Who would have thought that "casual" pot use would be considered a disability for purposes of human rights legislation? Well, that's what the Alberta Court of Queen's Bench found in the recently released decision of Alberta (Human Rights and Citizenship Commission) v. Kellogg. This was an appeal of this decision by the Human Rights Panel of Alberta.
Here's the background.
The employee took a pre-employment drug test and went to work for the employer. Nine days later, the results of the test came back "positive for the active ingredient in marijuana". He was confronted and acknowledged having smoked pot five days before the test. His evidence was that he was a "recreational occasional cannabis user". The employer had a "zero tolerance" policy and the employee was terminated.
The Panel indicated that the complainant's evidence of being a recreational pot user, suggested that this was a "personal, voluntary choice, and not a disability". It should also be noted that the Panel found that there was no perceived disability and that complainant was employed in a safety sensitive position. The Panel dismissed the complaint as there was no actual or perceived disability present.
The decision was appealed and the judge allowed the appeal. The National Post has an article (Casual pot use a disability: Alberta judge) that pithily gives us the "bottom-line":
"An Alberta judge has ruled that a construction company discriminated against a man when it fired him from an oilsands project after his pre-employment drug screening tested positive for marijuana."
The court indicated that "this was the first time that this court was asked to address pre-employment drug testing under the Act.". The Court says that the pre-employment drug testing policy is prima facie discriminatory in a number of respects.
The Court then goes on to discuss whether the policy discriminates against recreational drug users. The Court after conducting an extensive review of the case law, found that anyone testing positive under the policy is entitled to protection of the Act and relied on the Ontario Court of Appeal case in Entrop. The Court adopts an approach suggesting that anyone who tests positive is perceived to be "disabled" and, thus, is entitled to protection under the Act. The Court follows a "perceived" disability analysis to sweep the recreational drug user into the protection afforded by the Act.
The Court commented that:
".... the effect of the ... Policy on pre-employment drug testing is to exclude addicted individuals on the basis of actual disability and non-addicted and non-impaired employees from employment based on perceived disability. I find that the ... Policy constitutes prima facie discrimination based on disability, both in general and as applied to [the employee]. With respect, the Panel erred on this point."
It's an interesting analysis, which has broad implications in extending the meaning of "perceived" disability.
Criticism of the ruling is found in an article Going to pot in today's The Calgary Sun.
I suspect that this case will be appealed.