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Pass the Hash Pipe - The Rights of "Disabled" Workers
At the turn of the century, the term "discriminating" was quite a compliment, applied to those considered to have good taste and discretion. These days, of course, the word has quite a different meaning - especially in the context of employment law.
Our law now tells us that we must not discriminate in employment (except in a very limited range of instances). We have a Human Rights Commissioner, an Equal Opportunities Trust, and a readily accessible dispute resolution system maintained by the Employment Relations Service - each of which provides a person claiming to have been "discriminated" against a vehicle for taking a complaint.
In the context of discrimination in employment, the rights of the disabled have gained particular attention over the last 20 or 30 years. Nowadays, most employers acknowledge that they may not discriminate against disabled people in making decisions about employment (particularly including hiring).
But what does it mean to be "disabled"? We might think that, as a matter of commonsense, we could define the term - and we would be able to identify a "disabled" person if required. However, a decision of the Ontario Court of Appeal may give some food for thought.
The case of Entrop v Imperial Oil Ltd (2000) 189 D.L.R. (4th) 14 involved a dispute between a petroleum company and one of its employees. Entrop had worked for Imperial Oil since the mid 1970s and since 1987 had been employed as a Senior Control Board Operator - which was classified by the company as a "safety sensitive position" (where impaired performance might result in a catastrophic incident affecting the health and safety of employees, customers and the environment).
Sensitised by a number of environmental disasters in the 1980s (particularly including the Exxon Valdez oil spill in Alaska) Imperial Oil introduced a comprehensive alcohol and drug policy for employees in its refineries. The stated object of this policy was "to minimise the risk of impaired performance due to substance abuse". The policy was announced in October 1991, and implemented in 1992.
The policy introduced a number of "key work rules" for employees such as Entrop who were in safety sensitive positions. Amongst other things, these rules prescribed the following things: no employee was allowed to have a blood alcohol concentration exceeding .04% while at work; the employer was entitled to effect random drug and alcohol testing in the workplace; on a positive test, the employer was entitled to dismiss an employee; employees were required to disclose any current or past substance abuse problems; on disclosure of a past substance abuse problem, the employer was entitled to redeploy the employee to a non safety sensitive position (and the employee was only entitled to go back to the former job having completed a two year rehabilitation programme).
Entrop was a recovered alcoholic. Under Imperial Oil's policy, he revealed that he had a previous alcohol abuse problem - but also that he had not had a drink since 1984.
The employer did not dispute this information. His workplace alcohol tests were all negative - supporting his story.
Imperial Oil did, however, rely upon the terms of its policy to redeploy Entrop to a different job.
Entrop took issue with his employer's decision. He argued that his previous alcohol dependency constituted a "disability" in terms of Ontario's human rights legislation - and, consequently, that he had been discriminated against because of his disability.
Entrop succeeded at first instance - but then the case proceeded through two levels of appeal. Finally, it reached the Ontario Court of Appeal in 1999 (almost seven years later).
Although the case involved a number of complicated questions, the fundamental issue was simple. It was accepted that Mr Entrop suffered a disability because of his previous alcohol abuse problem. It was also accepted that, on its face, the employer had acted to disadvantage him because of this disability (by refusing to allow him to perform his role). The relevant legislation did, however, allow discrimination on this basis where the employer could show:
- that it had discriminated against the disability for the purpose rationally connected to the job;
- that the discrimination had occurred because of an honest belief that it was necessary for a legitimate work related purpose; and
- that the standard was reasonably necessary to allow the achievement of the legitimate purpose (in other words, had the employer taken account of individual circumstances or had it applied a blanket rule?).
The Court found that the employer was able to make out the first two parts of this three stage test - it held that, because of the nature of the industry, Imperial Oil was entitled to discriminate against those people who had particular disabilities which might bring in to question their ability to perform their jobs safely. On the other hand, however, the Court found that the third stage of the test had not been met - because Imperial Oil had unreasonably decided to redeploy Mr Entrop without taking into account the fact that he had been rehabilitated for seven years (which had been confirmed by workplace testing).
The question of workplace drug and alcohol testing presents live issues for New Zealand employers. Late next month, a case will become before the full Employment Court - and will consider similar issues.
Watch this space ?
