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Recreational Drug User Successful in Alberta Court
July 28, 2006

An employee who was terminated after he failed a pre-employment drug test recently convinced the Alberta Court of Queen’s Bench to overturn his termination.

Mr. Chiasson, a receiving inspector at the Syncrude plant in Fort McMurray, was fired nine days after starting work when his pre-employment drug test came back “positive” for cannabis use. He complained to the Alberta Human Rights and Citizenship Commission, which concluded that the employer’s drug testing policy was discriminatory but dismissed his complaint because he was merely a recreational drug user rather than a drug addict. As a recreational user, the Panel said, he did not have a disability that triggered application of the Alberta Human Rights, Citizenship and Multiculturalism Act.

On appeal, the Court endorsed the Panel’s view that the policy was discriminatory both because it provided for automatic termination of an employee who tested positive for drug use without regard to his personal circumstances and because it did not allow consideration of whether he could be accommodated. Unlike the Panel, though, the Court went on to find that Mr. Chiasson had been subject to discrimination, even though he was not disabled because he was not addicted to drugs, because the employer had treated him as if he was a drug abuser. The employer breached his human rights, the Court said, by terminating him because of a perceived risk he might be impaired on the job some time in the future.

This case serves as a cautionary reminder to employers that:

1. a pre-employment drug testing policy must allow for consideration of the applicant’s individual circumstances in determining the consequence of a positive result and must provide for accommodation of disability; and

2. an employee who is subject to discrimination because his employer perceives him to be disabled may be entitled to the same protection as an employee who actually is disabled.

Alberta Human Rights and Citizenship Commission v. Kellogg Brown & Root [2006] A.J. No. 583