PRE-HIRING DRUG TESTS UNDER ATTACK

The legality of pre-employment drug testing is an ongoing
battleground between employers and human rights tribunals (and,
ultimately, the courts).

The question of whether an employer can impose pre-employment drug
testing and disqualify candidates on the basis of a positive result
is one which raises difficult legal questions.

In order to understand why this battle continues to be fought, one
must be familiar with the workings of employment and human rights law.

The common law of employment really says nothing about the issue of
drug testing. That's because it is really just a branch of the law of contract.

Under the law of contract, the employer is free to select the person
with whom it will establish a relationship.

The employer is also free to impose conditions on the contract of
employment (and there is nothing preventing it from making a clean
drug test one of those conditions).

Employment standards statutes don't address issues relating to such
pre-hiring testing, either.

The whole issue of the legality of pre-employment drug testing arises
out of human rights law (in B.C., under the Human Rights Code or, for
federally regulated employers, under the Canadian Human Rights Act)
and the decisions which apply that law.

But even the application of human rights statutes in this context is
questionable.

That's because human rights statutes only prohibit discrimination on
certain identifiable grounds. One of those grounds is the existence
of a physical or mental disability.

There is no doubt in the law whatsoever that an employer must not
discriminate against a person with such a disability.

And, since an addiction to drugs is considered a disability, if
pre-employment drug testing had the effect solely of screening out
drug addicts then it would be prohibited by the human rights statutes.

Unless the employer could demonstrate the policy of drug testing was
adopted for a purpose rationally connected to the job, it was adopted
in a good faith belief that it was necessary, and it was otherwise
impossible to accommodate the individual without undue hardship to
the employer, the practice of testing would have to be halted.

The typical employer would argue that its intention in imposing
pre-hiring testing is simply to avoid hiring employees who are users
of illegal drugs. The employer would say that individuals who have a
recent history of drug use will make poor employees.

Issues ranging from absenteeism to the risks associated with
on-the-job impairment would be raised in support of the assertion
that these individuals are undesirable as employees.

And none of these reasons are necessarily dependent upon whether the
individual is actually addicted (and, thus, is disabled).

It's the use of illegal drugs (and what that says about the
likelihood of continuing use) that the employer is concerned about,
not necessarily whether or not the person is an addict.

So the question becomes one of whether simple users of illegal drugs
are protected by the human rights statutes or whether only addicts
are protected.

This is the battleground which was highlighted in a recent decision
by the Alberta Court of Queen's bench.

That decision considered the situation of John Chiasson, who was
offered a job by Kellogg Brown & Root but was dismissed only a few
days later after his drug test revealed recent marijuana use.

Chiasson filed a complaint of discrimination with the Alberta Human
Rights and Citizenship Commission.

The human rights tribunal dismissed Chiasson's complaint on the basis
that, while he was an admitted user of illegal narcotics, there was
no evidence he suffered a disability. The tribunal's decision was
appealed to the Court and was overturned.

The Court found that, despite the absence of evidence of an
addiction, and regardless of the employer's perceptions of him, the
drug testing policy assumed that a positive test meant the person was
likely to be impaired at work in the future.

The Court relied on logic which says that, through its pre-employment
drug testing policy, the employer demonstrated its belief that anyone
testing positive is a substance abuser.

On this basis, the Court found the policy to be discriminatory and
concluded that employers are not entitled to automatically terminate
an employee on the basis of a positive drug test.

I expect this decision will be appealed to Alberta's Court of Appeal,
and possibly beyond.

The weakness of the decision, in my view, is that it relies on leaps
of logic in order to achieve a result which is not necessarily
dictated by the governing statute.

Chiasson was not an addict (and, thus, disabled) nor was he perceived
by the employer to be an addict.

Nonetheless, he received the protection offered by Alberta's human
rights statute.

This is the sort of social engineering, in which tribunals and courts
sometimes engage, which infuriates employers because it further
limits their ability to select desirable candidates for employment.

In my view, the Court's analysis was tantamount to jamming a square
peg into a round hole.

The decision relied on the elimination of a distinction between those
who are truly addicted to illegal drugs and those who simply use them
for recreational purposes.

An interesting statistic was provided in evidence during the Court's
hearing -- only about 10 percent of those who test positive for drug
use are actually addicted.

The Court's decision took a statute which is intended to protect
disabled individuals (addicts) from discrimination and extended that
protection to the other 90 per cent of illegal drug users. In doing
so, it prevented employers from labeling individuals who engage in
this illegal activity as undesirable candidates for employment.

If provincial and federal governments had intended this result then
it would have been a relatively simple matter to insert the required
wording in the statutes.

Whether or not the Court's decision in this case is a positive one
depends on which side of the fence you sit on.

Canadian courts and tribunals have clearly, and repeatedly, indicated
that their intention is to extend the reach of human rights statutes
so as to afford this type of protection. Employers continue to fight
back (although, perhaps, to no real avail) to protect their freedom
to contract with only those persons they choose.

This is one battle which will continue to be fought for some time to come.

In the meantime, employers must assume that any pre-employment drug
testing policy is vulnerable to legal challenge.

This subject matter is provided for general informational purposes
only and is not intended to be relied upon as legal advice.

Robert Smithson is a partner at Pushor Mitchell LLP in Kelowna
practicing exclusively in the area of labour and employment law. For
more information about his practice, log onto www.pushormitchell.com.
If you have a labour or employment question for him to answer in a
future column, e-mail him at: smithson@pushormitchell.com.