COURT OVERTURNS DRUG-TEST FIRING

Pre-Employment Screening For Oilsands Job Discriminatory, Judge Rules

EDMONTON - An Alberta justice has ruled that a construction company
discriminated against a man when it fired him from an oilsands project
after his pre-employment drug screening tested positive for marijuana.

Justice Sheilah Martin said the man should have been treated the same
as someone with a drug addiction, which is considered a disability in
a growing body of human rights case law across Canada.

It is the first time that Alberta's Court of Queen's Bench has
addressed the issue of pre-employment drug testing under human rights
legislation.

While the judgment is specific to one company's policy, some are
calling it a significant decision that could place new legal limits on
when workers can be tested for drugs.

"It is important for all workers," said Leanne Chahley, an Edmonton
labour lawyer who regularly represents unions.

For one, she said, it means that a worker does not have to be disabled
to challenge a policy as discriminatory. It also means that companies
cannot use drug tests to automatically weed out potential employees
who test positive, she said.

"No one wants to encourage impairment at work, but a drug test is an
invasion of your privacy," Chahley said.

"It shouldn't matter to your employer what you might do on off-duty
time. That's your business. It's not your employer's (business) if it
doesn't affect your work.

"This ruling is an affirmation that drug testing is not something they
get to deal with in such a blunt way without any accommodation at all."

The case began in 2002, when John Chiasson was hired by Kellogg Brown
& Root for a job as a receiving inspector at Syncrude's plant north of
Fort McMurray. As a non-unionized employee, he was required to pass a
pre-employment drug test.

After taking the test, Chiasson was immediately put to work. Nine days
later, the company learned that his urine tested positive for the
active ingredient in marijuana. He admitted he had smoked pot five
days before the test and was immediately fired, as called for by the
company's zero-tolerance policy.

He complained to the Alberta Human Rights & Citizenship Commission,
which ruled he was not discriminated against.

Martin overturned that decision in a ruling handed down in May.

Though Chiasson never used drugs at work, the policy treated him as if
he had, Martin wrote. The requirement that he be tested for drugs with
an automatic penalty for a positive result is discriminatory, she said.

"The policy imposes a pre-employment barrier, with zero tolerance,
automatic termination and no accommodation," Martin wrote. "It bars
individuals from the workforce and a positive test result negatively
affects their livelihood."

Alberta human rights legislation prohibits discrimination under 13
grounds, including race, religious beliefs, and physical and mental
disabilities.

Andrew Robertson, the Calgary lawyer representing Kellogg Brown &
Root, said he could not comment on the decision.

Company officials could not be reached.

Construction Labour Relations president Neil Tidsbury, whose group
represents industrial, commercial and institutional construction
employers, warned against reading too much into the case.

The Chiasson case deals with specific circumstances, he said,
including the fact that the man had already been working for nine days.

The decision says more about what a company should do if someone tests
positive, Tidsbury said, than whether pre-employment testing is allowed.

"If there is a failure and if the person who fails the test was to be
assessed by a substance abuse expert, and if the path forward and the
consequences were determined on the basis flowing from the assessment,
then I think the employer would have gone a long way in respect to
accommodation," he said.

Companies that require employees to take a drug test before setting
foot in the workplace say they do so for safety reasons. Kellogg Brown
& Root argued that pre-employment drug testing was "a necessary facet
of a wider drug and alcohol strategy to counter the pressing danger of
the growing drug culture in Fort McMurray."

Syncrude officials testified that the company's lost time claim rate
dropped in recent years, in part because of its drug and alcohol
policy that includes testing of new employees.

"While impressive, it is not clear what portion of Syncrude's
improvement, if any, is the result of drug and alcohol testing,"
Martin wrote.

Martin also said the fact that Chiasson was allowed to work before
receiving the results of the drug test called into question both the
claim that such testing was essential and that he worked in a
safety-sensitive position.

The justice said the company should revise its policy to do away with
drug tests or take measures to accommodate those who fail them.

She urged Chiasson and the company to reach an agreement on damages
and said they two sides should appear before her again if they cannot.

At the time of the hearing, the company had 2,000 unionized and 400
non-union workers at the Syncrude site.