Labor & Employment Law

Casual Pot Use Ruling Up in Smoke

By Michael Fitzgibbon

I had posted about how an Alberta judge had found in Alberta (Human Rights and Citizenship Commission) v. Kellogg that "casual pot use" was a disability within the meaning of the Human Rights, Citizenship and Multiculturalism Act.  Specifically, the chambers judge held that the employee had been the victim of discrimination based on the employer's perception that he suffered from drug addiction.

This was a case that received a significant amount of play in the media at the time and left many employers asking themselves some tough questions about how they would deal with this complex issue in future cases. 

Not surprisingly, the employer appealed and today the Alberta Court of Appeal released its decision allowing the appeal and overturning the lower court's decision.  The Court found that the Chamber's judge had made a palpable and overriding error in finding that KBR perceived Chiasson to suffer from drug addiction. 

In doing so, the Court held that:

.... the only basis on which the [employer] policy would be discriminatory against casual marijuana users, such as [the employee] would be if, as the chambers judge concluded, the effect of the policy is to perceive anybody testing positive as drug addicted and therefore disabled, and to impose restrictions, penalties, or differential treatment on those persons based on the perceived disability.

In this case the employer's "policy does not perceive [the employee] to be an addict. Rather it perceives that persons who use drugs at all are a safety risk in an already dangerous workplace."

The Court of Appeal, after analogizing this case to that of a trucking or taxi company that has a policy prohibiting the consumption of alcohol for some time before the employee gets behind the wheel of a company vehicle, offers that "extending human rights protections to situations resulting in placing the lives of others at risk flies in the face of logic."

This case will, no doubt, be well received by employers carrying on business in industries such as that in which the employer here was engaged. 

Full post as published by Thoughts from a Management Lawyer on December 28, 2007 (boomark / email).