A new decision by the Alberta Court of Appeal is providing
assistance for employers to deal with the situation where an
employee, who works in a safety sensitive work environment, fails
to disclose his drug use because of his or her belief that the drug
used does not affect work performance.
In the decision of Stewart v. Elk Valley Coal
Corporation, 2015 ABCA 225, a majority of the Alberta Court of
Appeal upheld the dismissal of an appeal from the Human Rights
Tribunal where the employee claimed that he had been discriminated
against on the grounds of his physical disability, specifically his
cocaine addiction or dependency.
The complainant's employment was terminated in 2005
following a collision between the vehicle he was operating on the
worksite. The employer had a policy which allowed employees with a
dependency or addiction to seek assistance before the occurrence of
a "significant event" without fear of discipline.
After the incident in question, the employee admitted to the use
of crack cocaine on his days off, but he had chosen not to advise
his employer as he believed that it did not affect his work
After the incident and his termination, the complainant realized
that he did have a dependency. Drug and alcohol experts testified
at the Human Rights Tribunal hearing.
The Court of Appeal agreed with the Tribunal's analysis that
the test for discrimination has three parts:
the complainant has the disability or
other characteristic protected from discrimination under the
Human Rights Act;
the complainant experienced an
adverse impact as a result of a workplace decision; and
the disability or other protected
characteristic was a factor in the termination or adverse
In this case, as in many, much of the emphasis is on the final
step in the test, whether the disability was a factor in the
termination. The employer argued that the employee was terminated
because of his failure to disclose his drug use or to stop using
The majority of the Court of Appeal agreed with the
employer's position in that the policy did not discriminate on
the basis of a disability, but rather only against those who
breached the policy. Further, the Court found that there was
evidence that the complainant could have complied with the policy
and accordingly, his dependency was not a factor in his breach of
the policy and subsequent termination.
This case provides some further guidance for employers in that
the majority of the Court of Appeal rejected the notion that there
is a higher standard of accommodation when employees are in denial
about their substance abuse problem. This case should encourage
employers to review their drug and alcohol policies to ensure that
the policies properly direct employees to self-report before any
incident, and that employees can access treatment programs to get
the assistance they require and keep the workplace safe.
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