No discrimination because individual didn't disclose disability
Can a job applicant expect accommodation for a disability that he didn’t disclose until a job offer was revoked? Not really, according to labour and employment lawyer Nathanael Bowles.
“Just because someone has a substance issue, or a substance shows up on a test, doesn't mean that an employer has to assume that there's a disability issue,” says Bowles, who practices at McLennan Ross in Calgary. “You can't make that leap of judgment - there has to be other factors and other circumstances that will lead you to think that there is a possibility of a disability.”
The Alberta Human Rights Tribunal adopted that approach in dismissing a discrimination complaint from a worker who had a job offer revoked after he failed a pre-employment drug test.
The worker developed anxiety, stress, and depression while with the Canadian Navy. He was diagnosed with Hashimoto’s disease, a condition with symptoms such as chronic pain, depression, and low energy.
The worker tried medication, but his doctor eventually advised against it. He started using cannabis to alleviate his symptoms once it became legal in 2018. He primarily used CBD oil, but his doctor didn’t prescribe it because he wasn’t authorized to. The worker didn’t have any medical advice on the amount to use; he figured out what worked for him with research.
The cost of the worker’s CBD oil and other medications was covered by health benefits from Veterans Affairs Canada because his disability arose from his military service.
Applied for safety-sensitive job
The worker applied for a job as a business continuity and emergency management advisor with Inter Pipeline, a multinational petroleum transportation and infrastructure company based in Calgary. The job posting described it as an administrative position done largely in the office with occasional trips into the field to conduct training.
The position was considered safety-sensitive because it involved not just office work, but also the operation of heavy machinery and equipment at a petrochemical project site and responding to emergencies at the site.
Inter Pipeline’s recruitment co-ordinator emailed the worker with a formal offer of employment that was conditional on a pre-employment drug test. The worker accepted the offer and said that he would give two weeks’ notice of resignation to his current employer. He never mentioned that he used cannabis.
Before taking the test, the worker completed a questionnaire for various health issues and medications. The testing company told him that cannabis was included in the test, but he didn’t say that he used it – an oversight that he attributed to feeling unwell and tired.
Random tests are not the answer to cannabis in the workplace, writes an employment lawyer.
Tested positive for cannabis
The test came back positive for cannabis and Inter Pipeline revoked the offer of employment. The worker asked if there was a way to work around the failed drug test and said that used CBD oil to alleviate his pain but he would stop. However, the company said that its decision was final.
According to the worker, he was devastated and his mental health issues worsened. He also couldn’t revoke the resignation from his previous job.
The worker filed a human rights complaint, alleging that Inter Pipeline discriminated against him on the ground of physical disability. He argued that the job offer was revoked because of his cannabis use, which was directly related to his disability.
Inter Pipeline did well to protect itself in its interview and pre-employment drug test process, says Bowles.
“[The company] gave opportunities for the individual to present disability issues by openly stating that the job offer was for a safety-sensitive position, there was going to be a drug test, and they provided a questionnaire giving him an opportunity to identify any substances that he could have had in his system [before the test],” he says. “So the employer did a good job of presenting opportunities for the [worker] to identify any disability issue that he might have and any potential accommodation he might need.”
“The [worker] didn't seize that opportunity, which was on him,” Bowles adds.
Workplace safety can trump individual rights against discrimination for drug testing in some circumstances, says an employment lawyer.
Three-part test
The tribunal agreed that the worker’s condition and related symptoms constituted a physical disability protected under the Alberta Human Rights Act. This met the first part of the three-part test for discrimination.
The tribunal also found that the worker met the second part of the discrimination test, as the revocation of the job offer deprived him of the opportunity to work and earn a salary, and therefore it was an adverse impact.
The assessment came down to the third part of the discrimination test – whether the worker’s disability was a factor in the adverse impact.
The tribunal found that Inter Pipeline did not know and ought not to have known that the worker had a physical disability. The worker did not disclose it or his cannabis use in the interview or when he received the job offer, even though he knew that the offer was conditional to a pre-employment drug test. He only did so after the offer was revoked, said the tribunal.
The tribunal noted that the worker also did not disclose his disability and cannabis use to the testing company, even though he was told that they would be testing for cannabis.
The tribunal also found that the position was partly an office job and partly a field job involving emergency situations and heavy machinery. This made it a legitimate safety-sensitive position, not an attempt to exclude the worker, the tribunal said.
The law does not take kindly to treating employees in an invasive or discriminatory fashion when it comes to drug testing, says an employment lawyer.
No duty to inquire: tribunal
The worker argued that Inter Pipeline had a duty to inquire as to a potential need for accommodation once he revealed that he used CBD oil for chronic pain, but the tribunal said that the duty to inquire only arises with the possibility of a connection between an employee’s disability and poor job performance or a workplace rule. When the company first learned of the worker’s pain, it had already revoked the offer of employment, the tribunal said.
“The duty to inquire has to arise before the adverse impact - that's how it's written in law, historically,” says Bowles. “In this case, because they didn't know about or have any suspicion of his medical disability until they had already revoked the offer, there was no existing relationship between them that would require them to have a duty to inquire once they became aware, or ought to have been aware, that there was a disability issue.”
The tribunal determined that the worker’s disability was not a factor in the decision to revoke the job offer, missing the third part of the discrimination test. Without any discrimination, there was no free-standing duty to inquire or duty to accommodate the worker, said the tribunal in dismissing the worker’s complaint.
It would have been a different story had the worker disclosed his disability and related cannabis use during the interview or before the job offer was revoked, says Bowles.
“By presenting the issue of a disability, that would immediately trigger the employer’s duty to inquire further about the disability and to clarify whether or not there was a duty to accommodate that disability,” he says. “And then it would become an issue for the employer to evaluate whether they actually had gotten to the point of undue hardship to accommodate this disability - this individual probably would have been willing to just simply stop his cannabis use for a certain amount of time and and things would have been fine.”
An Alberta worker was fired for using cannabis, but an arbitrator reinstated him due to mitigating circumstances.
Pre-employment testing
Bowles says that this case shows that pre-employment drug testing for safety-sensitive positions is still on the table for employers.
“That's still permissible at law, despite some changes in kind of the approach to cannabis in the workplace generally,” he says. “In safety-sensitive positions, you absolutely still can have pre-employment testing, post-incident testing, and reasonable cause testing.”
“It's important that employers make sure that they use licensed drug-testing companies to go through that process rather than something like a simple identification checkbox or some sort of quick test kit,” adds Bowles. “Keeping it official in that process allows them to have 100-per-cent security in the validity of the results - and it keeps the process formal with respect to making sure there's a thorough questionnaire to give the employee that opportunity to identify any disability issues.”
See Greidanus v. Inter Pipeline Limited, 2023 AHRC 31.
