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Print articleUpdate on Alberta Pre-employment Drug Testing Case
December, 2006 - Ms. Monica Balaski
The “Chiasson”(4) appeal is making headlines as it has the potential to force corporations to review and perhaps re-write their drug-testing policies and procedures.
Chiasson dealt with pre-employment drug testing. The Complainant had applied for and was offered a job as a receiving inspector at an oil sands project inFort McMurray , Alberta
The Complainant filed a complaint underAlberta
On review, the Alberta Court of Queen's Bench overturned the Commission’s decision. It is reasonably clear from the Court’s decision that the Court was concerned with the fact that the complainant was fired for a positive drug test based on conduct that occurred prior to his job interview. The Court was of the view that the fact the Complainant had no chance of complying with the employer’s policy was fundamentally unfair.
The Court made a number of significant findings, including:
- Anyone who tests positive under a drug and alcohol policy is entitled to protection whether they are actually disabled or perceived to be disabled. The perception of disability is to be determined by the wording of the policy and not the subjective beliefs of the employer. Since the employer treated all prospective employees who tested positive in the same way – as if they were drug dependent – it was discriminatory against the Complainant.
- Pre-employment testing does not reduce the risk of future impairment at work or improve safety because drug tests do not establish current or future impairment.
- An employer has a duty to accommodate anyone who tests positive in a pre-employment drug test and the employer could not automatically terminate or withdraw the offer of employment. The Court further concluded that accommodation was possible in this case since the employer had allowed the individual to work for a week before the test results were known.
On July 28, 2006, a Notice of Appeal was filed by the employer with the Court of Appeal ofAlberta
(1) To what extent must an employer "accommodate" a recreational user of illegal substances, whose pre-employment drug screen discloses the presence of drug metabolites, but who suffers no disability?
(2) In order for the duty to accommodate to arise, does the onus lie on the individual to assert a disability or does the onus lie on a prospective employer to seek out the employee's disability? In other words, if there is a positive drug test, is the prospective employer required, at its expense, to arrange for an assessment of drug dependency?
(3) Is it appropriate for a Court to deem an employer to have "perceived" a prospective employee to be disabled by drug dependency, where evidence shows that in fact there was no disability and there was no actual perception of disability?
(4) Does the duty to accommodate require an employer to hire a recreational drug user and then impose a further duty to hire special "drug-awareness trained supervisors" to monitor that worker for drug abuse?
As of the end of November 2006, no further documents have been registered with the Court in relation to the Notice of Appeal.
We will provide you with further updates on this case as new developments occur.
Monica Balaski
Chiasson dealt with pre-employment drug testing. The Complainant had applied for and was offered a job as a receiving inspector at an oil sands project in
The Complainant filed a complaint under
On review, the Alberta Court of Queen's Bench overturned the Commission’s decision. It is reasonably clear from the Court’s decision that the Court was concerned with the fact that the complainant was fired for a positive drug test based on conduct that occurred prior to his job interview. The Court was of the view that the fact the Complainant had no chance of complying with the employer’s policy was fundamentally unfair.
The Court made a number of significant findings, including:
- Anyone who tests positive under a drug and alcohol policy is entitled to protection whether they are actually disabled or perceived to be disabled. The perception of disability is to be determined by the wording of the policy and not the subjective beliefs of the employer. Since the employer treated all prospective employees who tested positive in the same way – as if they were drug dependent – it was discriminatory against the Complainant.
- Pre-employment testing does not reduce the risk of future impairment at work or improve safety because drug tests do not establish current or future impairment.
- An employer has a duty to accommodate anyone who tests positive in a pre-employment drug test and the employer could not automatically terminate or withdraw the offer of employment. The Court further concluded that accommodation was possible in this case since the employer had allowed the individual to work for a week before the test results were known.
On July 28, 2006, a Notice of Appeal was filed by the employer with the Court of Appeal of
(1) To what extent must an employer "accommodate" a recreational user of illegal substances, whose pre-employment drug screen discloses the presence of drug metabolites, but who suffers no disability?
(2) In order for the duty to accommodate to arise, does the onus lie on the individual to assert a disability or does the onus lie on a prospective employer to seek out the employee's disability? In other words, if there is a positive drug test, is the prospective employer required, at its expense, to arrange for an assessment of drug dependency?
(3) Is it appropriate for a Court to deem an employer to have "perceived" a prospective employee to be disabled by drug dependency, where evidence shows that in fact there was no disability and there was no actual perception of disability?
(4) Does the duty to accommodate require an employer to hire a recreational drug user and then impose a further duty to hire special "drug-awareness trained supervisors" to monitor that worker for drug abuse?
As of the end of November 2006, no further documents have been registered with the Court in relation to the Notice of Appeal.
We will provide you with further updates on this case as new developments occur.
Monica Balaski
