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Drug Testing in the Workplace - Interesting Case


StoneMtn
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To me, this is an interesting case that was just denied leave to be heard at the Supreme Court of Canada level. The following is a summary, but in a nutshell it means that if your employer forces you to undergo a drug test, and then fires you due to the results of those tests, you do not have grounds to make a human rights complaint. The Supreme Court of Canada does not even believe that the matter warrants an appeal to the country's highest court, so it's over.

Interesting.

EMPLOYMENT LAW: DRUG TESTS

The Respondent company KBR's hiring policy required all persons seeking non-unionized positions at KBR to take and pass a "post-offer/pre-employment" drug test before they would be hired.

Mr. Chiasson, a recreational marijuana user, was terminated shortly after he began work with KRB because of a positive result in a pre-employment drug test. Mr. Chiasson filed a complaint with the Alberta Human Rights and Citizenship Commission, alleging discrimination in employment practices on the grounds of physical and mental disability, contrary to s. 7(1) of the Human Rights, Citizenship and Multiculturalism Act , which dismissed the complaint.

The chambers judge allowed the appeal. The C.A. allowed the appeal and restored the decision of the Human Rights Panel.

Director of the Alberta Human Rights and Citzenship Commission, et al. v. Kellogg Brown & Root (Canada) Company (Alta. C.A., December 28, 2007)(32505) "with costs."

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Alberta is idiotic. There's more crack and meth heads out there than anywhere because of the piss tests. Ft McMurray is like a big crack house.

There must be something about either crack, meth, or piss tests that I'm unaware of, but now I'm interested. How do piss tests cause an increase in crack and meth heads? Do these drugs pass through your system quickly enough to not get picked up by piss tests?

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I actually didn't read the original judgment for those facts, until I saw your question. I'll just set out the facts verbatim here, but I now see something else interesting. The Human Rights Tribunal actually did find that there would have been a case for this guy, if he had been addicted to marijuana. Unfortunately for him, he was not.

Facts

3 KBR is a construction company working in the Fort McMurray area of Alberta and elsewhere. In the summer of 2002, it assisted Syncrude Canada Ltd. ("Syncrude") in its plant expansion in the Fort McMurray area. The project was massive. Several thousand workers worked at the site; many involved in the plant expansion, and others carrying out Syncrude's existing production of synthetic crude oil from oil sand. Several different companies were engaged for the expansion and much of the work involved integrating workers from various corporate entities. The work site was a literal anthill of activity, where construction at many levels was integrated with production at many levels. Some of the largest industrial equipment on the planet was in use and the accident risk was high. Consequences of accidents could impact workers, the plant and the environment.

4 At the time, KBR's hiring policy required all persons seeking non-unionized positions at KBR to take and pass a 'post-offer/pre-employment' drug test before they would be hired. If the prospective employee failed the test, he or she would not be hired; however, the policy also provided that prospective employees would be eligible for consideration six months after the date of the failed test. KBR's policy applies to all employees and contractors. Its intent is stated upfront:

... [T]o prohibit impairment from the use of alcohol, controlled or prohibited substances by Company Employees or Contractors while they are engaged in Company activities, and to prohibit the possession and sale of prohibited and controlled substances. Prohibition from impairment is enforced through testing. As the use of alcohol or prohibited or controlled substances may adversely affect the ability of a person to work in a safe manner, the presence of them in the body is prohibited as set out in this Policy. ... [E134]

5 On June 24, 2002, a recruiting specialist with KBR, Leanne Aysan, contacted Chiasson regarding a position with KBR as a receiving inspector at the Syncrude UE-1 expansion project in Fort McMurray. On June 25, 2002, Gary Fowler, Quality Assurance Manager with KBR, conducted a telephone interview with Chiasson. According to Chiasson's human rights complaint and his testimony (p. 42), Aysan informed him later that day of the requirement that he take and pass a pre-employment medical and drug test. By letter dated June 26, 2002, KBR offered Chiasson the position for a fixed term of 21 months beginning July 8, 2002, subject to the "results from [his] pre-employment medical and drug screen". Attached to that letter were terms and conditions of employment, including:

1. Compliance with the Halliburton KBR policies and procedures which may be reasonably amended from time to time.

2. Successful completion of the Company pre-employment medical and drug screen.

6 Chiasson took the pre-employment drug test on June 28, 2002 and started working for KBR on July 8, 2002. Chiasson had smoked marijuana on June 22, 2002, but did not tell anyone at KBR that he had done so and did not ask that the test be delayed to a later date, assuming the marijuana would have cleared his system by June 28, 2002.

7 On July 17, 2002, KBR received the test results and its medical director informed Chiasson that he had failed the test. Chiasson then admitted to using marijuana five days before his test. On the same day, Chiasson sought advice from Aysan, who told him to leave the work site and fly to Calgary the next day to "sign some papers". On arrival in Calgary, Chiasson met with Aysan and Doug Dickie, KBR's administrative manager, who advised Chiasson that his employment was terminated because he failed the pre-employment drug test. Dickie also stated that drug use was not allowed on the work site.

