Pre-employment Drug Testing
Lang Michener Employment and Labour Brief
In recent years, employers have become increasingly aware of the importance of fostering and maintaining a safe, drug-free workplace. Especially in safety-sensitive jobs or industries, when employees report to work under the influence of drugs, the result can be catastrophic both in financial and human terms.
Some employers have responded to this risk by establishing pre-employment drug testing policies. Implemented at the hiring stage, such policies aim to identify and screen out applicants whose past history of drug use may point to an unacceptable risk of reporting to work under the influence of drugs.
A recent Alberta Court of Queen's Bench decision, Alberta Human Rights and Citizenship Commission v. Kellogg, Brown and Root, raises important issues for employers who may be considering establishing a pre-employment drug testing policy. As the Court in Kellogg makes clear, pre-employment drug testing is not prohibited in law; however, any policy which provides for the automatic rejection of any applicant who tests positive for drugs is almost certainly going to be found to contravene human rights legislation.
In Kellogg, the employer established a policy which required non-union employees to take and pass a pre-employment drug test as part of the interview and screening process. Under the policy, any prospective employee who failed the drug test would not be considered further for employment. In Kellogg, the employer learned that one job applicant, Mr. Chiasson, had tested positive for marijuana. Although Mr. Chiasson had already begun working for the employer by that time, he was immediately terminated.
Mr. Chiasson took his case to the Alberta Human Rights and Citizenship Commission, alleging that he was discriminated against contrary to the Human Rights, Citizenship and Multiculturalism Act on the basis of a real or perceived disability. However, the Commission dismissed his complaint. The Commission accepted Mr. Chiasson's evidence that he was strictly a recreational user. On that basis, the Commission concluded that he was not disabled because he was not addicted to marijuana and that, in any event, the employer had not perceived that he suffered from any disability. Accordingly, the Commission found no violation of the Act, since the employee had not established a case of discrimination on the basis of a disability, real or perceived.
On appeal, the Alberta Court of Queen's Bench overturned the Commission's decision. With respect to the issue of discrimination on the basis of a real or perceived disability, the Court stressed the broad meaning of ‘perceived disability' and the importance of discriminatory effect rather than intent. The Court concluded that "the effect of the KBR Policy on pre-employment drug testing [was] to exclude addicted individuals on the basis of actual disability and non-addicted and non-impaired employees from employment based on a perceived disability," thus "the KBR Policy constitute[d] prima facie discrimination based on disability." The employer was automatically rejecting those applicants with positive test results based on its perception that those applicants would be more likely to work while impaired, regardless of whether they suffered from clinical addiction. By so doing, the employer was discriminating against applicants on the basis of both real and perceived disabilities.
Having found sufficient evidence of discrimination, the burden shifted to the employer to prove a non-discriminatory purpose to its policy. Applying the three-part test from British Columbia (Public Service Employee Relations Commission) v. British Columbia G.S.E.U. (Meiorin),  3 S.C.R. 3, the Court concluded that the employer failed to prove that its drug testing policy was rationally connected to job performance and further, failed to prove that the policy was reasonably necessary and that accommodation would have been impossible without undue hardship. Specifically, the Court determined that the link between a positive pre-employment drug test and subsequent workplace impairment was "tenuous" given that a positive test does not show future impairment, or even likely future impairment on the job. The Court also concluded that the employer could have accommodated employees without undue hardship by implementing measures such as grace periods, re-takes or drug counselling the employer. Since it would have been possible for the employer to accommodate, the policy was held not to be reasonably necessary. Accordingly, the employer's drug testing policy was held to be discriminatory and therefore unlawful, having failed both the first and third part of the Meiorin test.
The message employers can learn from Kellogg is to not rely solely on positive pre-employment drug test results to automatically reject job applicants from further consideration without running afoul of human rights legislation. Instead, any drug testing policy must include a process whereby the individual circumstances of job applicants who fail the test will be investigated, and depending on those circumstances, possibly hired and then accommodated by the employer. As a practical matter, employers should implement any potential pre-employment drug testing policy as only one facet of a larger process of assessing drug abuse.