It is easy to get a thousand prescriptions but hard to get one single remedy,” goes a Chinese proverb. That’s apropos considering Canadian trucking companies’ opinion of the nation’s workplace drug-testing policies these last 10 years. After a string of decisions handcuffing employers who want to ensure a safe operation and comply with U.S. mandates, it appears a Canadian court has actually handed down a ruling that makes some business sense — at least in Alberta.

Last month, the Alberta Court of Appeal overturned a lower court judgment that stated a Fort McMurray construction company discriminated against an employee in 2002 when it fired him after he tested positive for marijuana.

The recent decision signifies an important break with many of the previous judgments on the issue. In fact, the court appears to be the first judicial body to plainly approve of pre-employment and random drug testing for employees in safety-sensitive, Canadian operations.

Originally, an Alberta Human Rights Commission sided with the company, Kellogg, Brown & Root (KBR), stating that it had the right to fire John Chiasson, who was hired to work on an oil-sands project near Fort McMurray.

That judgment was immediately vacated by Court of Queen’s Bench Justice Sheilah Martin, who, following most of the past relevant case law, said KBR should not have fired Chiasson because he could have been perceived to be addicted — and thereby disabled — under Canadian law.

But a panel of three Appeal Court justices disagreed in January, saying Chiasson (who admitted he was a recreational user of the hippie lettuce and not dependant) was legitimately let go because of the safety risk associated with the job.

This runs contrary to the precedent most courts and quasi-judicial human rights tribunals have been leaning on since the landmark Entrop vs. Imperial Oil case in 2000. In that ruling, the Ontario Court of Appeal basically concluded that companies couldn’t perform random or pre-employment drug tests. The court reasoned that, unlike alcohol testing which categorically shows impairment, drug testing does not.

A test, therefore, can detect the presence of drugs long after the mind-altering effects have worn off.

Furthermore, the ruling — which has been interpreted as gospel by subsequent human-rights tribunals and lower courts — stated that workers who test positive for drugs could not be terminated because they are disabled or “perceived” to be dependant on drugs.

Since then, Canadian trucking companies have been walking a legal tight rope — especially cross-border carriers who have been forced to balance the requirement for drug testing under U.S. law with Canadian human-rights legislation.

DUBIOUS DOOBIE RIGHTS:

The Alberta court differs from past case law in several significant ways. Unlike Entrop, which made no distinction between addiction and recreational use in disallowing drug testing, the Alberta court took a more nuanced view. More notably, it also factored in the matter of safety (imagine that) when making its decision.

“We see this case as no different than that of a trucking or taxi company which has a policy requiring its employees to refrain from the use of alcohol for some time before the employee drives one of the employer’s vehicles. Such a policy does not mean that the company perceives all its drivers to be alcoholics. Rather, assuming it is aimed at safety, the policy perceives that any level of alcohol in a driver’s blood reduces his or her ability to operate the employer’s vehicles safely,” the court stated.

The ruling is a sign that courts are continuing a trend to loosen
the reigns on employers who test for drugs for safety reasons.

“This is a legitimate presumption… extending human-rights protections to situations resulting in placing the lives of others at risk flies in the face of logic.”

Chris Andree, a labor policy attorney with Gowling Lafleur Henderson LLP in Kitchener, Ont., says that the decision is a clear sign that courts are continuing a trend to loosen the reigns on employers who test for drugs for safety reasons.

“The court is being more open to the idea of drug testing in safety-sensitive positions, effectively elevating the safety considerations to at the least an even ground with human-rights issues, and in some cases, above that. The Ontario Court of Appeal in Entrop was not open to that idea,” he says.
“The logic is that the guy is going to be in a safety-sensitive position and that the ability of a user of drugs to perform his work safely is a legitimate concern.”

The Alberta decision is also important for Canadian trucking companies because it is perhaps the first to comment on relaxed drug-testing rules specifically for Canadian operations. A previous case, first reported by Today’s Trucking in the summer of 2005, seemed to indicate that carriers could have an easier time fending off a human-rights challenge specifically for U.S. operations.

In that decision, the Canadian Human Rights Tribunal ultimately sided against a cross-border bus company that randomly tested an employee for drugs because the company’s written policy didn’t include a provision to accommodate him. The Tribunal did, however, acknowledge the impact on the company’s well-being if it lost its U.S. DOT operating licence as a result of a positive drug test.

While that was a breakthrough for U.S.-bound operations, the Alberta decision is far more reaching since it encompasses Canadian businesses. Plus, as Andree says, “it doesn’t rely on the business requirement ‘excuse’ that the Canadian Tribunal relied on in [the bus-company case].”
That isn’t all that separates the Alberta ruling from previous cases. As mentioned, Entrop and most decisions that followed were based on the mantra that positive marijuana testing couldn’t positively be linked to impairment. Although the Alberta judges don’t necessarily dispute that, they do acknowledge that new evidence shows “the effects of casual use of cannabis sometimes linger for several days after its use, making it as concerning as alcohol.”

In light of recent findings, ATA is urged Congress to fix problems with drug testing centers in the U.S.

Says Andree: “What it says is that you can still be impacted by marijuana even days later after using it. I don’t know that it’s a change from before, but I think it’s an acceptance that the [mind altering] effects might not be gone in 24 hours.”

GRASS GREENER IN ALBERTA?

The jury is still out on how this latest decision will affect any upcoming drug testing rulings in other provinces. In Ontario, says Andree, adopting the ruling would be a big step. “Let’s face it,” he quips (somewhat regretfully in this instance), “we ain’t Alberta …

“How would this policy apply in B.C., which is, shall we say, more left leaning? I don’t know.”

Still, over time the Alberta decision would be hard to ignore around the country, he says. “Eventually, I think it will be considered, because it’s the continuation of a trend. Other courts are influenced by trends and the kind of reasoning that supports them. The other thing is that the science used in this case is more up to date than evidence used [in Entrop].”

Regardless, the Alberta decision is an obvious victory for trucking companies who have gingerly navigated the complexity of drug testing rules while trying to maintain a safe environment for employees as well as the traveling public. Provided they have a clear, attorney-tested policy that accommodates legitimate drug-dependant employees, carriers who are hauled up before a human rights commission by a former pot-smoking driver may actually win a few of these cases in the future.

“Myself, I used to characterize this issue as a business dilemma: Do you want to do testing, or do you want to comply with human-rights legislation? It was one or the other,” says Andree. “Now, I don’t think it’s the same choice. I think you can do both as long as you do it properly. Previously, I don’t think there was any way to effectively do

SIDEBAR:

Government investigators posing as truckers in the U.S. have found several violations with how urine collection sites are processing samples for drug testing. Government Accountability Office (GAO) officials found that around the country many collection sites fail to follow DOT protocol, allowing drivers to easily tamper with samples. Also, drivers could send others using bogus driver’s licences to take drug tests on their behalf. In total, 22 of the 24 sites inspected didn’t properly follow DOT rules.

In addition, investigators attempted to use drug-masking products at four sites, and despite measures to catch such devices, none were discovered by the centers.

In light of the findings, the American Trucking Associations (ATA) urged Congress to fix the problem by establishing a centralized clearinghouse that alerts employers of positive drug tests.

The ATA also encourages the DOT to create a random testing rate requirement; ban the manufacture and sale of products designed to help drivers cheat; introduce hair-sample testing; and improve oversight of collection facilities.