The Alberta Court of Appeal released its much awaited decision dealing with drug and alcohol testing on December 28, 2007. The case involved an admitted casual user of marijuana (Mr. Chiasson) who was terminated from his employment with KBR after failing a pre-employment drug and alcohol test. He filed a complaint with the Alberta Human Rights and Citizenship Commission claiming that he had been discriminated against. The Human Rights Panel which initially heard the complaint dismissed it because Mr. Chiasson was not addicted and therefore, did not have a disability. The Court of Queen's Bench reversed the Panel's decision on the basis that KBR's drug and alcohol policy excluded Mr. Chiasson from employment based on the perception that he was drug dependent (and thereby suffering from a disability) and likely to report to work impaired.

The Court of Appeal overturned the Court of Queen's Bench decision and found that KBR's policy did not perceive individuals who test positive to be drug dependent. Rather, given that the purpose of the policy was to reduce workplace accidents by prohibiting workplace impairment, it perceived that "persons who use drugs at all are a safety risk in an already dangerous workplace." As the policy did not perceive Mr. Chiasson to be drug dependent, Mr. Chiasson was not discriminated against by KBR. Further, because there was no discrimination, KBR did not have to accommodate Mr. Chiasson as had been suggested in the Court of Queen's Bench decision.

In reaching its decision, the Court of Appeal relied upon evidence from the original hearing which showed that the effects of casual use of cannabis can sometimes linger for several days after its use, raising concerns regarding the user's ability to function in a safety challenged environment. This evidence allowed the Court to find that there was a clear connection between the policy and its purpose as it applied to recreational users of marijuana.

This decision is very important for any employer that has a drug and alcohol policy for safety reasons. While employer's do have a duty to accommodate employees with true disabilities due to drugs and alcohol, this decision confirms that employers do not have to accommodate employees who admit to being casual users only. It also recognizes that drug and alcohol policies have a role in managing risk in safety sensitive workplaces.

For further information regarding Alcohol & Drug Testing in Alberta, please join us in Fort McMurray on January 23, 2008 for our comprehensive Alcohol & Drug Testing Seminar. Register on-line at www.mross.com. This update is a general overview of the subject matter and cannot be regarded as legal advice. Please contact Hugh McPhail in Edmonton, Tom Ross in Calgary, Glenn Tait in Yellowknife, or any member of our Labour & Employment Practice Group for advice on this or any other labour & employment law topic.