EDMONTON (Canadian OH&S News) -- Alberta's Court of Queen's Bench has ruled that Kellogg, Brown & Root Company (KBR) was wrong to fire an employee after he tested positive for marijuana in a pre-employment drug test.

The court struck down the firm's pre-employment drug testing policy, finding it was in violation of the provincial human rights law.

When John Chiasson was hired by KBR as a receiving inspector for a Syncrude Canada project in Fort McMurray, Alberta, he was tested for drugs as a condition of employment. Chiasson reported for work in July 2002 and was on the job for just over a week when the test came back positive for marijuana and Chiasson, a recreational marijuana user, was terminated.

He complained to the Alberta Human Rights and Citizenship Commission that KBR had discriminated against him when it withdrew its employment offer. Drug and alcohol dependencies, whether actual or perceived, are forms of disability under human rights law which employers are required to take reasonable steps to accommodate, short of "undue hardship."

The panel dismissed the complaint, arguing that KBR had no reason to perceive disability in Chiasson's case, so no accommodation could reasonably have been expected (COHSN August 29, 2005). The court quashed that decision and upheld Chiasson's complaint.

KBR was ordered to revise its drug and alcohol policies. KBR must discontinue its pre-employment drug testing, or alternatively, if it can demonstrate that pre-employment testing is necessary for deterring impairment on the job, it must offer a process of assessment or accommodation to individuals failing a pre-employment drug tests.

The case is expected to be appealed in the Alberta Court of Appeal.

A balancing act for employers
Employers are watching the case carefully, says Barbara Johnston, a lawyer in Stikeman Elliot LLP's Calgary office.

"A lot of employers in Alberta are implementing [drug testing] policies in response to Bill C-45, in response to their enhanced obligations under oh&s legislation in Alberta, and obviously because of the intense safety risks on industrial construction projects, in particular in oil-and-gas."

For that reason, the KBR decision is troubling from an "employer liability perspective on the health and safety side," she says.

On a more positive note for employers, the decision sets out clearly why employers have the right to assess whether employees are capable of performing their duties safely, Johnston adds.

Just how to go about that is the critical question workplace parties have been struggling with, says Ritu Khullar, counsel with Chivers Carpenter, an Edmonton law firm that represents labour organizations and workers.

Legal arguments for drug testing usually founder on the analysis used to determine whether or not there is a rational connection between the testing that the employer wants to do and promoting a safe workplace, she says.

In order to promote a safe workplace, an employer is concerned about impairment and whether or not somebody can function on the job. But drug testing doesn't measure impairment, Khullar notes.

"You send somebody for a urinalysis test, and it might show them positive because they smoke marijuana 10 days ago, but it has nothing to do with how they can function in the workplace. You can't actually prove that linkage."

Employers also have a tricky job of balancing the protection of privacy rights and dignity of the person with the need for safety on the job.

"No one's going to dispute that it's a good thing to want a safe workplace, but at what cost, and how do you achieve that?" Khullar says.

KBR's pre-employment test treated Chiasson as an addict, even though the employer's evidence is that only ten percent of those who test positive are likely to be impaired at work, the decision said. "Not only does that mean that there is discrimination against those who are addicted, it treats the other ninety percent as if they were addicted and would be impaired at work," Judge Sheilah Martin states.

The focus should not be on whether particular employees at KBR believed Chiasson was drug-dependent, but whether, "by the plain reading and clear operation of the company policy, KBR assumes him to be." The policy as a whole, in other words, operated with the effect of discriminating against Chiasson and other employees in the same circumstances.

The court said there was no reasonable justification for the policy.

The fact that Chiasson worked for nine days created difficulties for KBR. It called into question the link between a positive drug test and impairment at work. Despite the positive drug test, Chiasson was not impaired at work and the employer rated his work highly. Second, the employer chose to allow Chiasson to work without receipt of the test results, "calling into question its claim that such testing is essential and that Mr Chiasson worked in a safety sensitive position."

No accommodation was considered
Also problematic was the fact that Chiasson could have been treated as an existing employee for the purpose of determining the level of accommodation required. Non-unionized KBR employees who test positive in post-accident or reasonable cause testing are not fired, but kept on salary and referred to the employment assistance program for assessment.

Although the decision might be viewed as a setback for workplace drug testing, it only applies to the KBR policy in question. Alberta's status as a hub of workplace drug testing doesn't appear about to change.

Barbara Johnston, the Calgary lawyer, says cases involving workplace drug testing policies are coming up regularly in grievance procedures and privacy disputes. "Stay tuned, I think there's more to come."