Once again, the issue of drug and alcohol testing and policies
will be subject to appeal; but this time before the Supreme Court
of Canada, as it recently granted leave to appeal in Stewart v.
Elk Valley Coal Corporation et al. This case (2015 ABCA 225), released in the summer of
2015, gave employers some much needed comfort regarding their
ability to discipline or terminate employees in safety sensitive
positions involved in a work place incident while under the
influence of drugs or alcohol. The case also caused employers to
review their drug and alcohol polices to ensure they contained
provisions allowing employees to self-report and seek
rehabilitative help for their addictions prior to a work place
accident, without fear of discipline. That aspect of the policy was
a key consideration in that decision.
This case involved an employee who was terminated after testing
positive for cocaine following a workplace incident where a loader
truck he was operating struck another truck. The employer had a
drug and alcohol policy in place which gave employees with a
dependency or addiction the ability to seek rehabilitation without
fear of discipline, as long as the employee did so prior to a
workplace incident. In this instance, the employee had not
disclosed that he had a disability prior to the workplace incident.
The employer terminated the employee and the Union filed a
complaint with the Alberta Human Rights Commission on his behalf,
alleging discrimination on the grounds that he was disabled due to
his drug addiction.
The Tribunal held that there was no connection between the
employee's disability and his termination. The employee was not
fired because of his disability, but because he had used drugs, was
impaired at work, and had not disclosed his drug use in advance.
The Tribunal also held that the employer had accommodated to the
point of undue hardship by giving employees the opportunity to
self-report and undergo rehabilitation. On appeal, the Court of
Appeal affirmed the Tribunal's decision and agreed that the
employee's disability was not a factor in his termination.
This decision was welcomed, particularly by those in the
construction industry where drug and alcohol issues are of key
importance. It will be interesting to see what happens when the
Supreme Court of Canada hears this appeal.
Dentons is the world's first polycentric global law firm. A
top 20 firm on the Acritas 2015 Global Elite Brand Index, the Firm
is committed to challenging the status quo in delivering consistent
and uncompromising quality and value in new and inventive ways.
Driven to provide clients a competitive edge, and connected to the
communities where its clients want to do business, Dentons knows
that understanding local cultures is crucial to successfully
completing a deal, resolving a dispute or solving a business
challenge. Now the world's largest law firm, Dentons'
global team builds agile, tailored solutions to meet the local,
national and global needs of private and public clients of any size
in more than 125 locations serving 50-plus countries.
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. Specific Questions relating to
this article should be addressed directly to the author.
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.
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).