The long-awaited ruling of the Alberta Court of Appeal in
Chiasson v. Kellogg Brown & Root
(Chiasson) was issued on December 28, 2007. The case
involved an admitted casual user of marijuana being terminated
from his employment after failing a pre-employment drug and
alcohol test. Mr. Chiasson was hired by KBR on the condition
that he pass a drug and alcohol test. After failing the test,
Mr. Chiasson admitted smoking marijuana five days before he was
tested. Chiasson was subsequently fired.
The Court of Appeal unanimously upheld the original decision
made by an Alberta Human Rights Hearing Panel. The Court of
Appeal held that Mr. Chiasson was a self-admitted recreational
user of marijuana. Mr. Chiasson was not suffering from a drug
addiction. The Court also noted that Mr. Chiasson's
termination was not based on the perception by the employer
that he was drug-addicted. Discrimination based upon
perceptions can be a violation of human rights legislation.
Because there was no perception by the employer that Mr.
Chiasson was drug-addicted, there was no basis to assert
discrimination on the basis of a perceived disability.
The decision assists Alberta employers in defending
challenges to pre-employment alcohol and drug screening tests
in safety-sensitive positions. In recent years, numerous
challenges have been raised under human rights and privacy
legislation as well as about the legality of such testing.
The Court specifically acknowledged the importance of safety
in dangerous work environments, observing that, "Extending
human rights protections to situations resulting in placing the
lives of others at risk flies in the face of logic."
The Court also noted that its ruling in Chiasson
may be at odds with the decision of the Ontario Court of Appeal
in Entrop v. Imperial Oil Ltd. To the extent that this
is so, the Alberta Court of Appeal has chosen to decline to
What Does this Mean for Employers?
As a general rule, pre-hiring alcohol and drug tests for
safety-sensitive positions can be justified in appropriate
A recreational alcohol/drug user will not be protected
under human rights legislation if he or she tests positive in
a pre-hiring drug test.
If the job applicant or employee is legitimately
suffering a disability arising from an alcohol or drug
addiction, then accommodation may still be required, although
the level of accommodation may not be significant and will be
determined on a case-by-case basis.
It is unclear whether the Alberta Human Rights Commission
will seek leave to appeal to the Supreme Court of Canada.
As we have seen in Alberta, Ontario and British Columbia,
alcohol and drug testing of individuals in safety-sensitive
positions remains controversial and subject to numerous legal
challenges. This decision is related only to pre-employment.
There are still myriad other outstanding decisions pertaining
to random, post-incident, reasonable cause and site-access
testing. Accordingly, this decision does not mean the end of
the ongoing litigation between employers on the one hand and
unions, employees, and Human Rights Commissions on the other.
However, this decision clearly elevates the importance of
safety as a consideration in the ongoing debate over testing in
safety-sensitive positions in workplaces.
Extensive materials on alcohol and drug testing in the
workplace can be found at our website,
www.mccarthy.ca. Any one of our Labour & Employment
Group lawyers would be pleased to address any questions you may
The content of this article is intended to provide a
general guide to the subject matter. Specialist advice should
be sought about your specific circumstances.
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In a policy statement released early last month, the Ontario Human Rights Commission clarified its position on the scope of medical documentation that employees need to provide when making disability-related accommodation requests.
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