On June 15, 2017, the Supreme Court of Canada released its decision in Stewart v. Elk Valley Coal Corp. and upheld the Alberta Court of Appeal's ruling that an employer can terminate an employee for breaching a drug and alcohol policy even if the employee has a drug addiction.
In Elk Valley Coal, an employee filed a human rights complaint against his employer after he was terminated for testing positive for drug use. The employee was tested in response to a workplace safety incident, after which he disclosed to his employer that he had a drug addiction. The employee complained that his drug addiction was the basis for his termination and therefore the employer had discriminated against him.
In a majority decision, the Court stated that the main issue to be decided was whether the employee was terminated because of his addiction (raising a prima facie case of discrimination), or whether the employee was terminated for breaching the employer's drug and alcohol policy (not raising a prima facie case of discrimination). The employer's policy, referred to as the "no free accident" rule, explicitly prohibited drug use in the workplace, but guaranteed that if employees disclosed a drug addiction before an incident and a positive drug test they would be offered treatment and would not be disciplined. Conversely, if employees disclosed a drug addiction after an incident and a positive drug test, they could still be disciplined for breaching the policy. The Court accepted that since the employer's policy distinguished between disclosing drug use before and after testing positive, the employee had the capacity to comply with the policy despite his addiction. The employer terminated the employee for breaching a policy that he could have complied with, not for having a drug addiction. Such circumstances did not raise a prima facie case of discrimination against the employee, and the employee's appeal was dismissed.
The Court's ruling in Elk Valley Coal confirms that employers with properly designed drug and alcohol policies have the ability to terminate employees who violate those policies, even where drug addiction is involved. Of course, each case will need to be assessed on its specific circumstances before proceeding with termination of an employee with an addiction. The case reinforces the notion that employers must be mindful of addiction issues when designing their drug and alcohol policies.
Field Law's Labour and Employment Group is equipped to assist employers in crafting drug and alcohol policies that support their ability to discipline, and even terminate, employees who fail to comply with the policy.
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