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Man who uses pot to ease HIV wins hearing after failed drug test

Firm's drug policy tested
Gordon Kent
The Edmonton Journal
Thursday, September 11, 2003

EDMONTON - An HIV-positive construction worker who smokes marijuana to deal with his illness has won a hearing to decide whether his rights were breached by a company that denied him work for failing a drug test.

An Alberta Human Rights Commission officer has already concluded North American Construction Group Inc.'s policy requiring such pre-employment checks violates provincial legislation.

But the Spruce Grove firm went to court to block the appointment of a human rights panel, which could make the first binding decision on whether to allow this type of drug screening in Alberta.

In a judgment released Wednesday, Court of Queen's Bench Justice Alan Cooke ruled the panel can go ahead, saying it's important to resolve when restrictions on taking drugs or alcohol are legitimate job requirements.

"Frankly, I am at a loss to understand why the (company) would not wish to have this issue examined," he wrote.

"This ... is of significant concern both from the point of view of the safety of fellow workers, the catastrophic financial loss of huge machinery and consequent litigation."

The case involves an Onoway man who in January 2001 was offered a job with North American to run a bulldozer at the Syncrude plant in Fort McMurray.

He had to undergo urinalysis for drugs and alcohol, which came up positive for marijuana. As a result, he was refused the chance at employment for six months.

He initially denied using the drug, insisting there'd been a mistake, then admitted occasionally smoking non-prescription pot for 41/2 years to deal with the nausea he feels from taking HIV medication. HIV is the precursor to AIDS.

Human rights officer Linda Sasaki's June 2002 report found pre-employment drug testing is not justified and doesn't prove someone is incapable of working safely.

She also concluded it was discriminatory to treat the man like a drug addict without showing flexibility for his circumstances.

While Sasaki recommended North American stop its "discriminatory" pre-employment drug tests, she found the complainant's lack of candour made him ineligible for any award.

North American, refused to change its testing policy and argued a human rights panel can't be appointed if the complainant isn't entitled to such a remedy.

But Cooke concluded the panel's findings will affect the man and other workers faced with pre-employment drug screening.

No date has been set for the panel to start its inquiry.