8 On October 22, 2002 Chiasson filed a complaint with the Alberta Human Rights and Citizenship Commission ("HRCC"), alleging discrimination in employment practices on the grounds of physical and mental disability, contrary to s. 7(1) of the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14 (the Act). Chiasson was supported and joined in his submission by the Director of the HRCC (the "Director").

9 Chiasson's complaint, at pp E209- E212 of the appeal book, is specific in nature in that it complains about his treatment by KBR. The basis of his complaint appears to be twofold: 1) he alleges that KBR as a subcontractor was not required to apply the pre-employment medical and drug tests; and 2) he claims that a subsequent denial of employment with a different employer was based on his KBR drug test results, which he understood to be private and confidential. The former allegation constitutes the only general reference to the KBR policy. There is nothing in Chiasson's complaint suggesting it is a claim of discrimination on behalf of anyone other than himself.

10 At the human rights hearing, Chiasson testified that he was a recreational user of marijuana and that he was not addicted to it. All witnesses for KBR who had dealings with Chiasson, and who testified at the hearing, stated that they did not consider Chiasson to be addicted to marijuana.

Human Rights Panel Decision

11 The Human Rights Panel, chaired by HColonel (Ret'd) Delano W. Tolley, issued its decision on June 7, 2005. The panel analysed the following four issues:

1) Did the complainant suffer from real physical and mental disabilities with regard to this situation as stated in the complaint and as defined by appropriate legislation;

2) Was there a "perceived disability" on the part of the respondent;

3) Was the complainant subject to discrimination on the part of the respondent; and

4) The appropriate remedy, if any, that should be applied.

It also reviewed the evidence presented by the Director, on behalf of both the Commission and Chiasson, together with the evidence of witnesses for KBR. It then dealt with each of the four issues.

12 Based on Chiasson's uncontradicted testimony that he was not addicted to cannabis and was only an occasional, recreational user, the panel held that no actual disability due to drug addiction was demonstrated. It concluded that because Chiasson was employed in a safety sensitive position at a hazardous work site, there was also no perceived disability. The evident logic being that if KBR had perceived disability on the part of Chiasson, it would not have assigned him to that type of work.

13 The panel then concluded that drug testing was prima facie discriminatory with respect to addicted persons. It also determined that had Chiasson demonstrated an actual or perceived disability, KBR's drug testing policy would have failed to totally accommodate, as required by the third part in the three-part test articulated by the Supreme Court of Canada in British Columbia...

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Do these drugs pass through your system quickly enough to not get picked up by piss tests?

Yes, whereas smoking a joint stays with you for weeks. Being a construction worker, I know a few "transient" workers who refuse to go to work in Alberta because they don't like working with crackheads (it tends to get a little unsafe). A lot of these guys don't even smoke pot and they won't go there.

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How do piss tests cause an increase in crack and meth heads? Do these drugs pass through your system quickly enough to not get picked up by piss tests?

Smoking one joint will stay in your system for 14 days unless you're a chronic then it can stay in your system for up to 3 months after quiting.

Crack/cocaine stays in your system for 1-4 days.

Methadone 8-10 days.

Here's the list of most drugs:

Alcohol 24 hours

Amphetamines 2-5 days

Barbiturates (Short-Acting) 1-5 days

Barbiturates (Long-Acting Barbital, Phenobarbital) 2-4 weeks

Benzodiazepines 7-10 days

Cannabinoids (THC, Marijuana) 14-90 days

Clenbuterol 4-6 days

Cocaine 1-4 days

Codeine 8-10 days

Euphoric (Mushrooms) 1-7 days

MDMA (Ecstasy) 1-7 days

Ketamine (Special K) 9-14 days

LSD 1-7 days

Methadone 8-10 days

Nicotine (Cigarettes) 3-7 days

Opiates 8-10 days

Peptide hormones undetectable

Phencyclidine (PCP) 2-4 days

Phenobarbital 10-20 days

Propoxyphene 6 hours to 2 days

Steroids (anabolic oral) 14-28 days

Steroids (anabolic parenterally) 1-3 months

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If I worked for the Children's Television Workshop, and had to come up with a character that'd help kids understand ratios and fractions, I'd create a rapper, and call him "50 Per Cent."

After which I'd fully expect the CTW to demand regular and randomly-scheduled drugs tests from me.

Aloha,

Brad

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If I worked for the Children's Television Workshop, and had to come up with a character that'd help kids understand ratios and fractions, I'd create a rapper, and call him "50 Per Cent."

After which I'd fully expect the CTW to demand regular and randomly-scheduled drugs tests from me.

Aloha,

Brad

Would your alias be B-Units?

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