On June 6, 2017, the Supreme Court of Canada upheld the termination of a cocaine-addicted employee, finding that he was terminated for breaching the employer's drug and alcohol policy and not because of his addiction. The Court agreed that the opportunity to self-disclose drug use and access treatment without fear of discipline was a reasonable accommodation in the circumstances of this case. The decision represents a cautious step in the right direction for employers trying to maintain safety standards in dangerous workplaces.
The Facts
Mr. Stewart worked driving a loader in a mine operated by the Elk Valley Coal Corporation. The mine operations were dangerous and Mr. Stewart's position was highly safety-sensitive.
To address its heightened safety concerns in a dangerous workplace, the employer implemented a comprehensive drug and alcohol policy (the "Policy") that required employees to disclose any dependence or addiction issues before a drug-related incident occurred. Employees who voluntarily disclosed would be offered treatment. Those who did not disclose and tested positive for drugs after an incident would be terminated. All employees attended a training session to review the Policy and signed off indicating that they understood the Policy.
Mr. Stewart used cocaine on his days off and did not report his drug use to the employer. He was involved in an accident in the workplace and, pursuant to the Policy, was required to undergo a drug test. He tested positive for cocaine. In the meeting following the positive test, Mr. Stewart said he thought he might be addicted to cocaine. Nine days later, his employment was terminated for breach of the Policy.
The Tribunal's Original Decision
In its initial decision, the Alberta Human Rights Tribunal found that Mr. Stewart had failed to establish a prima facie case of discrimination. While he was able to establish that he had a disability, and that his termination would be considered "adverse treatment" by his employer, Mr. Stewart failed to establish that his disability was a factor in the adverse treatment. The Tribunal found that Mr. Stewart was terminated for a breach of the Policy and not because of his addiction.
The Tribunal went on to conclude that even if it was wrong in its conclusion, the Employer did not discriminate because it could not accommodate Mr. Stewart short of undue hardship. The Tribunal indicated that the opportunity to self-disclose and access treatment without fear of discipline was a reasonable accommodation. Further, to dilute the penalty of discharge in this instance would dilute the deterrence effect and the remedial goals of the Policy, thereby compromising workplace safety; in the context of a dangerous workplace, that alone would amount to undue hardship.
The case wound its way through the Alberta Court of Queen's Bench and Court of Appeal, and Mr. Stewart eventually appealed to the Supreme Court of Canada.
The Supreme Court of Canada's Majority Decision
Writing for the majority of the Court, Chief Justice McLachlin dismissed Mr. Stewart's appeal, finding that the Tribunal's decision that the employee's addiction was not a factor in the termination of his employment was reasonable. The Court affirmed the original Tribunal finding that the Policy did not adversely impact the employee because he had the capacity to comply with its terms.
The majority of the Court focused on the letter of termination which stated that the reason for the employee's termination was his violation of the Policy: he used drugs and failed to disclose his use prior to the accident. While the Tribunal accepted that people with addictions may experience denial and that the failure to follow the Policy may be a symptom of the addiction, the expert evidence established that Mr. Stewart had the capacity to disclose his drug use and he made rational choices to use drugs. The Court found this conclusion reasonable and determined that the evidence showed that Mr. Stewart's addiction did not diminish his ability to comply with the Policy. At paragraph 39, the majority of the Court made the following observation:
...It cannot be assumed that Mr. Stewart's addiction diminished his ability to comply with the terms of the Policy. In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis. The connection between an addiction and adverse treatment cannot be assumed and must be based on evidence.
The Dissenting Judgments
The fact that the Court in Elk Valley was divided, with two separate dissenting judgments in the same decision, demonstrates the complexity of human rights cases involving addictions. The dissent argued that a detailed review of the evidence showed that the real cause of the employee's termination was his addiction and thus the test for prima facie discrimination was met and the Tribunal's conclusion to the contrary was unreasonable. The minority found that the employee's addiction was "characterized by impaired control over the use of a psychoactive substance and/or behaviour". While Mr. Stewart was not wholly incapacitated by his addiction and maintained some residual control, the minority stated that they failed to see how one could agree that an employee has limited ability to make choices yet not find a connection between the failure to disclose the addiction and his termination. The minority found that the fact that Mr. Stewart exercised some control over his drug use did not eliminate it as a factor in his termination.
On the issue of undue hardship, two members of the minority of the Court agreed that the Tribunal's conclusion that there was no discrimination because the Employer could not accommodate short of undue hardship and achieve its goal of deterrence was reasonable. One member of the minority of the Court found the opposite.
Implications for Employers
This case represents a significant step forward in giving employers in safety-sensitive and dangerous workplaces the tools to create and maintain a safe workplace. The majority of the Court said that, based on the evidence in this case, Mr. Stewart's addiction did not preclude his ability to make choices about his drug use or prevent him from self-disclosing his drug use. Of note, the majority acknowledged that other cases may be decided differently based upon the evidence adduced at the initial hearing. Accordingly, independent medical exams are of significant importance. Also important is a thorough and effective cross-examination of the employee to canvass evidence of volition and the day-to-day decision-making ability of the employee.
A second takeaway is the importance of carefully drafting the letter of termination. In this case, the majority of the Court referred to the termination letter in concluding that it was not the addiction per se that was the trigger for the termination, but rather the breach of a Policy that the employee had the ability and capacity to comply with.
The third takeaway for employers in dangerous and safety-sensitive industries is to have a well-vetted and appropriate drug and alcohol policy that treats drug addiction, as opposed to drug use, as a disability and reasonably supports and accommodates those suffering from an addiction. An effective policy will balance accommodation for employees with a disability with deterrence for those who do not self-disclose and put their safety and the safety of others at risk.
This case also represents a reconciliation between workplace safety and privacy rights in dangerous workplaces. Where there is the opportunity to voluntarily disclose an addiction and receive treatment, employees who hide an addiction and are involved in a workplace accident and test positive for alcohol or drugs can be held accountable for putting themselves and their co-workers at risk. For employers who are working hard to create a safe workplace, this is a step in the right direction.
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