Employers who operate safety sensitive worksites will find the recent decision of the Alberta Human Rights Tribunal in Everitt v Homewood Health Inc., 2019 AHRC 36 of interest. In this decision, the complainant, Brad Everitt, was a member of a building trade union and worker in the construction industry. The respondent, Homewood Health Inc., administered a rapid site access program (“RSAP”) which is a voluntary program that provides pre-qualification to workers for access to safety sensitive worksites. Everitt was denied participation in the RSAP by Homewood when he failed a pre-enrollment test due to cannabis use. He filed a human rights complaint that he had been denied a service customarily available to the public on the basis of a disability.
Some employers who operate safety sensitive worksites, such as mine sites or oil sands projects, require workers who are dispatched to the site to pass a pre-access drug and alcohol screening test prior to commencing work. Given that the testing and processing of results at the time of dispatch can create significant delays, RSAPs have been developed to provide for an alternative testing program. Under a RSAP, workers who pass an enrolment drug and alcohol test and agree to be subject to random drug and alcohol testing while at work, among other requirements, are given active RSAP status and are not required to take a pre-access screening test at the time of dispatch to a worksite. Participation in RSAP is voluntary; workers who do not qualify for RSAP or who do not wish to participate in RSAP are still eligible for dispatch to jobs on safety sensitive sites but must go through the traditional pre-access testing process. Enrolment in the RSAP does not give a worker any preferential dispatch status.
In Everitt’s situation, he had been a recreational user of cannabis for about 25 years and had used cannabis for medical purposes for more than ten of those years to manage pain related to arthritis. He applied to participate in the RSAP administered by Homewood and failed the pre-enrolment test when his test results measured 1,200 nanograms per millilitre for tetrahydrocannabinol (THC), a psychoactive constituent of cannabis, when the threshold permissible level was 50 nanograms per millilitre. As a result, Homewood did not permit Everitt to participate in the RSAP. He was still eligible to be dispatched to safety sensitive worksites, but would need to go through the standard pre-access testing protocol.
The Tribunal found that while Everitt had a disability, arthritis, he had failed to establish a prima facie case that his disability was a factor in the refusal to enrol him in the RSAP and his complaint was dismissed.
However, the Tribunal went on to consider whether it was reasonable for the respondent to determine Everitt’s eligibility for participation in RSAP without conducting an individual assessment. The Director of the Alberta Human Rights Commission, who was a party to the proceeding, had argued that when Everitt failed the pre-enrolment test, Homewood should have conducted an individual assessment and considered whether accommodation was possible. The Tribunal disagreed and concluded that it was reasonable and justifiable for Homewood not to conduct an individual assessment because of the nature of the RSAP itself and lack of evidence that substantive accommodation was possible.
In the traditional mandatory pre-access testing process, a negative test result would lead to an individual assessment by a medical review officer, which would take into consideration the individual circumstances, the job duties and responsibilities, and the particular working conditions. In contrast, the RSAP is a voluntary, streamlined drug and alcohol testing program not based on a particular job or worksite but one which allows the worker to have active dispatch status so that they can be dispatched by the union to any participating safety sensitive job site without having to go through a pre-access test at the time of dispatch. Given the very nature of the RSAP, Homewood could not have accommodated Everitt without incurring undue hardship. Central to the Tribunal’s finding was that traditional pre-access tests remained available and work on safety sensitive sites was equally available to workers who did or did not participate in the RSAP.
Expert witnesses at the hearing agreed that cannabis is an impairing substance that is extremely difficult to assess, and the impairing effects of cannabis vary depending on a number of factors. Everitt was a regular and heavy user of cannabis and he expected that his common level of THC would be around or over 1,200 nanograms per millilitre each day. The Tribunal was satisfied that Everitt posed an unacceptable risk of impairment if he were dispatched as a RSAP participant worker and Homewood could not have accommodated him without incurring undue hardship. The complaint was dismissed.
This decision provides a helpful discussion on the risks associated with cannabis impairment and the difficulties faced in measuring such impairment. It also sets out a good summary of the individual assessment process to be followed in a traditional pre-access testing process. Further, the decision recognizes that voluntary programs like the RSAP provide valuable alternatives to workers and employers for addressing the risks associated with impairment in safety sensitive workplaces.
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