The Alberta Court of Appeal recently confirmed1 that employers can control the safety risks related to drug and alcohol use in the workplace by disciplining employees who fail to report their drug dependency, regardless of whether they are aware of their dependency.
Ian Stewart was employed by Elk Valley Coal Corp. as a loader truck operator. He was involved in a serious workplace vehicle collision and terminated after testing positive for cocaine in a post-incident drug test. Stewart admitted to using cocaine on his days off work, but insisted he did not have a drug addiction until after he was terminated. Stewart's union filed a human rights complaint on his behalf alleging the termination was discriminatory on the grounds of physical disability – i.e., Stewart's cocaine addiction or dependency.
Both parties agreed that Elk Valley's coal mine is a safety-sensitive workplace and Stewart's job was safety sensitive. Elk Valley had a drug and alcohol policy where employees who voluntarily disclosed their drug dependency or addiction prior to a "significant event" occurring (including a work-related incident) would receive assistance in attending rehabilitation without fear of discipline, including termination; however, employees who did not disclose their addictions prior to a significant event occurring were not provided with the same protection from discipline (Policy).
Stewart did not raise his drug usage prior to the accident, even though he had attended a Policy training session and signed a form indicating he understood it.
Lower court decisions
The Alberta Human Rights Tribunal (Tribunal) dismissed Stewart's complaint.2 It found that although Stewart had a disability, he was not terminated because of the disability, but rather his breach of the Policy, namely his failure to stop using drugs and failure to disclose his drug addiction prior to the incident in accordance with the Policy.
Stewart's termination through the application of the Policy spoke to the consequences of workplace drug impairment and non-disclosure of drug use. The Policy applied to both casual users of drugs as well as those who were addicted. As such, the adverse effect of Elk Valley's treatment of Stewart was not linked to his disability, and the termination did not amount to prima facie discrimination.
The Tribunal further found that in the event discrimination had occurred, Elk Valley had accommodated to the point of undue hardship. In reaching this finding, the Tribunal took into account the fact that the Policy constituted a bona fide occupational requirement due to the safety-sensitive environment of the workplace, and the invitation in the Policy for employees to disclose their drug addiction or dependency with no threat of discipline should be considered part of the accommodation.
On appeal, the Alberta Court of Queen's Bench upheld the Tribunal's finding that no discrimination had occurred.3 The court agreed there was no causal link between Stewart's termination and his disability. The expert evidence supported that Stewart could regulate his drug use or seek assistance in accordance with the Policy, and as such the Policy's adverse effect on him was based on his failure to do so and not on his addiction. In other words, he was not terminated due to his disability, but his violation of the Policy.
On the issue of accommodation, the court disagreed with the Tribunal that the Policy would have constituted reasonable accommodation had prima facie discrimination been established. The court found that the protections against discipline through self-reporting of drug addictions under the Policy do not apply to drug users who do not appreciate that they are addicts.
Stewart's denial about being an addict caused him to think he had nothing to report under the Policy prior to the workplace incident. Therefore, the Policy cannot be considered adequate accommodation in Stewart's case. The court concluded that the Tribunal had reached an unreasonable conclusion in finding that the duty of accommodation would have been fulfilled.
The Alberta Court of Appeal decision
On appeal, the Alberta Court of Appeal (Appeal Court) upheld the court and Tribunal's finding that there is no causal link between Stewart's termination and his disability, as he was terminated not for drug dependency, but for failing to comply with the Policy. The Appeal Court found the Policy did not distinguish between people with drug dependencies and those without, as both groups could be caught by the Policy if they breached it. Specifically, the Appeal Court stated:
...an employee with an addiction disability may be caught by the Policy, but so could people without any disability. The fact of disability or not is, at that stage, irrelevant as long as the material facts for the breach of the Policy are present. Further, since the disability would have been addressed without discipline risk had the employee come forward under the Policy prior to an incident or failed drug test; one can logically eliminate the fact of disability from the factors leading to the adverse impact. Disability revealed voluntarily would not have led to adverse impact.
Concerning accommodation, the Appeal Court reversed the court's finding that the Policy did not constitute accommodation to the point of undue hardship. The Appeal Court rejected the argument that the Policy's protections are insufficient accommodation as they do not apply to employees who do not realize they are addicts.
The Appeal Court noted that this position is a purely subjective approach to accommodation in relation to addictions, which would allow for a situation where employees can claim denial of their addictions as a protection against disciplinary actions and thus secretively disregard the safety obligations of their employment. This would be contrary to both an employer's effort to create and maintain a safe workplace and human rights legislation objectives.
Employers with safety-sensitive workplaces may manage the safety risks posed by drug and alcohol in the workplace by implementing policies that require employees to disclose their drug and alcohol dependency. In light of the Appeal Court's decision, if an employer's drug and alcohol policy accommodates employees who comply with the policy and disciplines employees who do not, the employer may, without significant risk of violating human rights legislation, impose disciplinary actions (up to and including termination) upon employees who fail to disclose their addictions in accordance with the policy, regardless of whether an employee acknowledges his or her addiction.
The author wishes to thank Ruoxi Wang, articling student, for her help in preparing this legal update.
1. Stewart v Elk Valley Coal Corp., 2015 ABCA 225.
2. 2012 AHRC 7.
3. 2013 ABQB 756.
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