Employee addiction is a challenging topic for HR professionals.
Under Canadian human rights legislation, drug addiction or
dependency is considered a disability that triggers the duty to
accommodate to the point of undue hardship. However, an employee
struggling with substance abuse may be in denial that they have a
problem, and may not request accommodation as a result.
A recent case from the Alberta Court of Appeal sheds light on
how Canadian courts will treat post-termination evidence of drug
dependency where an employee, in denial about his dependency, in a
safety sensitive position is terminated for a workplace
In Stewart v.
Elk Valley Coal Corporation, an employee was terminated after
he tested positive for cocaine in a post-accident drug test. He
caused a workplace accident when the vehicle he was operating
collided with another vehicle on a worksite. He worked in a safety
sensitive position and admitted to using cocaine during his days
off. At the time of the accident, he did not believe he had a
problem or that his cocaine use would have an impact on his work
performance. However, after his employment was terminated, he
admitted to having an addiction.
The incident occurred a few months after the employee had
attended a training session with respect to the company's
Alcohol and Drug Policy. The policy provided that employees with
dependency or addiction could, prior to a significant event like a
workplace accident, seek assistance without fear of discipline.
However, the policy went on to provide that discipline, including
termination, may be imposed when a dependency is only disclosed
after a significant event has occurred.
The Alberta Human Rights Tribunal held that the employee was not
terminated due to his addiction or dependency, but because he
breached the policy. Accordingly, there was no discrimination
because the disability itself was not the reason for termination.
Although the evidence established that the employee was to some
degree in denial, he had the capacity to make choices as to when to
use drugs. The discipline related to his failure to follow the
policy and was not discriminatory.
The Tribunal reasoned that even if there had been
discrimination, the policy was a bone fide occupational requirement
given the safety sensitive nature of the workplace. The Tribunal
also took into account that the policy provided treatment options
to those who came forward prior to an incident, and that the
employer would consider reinstating employees terminated pursuant
to the policy, subject to conditions including successful
completion of a rehabilitation program.
The Alberta Court of Queen's Bench agreed with the Tribunal
that there was no discrimination. However, the court disagreed with
the Tribunal in finding that, if there had been discrimination, the
policy was a reasonable accommodation since it did not provide
protection to employees who were not aware that they had an
addiction problem that required accommodation. It reasoned that
although the employee was capable of making choices about when to
use drugs, he was not capable of seeking pre-incident treatment as
he did not know he had a dependency problem.
The Alberta Court of Appeal upheld the Tribunal's original
decision. With respect to discrimination, it agreed that the policy
did not distinguish between people with a disability and those
without one, but instead distinguished between those who violated
the policy and those who did not.
On the accommodation issue, the Court of Appeal rejected the
lower court decision pertaining to the issue of denial, finding
that denial should not be used as a basis for excusing an employee
from bringing the accommodation need to the attention of the
employer. This would essentially provide employees with drug
addictions a more favourable status as compared to employees with
other forms of disability. The Court stated that denial could then
be used as a "vaccine" against discipline by employees
who only admit to a dependency problem post-incident.
The fact that the employer had an alcohol and drug policy that
provided for accommodation was key to the positive outcome of this
case for the employer. This demonstrates the importance of such
policies in safety sensitive workplaces. From a legal perspective,
the finding that there was no discrimination because the employee
was terminated for violating the policy, and not because of an
addiction, is open to question. Other cases have found
discrimination where the addiction was merely a causal factor in
the termination. It will be interesting to see what treatment this
case receives from other tribunals and courts.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This past year has been marked with significant changes to employment legislation, and watershed decisions that will affect employers for years to come. We've designed this year's conference to deliver a practical and digestible review of what you need to know to manage your employees effectively.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).