In a recent decision of the Alberta Court of Appeal, Stewart
v. Elk Valley Coal Corp., 2015 ABCA 225, it was held that the
termination of an employee who tested positive for cocaine in a
post-incident drug test was not discriminatory.
The employee worked in a safety-sensitive position. He was
involved in a serious workplace accident and was required to
undergo a post-incident alcohol and drug test, pursuant to the
employer's Alcohol and Drug Policy. The employee tested
positive for cocaine and was terminated as a result. Following his
termination, the employee claimed he suffered from a drug
addiction. The employee filed a human rights complaint alleging
that the termination was discriminatory on the basis of physical
disability, namely, his drug addiction.
The employer's Alcohol and Drug Policy applied to those
employed in safety-sensitive positions. It provided that employees
who voluntarily disclosed their drug addiction and/or dependency
prior to a "significant event" occurring would receive
assistance in achieving rehabilitation without fear of discipline,
including termination. Employees who did not disclose their
addiction(s) and/or dependency prior to a significant event
occurring were not provided with the same protection from
The employee did not disclose his alleged drug dependency to the
employer prior to the workplace accident, despite having attended a
training session on the policy and having signed a form indicating
he understood the policy.
The Alberta Human Rights Tribunal explained that, although the
employee did in fact have a disability, he was not terminated as a
result of that disability. Rather, his termination was the result
of his breach of the Alcohol and Drug Policy; namely, his failure
to stop using drugs and his failure to disclose his alleged drug
addiction to his employer prior to the incident.
The Tribunal went further and explained that, in the event
discrimination had occurred, the employer had satisfied its duty to
provide accommodation to the point of undue hardship. The Tribunal
found that the Policy was a bona fide occupational
requirement for safety-sensitive positions. The employer sought to
accommodate by including an invitation for employees to disclose
their drug addiction or dependency with no threat of discipline. If
this did not satisfy the employer's duty to accommodate, it
would allow for a situation where employees could claim an
addiction post-discipline and use this as a protection against
disciplinary actions and thus disregard the safety obligations of
their employment to disclose their addiction or dependency in
accordance with the policy. This would be contrary to both the
employer's efforts to create and maintain a safe workplace and
the objectives of human rights legislation.
The decision of the Tribunal was upheld by the Alberta Court of
What This Means for Employers:
Employers can manage the safety risks posed by drug and alcohol
in the workplace by implementing policies that apply to employees
in safety-sensitive positions.
The policy may allow employees to disclose to the employer
their drug and/or alcohol dependency, in advance of a serious
workplace incident, to obtain protection from disciplinary
Employers may discipline employees who fail to comply with the
policy so long as it provides accommodation to those employees who
disclose their disability in accordance with the policy.
Employees who fail to disclose their disability, in advance of
a serious workplace incident, will not be protected from
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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.
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