Drug testing remains a hot issue for employers in Alberta. In May of 2005, the Human Rights Commission issued a decision in the Les Halter v. CEDA Reactor Limited case which has concerned many employers. The decision is based on the Panel’s finding of a perceived disability where no actual disability exists and then assesses the employer’s discharge of its duty to accommodate.
In this case, Halter worked as a dredge operator at a site in Fort McMurray, Alberta. Based on rumours that there was rampant drug use and alcohol abuse by the members of the crew, management conducted a drug test on each member of the crew on the basis of reasonable suspicion or reasonable cause. Seven of the fourteen crew members tested positive for illicit drugs in their systems above acceptable levels. Halter was one of these seven crew members. Halter was suspended for two weeks pending a second drug test. He was the only crew member who tested positive a second time. Halter’s employment was terminated for cause.
At the hearing, Halter argued that he did not have a drug dependency. He was forced to smoke marijuana once a day, before bed, in his hotel room to reduce stress. He argued that he did not smoke marijuana while on the job and he was in control of his use of marijuana. His employer, CEDA-Reactor, argued that because Halter didn’t have a drug dependency, he did not have a disability and could not be afforded the protection of section 7 of the Human Rights, Citizenship and Multiculturalism Act (Alberta). The employer’s expert gave evidence that reasonable cause testing should only be employed on the basis of observable behaviour and that a drug dependency must be determined by a professional.
The Panel found, on the evidence, that Halter did not have an actual disability. CEDA- Reactor took no steps to determine his level of dependency. Halter did not produce any medical evidence that he had a dependency and denied a drug use problem. The Panel found the test of all crew members was not a reasonable suspicion test because it was not based on objective observations of their individual behaviour, but was a random drug test "administered to catch those individuals whose performance on the job may have endangered the safety of the operation" on the premise that all crew members were perceived to be potential substance abusers.
The Panel then went on to discuss the duty to accommodate and found that CEDA-Reactor had failed in discharging this obligation. The Panel suggested that CEDA-Reactor could have moved Halter to a non safety-sensitive position and the offer of paid counselling and rehabilitation should have been reinforced. They also attacked CEDA-Reactor’s substance abuse policy which contained a self-reporting mechanism entitling those suffering from substance abuse issues to confidential counselling and rehabilitation. The Panel concluded it was discriminatory because those who disclosed an addiction would be rewarded by being offered an opportunity to rehabilitate and those who were in denial that a problem exists would be penalized twice; in termination and in not being accommodated by means of assisted rehabilitation.
This decision has not been appealed so until the law is further refined in this area, employers are left with a heightened obligation to justify reasonable cause drug testing of their employees and provide accommodation.
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