'HIGH' EMPLOYMENT

Which do you like better, getting stoned or getting paid?

Without saying a word, the Supreme Court of Canada has apparently
given the nod of approval to companies that ditch applicants or
workers who pose a potential safety risk because of drug use.

In 2007, the Alberta Court of Appeal ruled that Kellogg Brown and
Root (KBR) had the right to fire a man from his job at Syncrude
Canada Ltd. in Fort McMurray because he failed a pre-employment drug test.

And in a recent decision, the Supreme Court dismissed an application
for leave to appeal that ruling, essentially giving the Alberta Court
of Appeal judgment significant weight.

"It's a very sensible decision that I'm sure will be followed by
courts of appeal in other provinces," says lawyer Peter Gall, who
acted for several intervenors in the KBR case, including the Coal
Association of Canada and the Mining Association of British Columbia.

"You have no right to use drugs and work in a safety-sensitive
workplace," he explains. "It's indicative of the trend now on the
part of adjudicators ... to recognize that we have to be giving
greater weight to safety."

Five years ago, John Chiasson was fired from his Syncrude job when he
failed the pre-employment drug test.

After KBR dismissed him, Chiasson complained to the Alberta Human
Rights Commission that he was being discriminated against on the
basis of disability.

Absurd

The grievance was absurd since he was a self-admitted casual pot
smoker, not an addict.

A human rights commission tribunal dismissed his complaint but, in a
bizarre ruling, an Alberta Court of Queen's Bench justice
subsequently declared that Chiasson should be treated as if he had an
addiction and given help.

Help for an occasional pot smoker? Reaching the chips, perhaps. The
Alberta Court of Appeal eventually set everyone straight, agreeing
with KBR that people who use drugs at all "are a safety risk in an
already dangerous workplace."

It didn't matter than Chiasson smoked pot on his own time since the
effects of pot last for days, the appeal court explained.

"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," the court noted.

Gall said he hopes the Supreme Court takes on a case involving
workplace drug testing soon. "I think it's important for (the court)
to ... make it clear to everybody that safety is a big, big problem
and human rights law does not trump safety concerns."

In the meantime, however, the fact that the top court dismissed leave
to appeal the Alberta Court of Appeal decision speaks volumes, he says.

The Alberta Court of Appeal ruling is now the primary case in the
country on pre-employment drug testing, says Gall. "No employer is
under any obligation to hire somebody ... who's using drugs - whether
it's casual use or addicted use."

Help Them

The broader message is that employers won't countenance drug use and
are prepared to help workers with substance-abuse problems get help, he adds.

"The thing you want to avoid is people thinking that they don't have
to deal with their problem until they've had an accident."

A future legal tussle on the horizon on this issue may be about
whether random drug testing of workers in safety-sensitive positions
should be permitted. It's been done widely in the U.S. for years.

The next workplace accident involving drugs just might be the tipping point.