can trump an individual’s personal choice to use drugs appeals to our sense of individual responsibility.
The contractor made no secret of its drug policies; the worker chose to use an illegal substance less than a week before taking a drug test. His choice carried a consequence. Shouldn’t it?
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