Kellogg Brown & Root: Discrimination and pre-employment drug testing

Recently, the Alberta Human Rights Commission sought leave to appeal to the Supreme Court of Canada (“SCC”) in the case of Alberta (Human Rights and Citizenship Commission) v Kellogg Brown & Root (Canada) Co, 2007 ABCA 426, a 2007 human rights law decision by the Alberta Court of Appeal that looks at whether a post-offer, pre-employment drug testing policy discriminates against casual cannabis users on the basis of perceived disability.

In the summer of 2002, Kellogg Brown & Root (KBR), a construction company in Alberta, assisted Syncrude Canada Ltd in its plant expansion in Fort McMurray. This project, described by the Court of Appeal as “massive,” involved production at many levels, as well as some of the largest industrial equipment in existence. The accident risk was “high” and “consequences of accidents could impact workers, the planet and the environment.” At this time, KBR had a hiring policy in place that required all applicants for non-unionized positions to pass a post-offer/pre-employment drug test before hiring. If the applicant failed this test, he would not be hired, but would be eligible for reconsideration six months after the date of the failed test.

On June 26, 2002, KBR offered John Chiasson a position in its company involving construction subject to the pre-employment/post-offer drug test. Chiasson took this test on June 28 and commenced work shortly after, on July 8, 2002. Prior to the test, on June 22, Chiasson smoked marijuana, but did not tell anybody at KBR or request that the test be postponed to a later date, as he was under the impression that the marijuana would have cleared his system before the date of the test. On July 17, 2002, however, KBR received his test results and Chiasson was informed that he failed the test. After admitting to his marijuana use, he was instructed to fly to Calgary, where he was informed that his employment was terminated as a result of his failed drug test.

On October 22, 2002, Chiasson filed a complaint with the Alberta Human Rights and Citizenship Commission (“HRCC”) on the basis that KBR had discriminated against him in their employment practices on the grounds of mental and physical disability, which contravened s. 7(1) of the Human Rights, Citizenship and Multiculturalism Act [now the Alberta Human Rights Act, RSA 2000, c A-25.5]. The Human Rights Panel found that Chiasson was not a drug addict, but rather a casual occasional user of marijuana. The panel held that, based on this finding, which Chiasson admitted to in his own testimony, there was no actual disability due to drug addiction demonstrated. Since Chiasson was employed in a “safety sensitive position at a hazardous work site,” no perceived disability existed either. Further, the HRCC concluded that KBR’s drug testing policy was discriminatory with respect to persons addicted to drugs, however, Chiasson did not fall into this category.

In reviewing the panel’s decision, the chambers judge reversed the HRCC’s decision, finding that KBR’s policy treated recreational cannabis users as if they were cannabis addicts, concluding that KBR must have therefore perceived Chiasson to be a ‘cannabis addict and thus disabled.” She then determined that this discrimination could not b e justified as a bona fide occupational requirement, instead stating that the policy “imposes a pre-employment barrier, with zero tolerance, automatic termination and no accommodation.”

The Alberta Court of Appeal allowed KBR’s appeal and restored the decision of the HRCC. In coming to this decision, the Court of Appeal confirmed that KBR did not terminate Chiasson’s employment based on a drug addiction, as he was only a casual user of cannabis, or on the perception that he is drug addicted. Rather, the purpose of the drug-testing policy is to minimize workplace accidents by prohibiting impairment at the workplace. Considering the evidence that the effects of cannabis use may remain for several days after its actual use, which may then negatively affect an employee’s ability to function in a potentially dangerous work environment where safety is a primary concern, the drug-testing policy is clearly connected to its purpose. As stated by the Court of Appeal in its decision,

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. 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 safely. This is a legitimate presumption. Its goal is laudable since carnage on the highways is a leading, but often ignored, cause of death nearing epidemic proportions. Extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.

The Court of Appeal went on to state that it would not deal with the issue of how KBR drug testing policy affected drug addicted persons generally, as Chiasson’s complaint only involved himself, rather than a broad class of individuals.

While the pre-employment/post-offer drug testing of individuals in jobs with potentially dangerous workplaces remains disputed, resulting in tension between human rights and workplace safety, should the SCC grant leave to appeal and decide to hear this case, there is the opportunity for the court to state a clear position with respect to this issue of pre-employment testing. As it stands now in Alberta, with this recent Court of Appeal decision, testing of applicants for drug and alcohol after receiving a contract but prior to commencing work is justified in certain circumstances for “safety-sensitive” jobs, even if it means that recreational users of drugs or alcohol will not be covered by human rights legislation in this regard should they test positive. While I can appreciate that workers want to be protected by human rights legislation and this pre-employment drug testing may constitute a breach of their fundamental rights, in employment positions that involve potentially dangerous machinery, whether it be machines used in construction or vehicles used to transport people, as described using the taxi example by the Alberta Court of Appeal, I believe that policies that implement testing for drugs and/or alcohol are certainly justifiable for “safety-sensitive” positions. Delayed reactions by these employees on the job, which may stem from their recent use of drugs or alcohol, may result in grave situations, including accidents which may not only harm the employees themselves (i.e. a machine removing a limb), but potentially, the greater public and planet at large as well, as in the case of a potential environmental disaster. In light of the severity of these risks, drug and/or alcohol testing in pre-employment situations outweigh human rights claims with respect to the testing.