Canadian Employment Law Today

November 3, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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THIS EDITION of You Make the Call features a worker who was banned from an industrial worksite after prescription drugs and mari- juana residue were found on him. The worker was an electrician who worked for multiple industrial employers as dis- patched by his union. In March 2016, the union sent him to work for a company called Jacobs Industrial Services. Jacobs was con- tracted to provide services at a worksite in Sturgeon County, Alta., where North West Redwater Partnership (NWR) was building a refinery. On March 15, Reid went to the refinery site for orientation, which included a search by sniffer dogs. The search revealed that the worker had marijuana residue on some of his personal belongings and he was in posses - sion of Percocet, a form of oxycodone. NWR required the worker to leave the worksite and submit to "for cause drug testing." The worker underwent two drug tests, one on-site and a follow-up test afterwards. Both came back negative and NWR asked the work - er to provide a copy of his Percocet. The work- er did so, explaining that his prescription was for migraine headaches and if he ever needed his medicine while working, he would advise safety personnel to avoid any hazardous cir - cumstances. He also said that he had been drug-free for five years and marijuana residue that was found on his cellphone could have been there for years. A key fob that had addi- tional residue was for a truck that he was using while his own was being fixed, he said, adding that he hadn't consumed alcohol in 27 years. NWR decided to ban the worker from the Sturgeon County worksite indefinitely. The union or Jacobs could appeal the ban after 90 days with proof that the worker participated in the rapid site access program (RSAP) with a commitment from Jacobs or the union that it would work with the employees. The worker filed a human rights complaint alleging that NWR discriminated against him in the area of employment on the grounds of mental and physical disability by banning him from working at the refinery site because he took prescription medicine for a medical condition. NWR responded that its policy treated everyone at the site — more than 6,000 workers employed with numerous con - tractors — equally and it was private property not open to the public for access. NWR also noted that it was still open for the worker to appeal the site access restrictions, it was pre - pared to reconsider its decision if the worker participated in random drug testing — which the worker refused to do — and NWR wasn't the worker's employer, so it couldn't discrimi - nate against him in the area of employment. ©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 YOU MAKE THE CALL Was the worksite ban discriminatory? OR Was NWR free to ban the worker from the worksite as it saw fit? IF YOU SAID NWR was free to ban the worker as it saw fit, you're right. A human rights of- ficer and the director of the Alberta Human Rights Commission agreed that the worker's complaint had no merit because NWR wasn't the worker's employer and the worker was still eligible to work for Jacobs, his actual em - ployer, so he didn't suffer any adverse effects in his employment. In addition, NWR indi- cated that the worker could have appealed the decision, but he declined to do so. The worker appealed to the Alberta Human Rights Tribunal, but the tribunal agreed with the original decision. The tribunal found that Jacobs didn't refuse to employ the worker, so there was no adverse impact at the hands of the worker's employer. As for NWR, it wasn't in an employment relationship with the worker, said the tribunal, adding that the Su - preme Court of Canada had stated that access to private property was not regulated and "the Alberta Human Rights] Act… only prohibits discrimination in certain select relationships, such as 'employment' and 'providing services to the public.'" The tribunal added that although the work - er may have felt that requiring him to par- ticipate in an RSAP in order to appeal NWR's decision wasn't fair, there was no reasonable explanation for him to refuse if he had been drug- and alcohol-free for many years and had two negative drug tests. RSAPs were developed "with the input from site owners, contractors, and unions to provide an efficient means for getting workers on to safety-sensitive sites." "This is not a case where the site owner re - fused access to a person with a disability," said the tribunal in dismissing the appeal. "Access was refused because the [worker] refused to participate in a process designed to ensure safety on the site." For more information, see: • Reid v. North West Redwater Partnership, 2021 AHRC 159 (Alta. Human Rights Trib.). Worker banned from worksite after search yields Percocet, pot residue The worker said he had been drug- and alcohol-free for years. The Rapid Site Access Programs were developed with input from site owners, contractors, and unions.

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