If you’re familiar with human rights laws, you may know that drug addiction is considered a disability. That’s important because it means that refusing to hire a person because he fails a drug test could make you liable for disability discrimination.
But what happens if the person who fails the drug test is excluded not by his immediate employer (let’s call it Company A) but another company (Company B) that has contracted with Company A to do a job? Does the person have a valid employment discrimination claim against Company B?
That was the question a court in Alberta just had to answer.
Syncrude adopts a policy requiring employees of contractors to pass a drug test before getting access to a Syncrude site. Don, an employee of a contractor that Syncrude hires for a big construction job, tests positive for marijuana and is thus barred from the site. He files a disability discrimination complaint not against the contractor but Syncrude. Alberta human rights laws ban discrimination by “employers.”
Is Syncrude Don’s “employer”?
What the Court Decided
The case ping pongs around before landing in the lap of Alberta’s high court, the Court of Appeal, which rules that Don doesn’t have a valid employment discrimination claim against Syncrude. Syncrude was not Don’s “employer,” the Court explained:
Don Already Had an Employer: As Don acknowledged, he already had an employer—the contractor. Although you can never say never, “it will be rare that the concept of employment” can be extended where it would result in the individual’s having 2 employers, the Court reasoned.
Don’s Relationship with Syncrude Was Too Indirect: The mere delivery and receipt of services isn’t enough to establish employment, said the Court. There must be “proximity.” It doesn’t have to be a written contract. But Don was in no way part of Syncrude’s organization. He reported to, received payment from and was directed by the contractor. Syncrude did control the worksite. But control isn’t enough to establish proximity, the Court concluded [Lockerbie & Hole Industrial Inc. v. Alberta (Human Rights & Citizenship Comm’n, Director),  ABCA 3 (CanLII), Jan. 11, 2011].
What the Case Means to You
The immediate significance of Lockerbie is that it makes it harder for employees of contractors and subcontractors to challenge drug testing imposed by the owner company that controls the work. Merely working for a contractor or subcontractor company that delivers services to the owner isn’t “employment” by the owner for purposes of “employment discrimination.”
The other thing you need to recognize is that “employment” under the human rights laws is an elastic concept that can extend beyond the typical master-servant relationship. Don didn’t have the kind of relationship with Syncrude that an individual needs to establish “employment” (and thus be able to sue for employment discrimination). But another individual in another set of circumstances might.
So, arguably, from an EHS co-ordinator’s perspective, the most important part of Lockerbie is the factors the Court sets out to evaluate whether a company has an “employment” relationship with an individual under human rights laws, including:
- The existence of another employer;
- Who controls and directs the work;
- Who pays the wages and does the payroll;
- Who the individual perceives to be his employer; and
- The extent to which the individual is part of your organization.