Canada: Human Rights Obligations Following A Positive Drug Test

In Maude v NOV Enerflow ULC, 2019 AHRC 54, the Human Rights Tribunal of Alberta provided some helpful reminders to employers on  the intersection of drug test results and human rights.

In March, 2016, Mr. Maude tested non-negative for drugs following a random drug test.  He was immediately removed from work, without pay, and asked to attend a one-hour assessment with a substance abuse professional (a “SAP”). The SAP determined that Mr. Maude was at risk of a severe substance use disorder for alcohol and cocaine. She recommended that Mr. Maude complete a residential treatment program.

Mr. Maude denied that he suffered from an addiction, but informed his employer that he was willing to comply with the recommendations so that he could go back to work. He proceeded to apply to a residential treatment program, but his application was rejected. Mr. Maude then asked his employer whether he could attend an outpatient treatment program instead. The employer’s answer was no. Mr. Maude filed a human rights complaint.

While he was still off work, Mr. Maude made his own arrangements to participate in a second one-hour assessment with a different SAP. Following this assessment, the SAP concluded that Mr. Maude did not meet the criteria for a disorder. Mr. Maude was then returned to work. By this time, he had been off work for approximately 16 months.

The Tribunal determined that the employer had discriminated against Mr. Maude. In reaching this conclusion, the Tribunal highlighted the fact that the initial one-hour assessment with the substance abuse professional was unreliable. In this regard, the Tribunal cited concerns about the SAP as well as evidentiary concerns. With respect to the SAP herself, the Tribunal pointed out that:

• There was no evidence regarding what specific qualifications are necessary for a person to conduct these types of assessments;
• In this case, insufficient evidence was given to substantiate that the SAP had the academic and practical training to prepare or qualify her to conduct these types of assessments; and,
• There was no evidence that the SAP had clinical experience in diagnosis, which the employer’s policy said that she would.

In terms of evidentiary concerns:

• The assessment involved a personal interview as well as several assessment tools. The tools consistently indicated a low or no risk for dependency, but the SAP relied instead on Mr. Maude’s answers during the interviews without explaining why; and,
• Mr. Maude was asked to answer questions based on his entire life and there was evidence that Mr. Maude used drugs and alcohol more when he was younger.

The Tribunal held that, quite apart from Mr. Maude’s beliefs about whether he had a disability, or a factual determination regarding disability, the employer’s actions were based entirely on its view that Mr. Maude had a disability. In other words, the Tribunal accepted that Mr. Maude had a characteristic that was protected from discrimination due to the fact that his employer perceived that he had a disability. The Tribunal went on to find that Mr. Maude experienced an adverse impact when he was removed from the workplace and then experienced a loss of income. The Tribunal held that the perceived disability was clearly a factor in the adverse impact.

Having established prima facie discrimination, the Tribunal considered whether the employer had accommodated Mr. Maude to the point of undue hardship. In this regard, the Tribunal agreed with the employer that an employer should not have to wait for a flagrant demonstration of an addiction on the part of an employee before requiring them to receive treatment. However, the Tribunal ultimately concluded that the employer failed to accommodate Mr. Maude to the point of undue hardship by virtue of the fact that the employer failed to even consider allowing Mr. Maude to participate in an outpatient treatment program.

As a remedy, the Tribunal ordered the employer to pay Mr. Maude his lost wages for the entire 16-month period of time that he was removed from work. The Tribunal also awarded general damages of $25,000 for injury to dignity and self-respect.

While not a “cannabis case”, the Tribunal’s decision provides a number of helpful lessons for employers to keep in mind when they are faced with non-negative or positive drug test results.

First, a non-negative or positive drug test result does not automatically equal addiction or substance dependency. If employers are too quick to make this leap, they run the risk of discriminating against the employee based on a perceived disability. In addition to the drug test result, employers should seek additional evidence to substantiate that the employee actually has a disability.

Second, when it comes to the additional evidence, employers should be extremely cautious about where or who the evidence comes from. This is particularly true in cases involving cannabis, where there’s still relatively little consensus around issues like impairment, addiction and dependency. In any case, the employer will want to ensure that the individual or entity performing the assessment meets the industry standards as well as any standards set out in the employer’s policy. In Maude, there wasn’t even evidence that the SAP had clinical experience in diagnosis, which the employer’s policy specifically said that the person performing the assessment would. Related to this, the employer will also want to review the assessment to ensure that it appears to be fair and reasonable. If there’s conflicting evidence, does the assessor explain the discrepancy and why they prefer certain evidence over other evidence?  

Third, even if an assessment results in specific recommendations, the employer must still consider their obligation to provide accommodation to the point of undue hardship. In Maude, the Tribunal clearly held that, just because the SAP recommended a residential treatment program, the employer still ought to have at least considered whether Mr. Maude could attend an outpatient treatment program instead. In these situations, employers should initiate a dialogue with the assessor in order to determine whether some other option may be appropriate and tolerable .

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.