Safety policies in Alberta have been in constant friction with human rights legislation ever since drug and alcohol testing was implemented. Under the Occupational Health and Safety Act, employers have a duty to ensure the health and safety of workers. To minimise harm caused by impairment at the worksite, owners and contractors in Alberta, particularly in the oil sands, have been incorporating drug and alcohol policies into their safety programs. While it is a laudable goal to have a safe worksite, owners and contractors have faced numerous legal challenges to drug and alcohol policies brought pursuant to the Human Rights, Citizenship and Multiculturism Act.
The December 28, 2007 decision of the Alberta Court of Appeal in Alberta (Human Rights and Citizenship Commission) v. Kellogg Root & Brown (Canada) Company1 is the latest chapter in understanding the fine balance between drug and alcohol policies and human rights.
Kellogg Brown and Root ("KBR") was working on the Syncrude UE-1 plant expansion near Fort McMurray. As with many current oil sands projects, there were thousands of workers on the site from a number of contractors and the work required integration of the workers across employers. As with any industrial construction site, there were many job hazards and a comprehensive safety program.
KBR had instituted a drug and alcohol policy which set out its intent as being a policy to prohibit impairment as the use of alcohol or prohibited or controlled substances could adversely affect the ability of a person to work in a safe manner. KBR's hiring policy required all persons seeking non-unionized positions to pass a "post offer/pre-employment" medical and drug test. If the person failed the test, they would not be hired, but could be re-considered after 6 months.
John Chiasson was recruited by KBR for the position of receiving inspector on the project. Mr. Chiasson was interviewed by telephone and was told of the "post offer/pre-employment" medical and drug test. The following day he was offered the position for a fixed term of 21 months, subject to the "results from [his] pre-employment medical and drug screen".
On June 28, 2002, two days after being offered the position and assuming that the marijuana that he smoked on June 22, 2002 had cleared his system, Mr. Chiasson took the pre-employment drug test. On July 8, 2002, he started work with KBR.
On July 17, 2002, KBR received the results from Mr. Chiasson's test and Mr. Chiasson was informed that he had failed the test. At that point, Mr. Chiasson admitted that he had smoked marijuana on June 22, 2002. Mr. Chiasson was instructed to return to Calgary and when he met with KRB's representatives, his employment was terminated.
Mr. Chiasson filed a complaint with the Alberta Human Rights and Citizenship Commission, alleging that he has been discriminated against on the basis of physical and mental disability, contrary to the Human Rights, Citizenship and Multiculturism Act.
The Human Rights Panel determined that Mr. Chiasson was hired for a safety sensitive position within a hazardous worksite. At the hearing, Mr. Chiasson gave evidence that he was a recreational user of marijuana and not addicted to it. KBR's representatives also testified that they did not consider Mr. Chiasson to be addicted to marijuana at the time he was terminated. The Human Rights Panel found that because there was uncontradicted evidence that Mr. Chiasson was not addicted to marijuana, there could be no actual disability due to drug addiction.
The Human Rights Panel also found that drug testing is prima facie2 discriminatory with respect of addicted persons and had Mr. Chiasson fallen into that category KBR's pre-employment testing policy would have failed to accommodate3 him contrary to the decision of the Supreme Court of Canada in Meiorin.4
The decision of the Human Rights Panel was appealed and heard by Justice Sheila Martin. Justice Martin found that the Human Rights Panel had erred in determining that Mr. Chiasson was not the subject of a perceived disability. She concluded that the effect of the KBR alcohol and drug policy was to treat recreational marijuana users as if there were addicted to marijuana and therefore KBR must have perceived Mr. Chiasson as an addict and therefore disabled.
Having found discrimination, Justice Martin looked at whether the discrimination was reasonable and justifiable as a bona fide occupational requirement5 and whether KBR had met it obligation to accommodate Mr. Chiasson. Justice Martin did not accept KBR's evidence that the zero tolerance policies coincided with a substantial reduction in workplace accidents as she determined there could have been other factors that reduced the number of accidents. She also determined that the zero tolerance policy provided no accommodation to Mr. Chiasson.
The Court of Appeal set aside Justice Martin's decision and reinstated the decision of the Human Rights Panel. In doing so, the Court of Appeal stated that there was no evidence that Mr. Chiasson was addicted to marijuana or that his termination by KBR was based on a perception that he was addicted to marijuana. Given these findings, the Court of Appeal determined that the KBR policy could only be discriminatory if the effect of it was that anyone testing positive was perceived as addicted and therefore disabled. As to the purpose of the KBR policy, the Court of Appeal said:
The purpose of the policy is to reduce workplace accidents by prohibiting workplace impairment. There is a clear connection between the policy, as it applies to recreational users of cannabis, and its purpose. The policy is directed at actual effects suffered by recreational cannabis users, not perceived effects suffered by cannabis addicts. Although there is no doubt overlap between effects of casual use and use by addicts, that does not mean there is a mistaken perception that the casual user is an addict. To the extent that this conclusion is at odds with the decision of the Ontario Court of Appeal in Entrop ... we decline to follow that decision.6
In speaking of the interaction between human rights legislation and workplace safety, the Court of Appeal said:
The Act prohibits certain, but not all, treatment based on human characteristics as discriminatory. The jurisprudence has extended the prohibited grounds to include instances where an employer incorrectly perceives that an employee has a prescribed disability. In this case KBR's policy does not perceive Chiasson to be an addict. Rather it perceives that persons who use drugs at all are a safety risk in an already dangerous workplace.7. . .
Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.8
As there was no discrimination, the Court of Appeal did not consider all of the arguments raised in the appeal. One interesting issue that the Court of Appeal left to be determined at another time is whether "public policy prevents extending human rights protections to activities that the Parliament of Canada has chosen to criminalize".
There are two other recent decisions of interest in the arena of drug and alcohol testing and how these policies relate to safe worksites which we do not have space to review.9 Should you be interested in obtaining copies of any of these decisions or wish to discuss the impact of these decisions further, please contact a member of the FMC Alberta Construction Group.
Footnotes
1 Alberta (Human Rights and Citizenship Commission) v. Kellogg Root & Brown (Canada) Company, 2007 ABCA 426
2 Prima facie is a Latin term used to mean that something is assumed to be true unless disproved by evidence to the contrary
3 Employers have a duty to accommodate their disabled employees, though the extent of the accommodation will be determined on a case-by-case basis having consideration for such factors as the type of position and what can be reasonably accommodated for such a position, the type of employment (full, part-time or casual), the length of the employment, and previous accommodation given to the employee
4 British Columbia (Public Service Employee Relations Commission) v. British Columbia G.S.E.U., [1999] 3 S.C.R. 3, known as the "Meiorin" case
5 A "bona fide occupational requirement" or "BFOR" is a term of art that is used by the courts to test whether a discriminatory practice is reasonable for the occupation; for instance, a bus driver cannot be blind
6 Alberta (Human Rights and Citizenship Commission) v. Kellogg Root & Brown (Canada) Company, 2007 ABCA 426, at paragraph 33
7 Supra, at paragraph 34
8 Supra, at paragraph 36
9 United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 488 v. Bantrel Constructors Co., 2007 ABQC 721; and PCL Industrial Constructors Inc. v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146, [2007] A.G.A.A. No. 65
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