Recent ruling examines scope of accommodation in safety-sensitive roles
The Court of King's Bench of Alberta recently dealt with an appeal that tested the boundaries of workplace drug testing and accommodation.
The case centred on a worker who questioned whether his employer's response to a non-negative drug test and subsequent treatment requirements were discriminatory under section 7 of the Alberta Human Rights Act.
After receiving a non-negative drug test result, the worker faced suspension and was required to attend residential treatment.
He challenged these decisions, arguing that alternative treatment options existed and that the employer's assessment process was flawed.
The worker was a journeyman millwright assembler who started working for the employer in August 2010. His role was designated as safety-sensitive, which meant he had to undergo periodic drug testing according to the organisation's Drug and Alcohol Testing and Search Policy.
In March 2016, he took a random drug test that showed "non-negative" results for cocaine. The worker admitted to using cocaine 4-5 days before the test but maintained that it didn't affect his job performance.
He also disagreed with the subsequent assessment that he had a substance abuse disorder. The Court noted: "there is no evidence to show that the 'non-negative' test was ever confirmed under the Policy to have in fact been a positive test."
After the test results, the employer suspended him and directed him to see a Substance Abuse Professional (SAP) at Lifeworks, a company contracted by the employer for such assessments.
The SAP, a registered psychologist with training in substance abuse assessments, met with him once for 60-90 minutes.
During the assessment, the SAP administered several screening tests, including the Michigan Alcohol Screening Test and the Drug Abuse Screening test. The Court noted an important detail about the SAP's qualifications:
"The Substance Abuse Professional gave evidence she does not consider her assessments to be diagnoses, and she did not advance qualifications in diagnosing substance abuse disorders."
The SAP concluded that the worker needed to complete a 19-to-26-day residential treatment programme. When the worker sought alternatives, including a government facility in Medicine Hat, he was unsuccessful because he wouldn't acknowledge having a substance abuse disorder.
The worker then consulted an Alberta Health Services (AHS) counsellor and requested that the SAP discuss his case with them. The employer agreed but required him to sign a release form due to privacy concerns. He declined to sign and instead filed a human rights complaint.
The Human Rights Tribunal initially ruled that discrimination had occurred. The Chairperson stated: "In providing her assessment and recommendations the SAP was not engaged in an objective diagnosis and treatment exercise. Rather, she was engaged with an expressed predilection to focus on potential risks to safety in [the employer's] operation."
The Tribunal emphasised that while the drug policy itself was valid, its implementation was flawed: "The facts themselves establish that attendance by [the worker] at a residential treatment program was not required. [The employer] gave no acceptable explanation for its refusal to consider [the worker's] suggestion of attending a day treatment program."
The employer appealed this decision, arguing that the Tribunal misapplied the Meiorin test, which determines whether a discriminatory standard qualifies as a bona fide occupational requirement.
The Court disagreed with the Tribunal's conclusions. It found that "[The employer] and its agent Lifeworks, were stymied. The professional they had properly engaged had made a recommendation. [The worker] disagreed with the recommendation, but failed to sign the Release to allow for further discussion and determination."
The Court highlighted a crucial gap in the accommodation process: "Therefore, if it was the case that the AHS counsellor was in favour of a day treatment program and could enunciate reasons why, that possibility could not be pursued by [the employer]. [The worker] had blocked any such conversation."
Finally, the Court emphasised the worker's responsibility in the accommodation process: "In order to make out a case of discrimination, it was incumbent on [the worker] to put forth evidence as to how he could have been accommodated by [the employer]. He failed to do so. It was not appropriate for the Chairperson to conclude, on her own, that a day treatment program was an alternative which [the employer] should have accepted."
