Originally published 11 October 2017
Human rights laws prohibit discrimination on the grounds of disability. Addiction is considered to be a disability and, as such, an employee cannot be fired for being addicted to substances such as drugs or alcohol. In fact, employers are required to accommodate employees who suffer from addiction to the point of undue hardship. In most cases, such accommodation takes the form of allowing the employee to take time off to seek treatment. Accommodation may also require the employer to assist the employee (with the guidance of their medical professionals) with their treatment program when the employee returns to work.
What about addicted employees who breach company policy on a safety-sensitive work site? Is the employer justified in firing an employee when the employee tests positive for substances after being involved in a workplace accident? It depends on how the employer has dealt with the issue. The Supreme Court of Canada was asked to consider this question in the case of Stewart v. Elk Valley Coal Corp., 2017 SCC 30 [Stewart]. In that case, which originated in Alberta, Mr. Stewart worked in a mine operating a loader. His employer, the Elk Valley Coal Corporation, implemented a policy that was intended to ensure safety at the mine site. That policy required employees to disclose any dependence or addiction issues before any drug-related incident occurred. If the employee disclosed this information, the employer offered treatment. If they did not and they were involved in an incident and tested positive for drugs, they would be fired. Mr. Stewart signed an acknowledgment of the requirement for him to disclose his drug dependency. All employees, including Mr. Stewart, attended a training session at which the policy was reviewed and explained.
Mr. Stewart failed to tell his employer that he used cocaine on his days off. After being involved in a workplace accident with his loader and testing positive for drugs, he told his employer that he thought he was addicted to cocaine. In reliance on the policy, the employer fired Mr. Stewart nine days later. Mr. Stewart argued, through his union representative, that he was fired for his addiction and that the termination constituted discrimination under Alberta's human rights legislation.
The Alberta Human Rights Tribunal (the "Tribunal") found that Mr. Stewart was terminated for breaching the policy, not because of his addiction. As such, there was no discrimination. This decision was affirmed by the Alberta Court of Queen's Bench as well as the Alberta Court of Appeal. The Supreme Court of Canada also affirmed the decision.
The main issue, as stated by the Supreme Court of Canada, was "whether the employer terminated Mr. Stewart because of his addiction (raising a prima facie case of discrimination), or whether the employer terminated him for breach of the Policy prohibiting drug use unrelated to his addiction because he had the capacity to comply with those terms [of the policy] (not raising a prima facie case of discrimination)" (at para. 5). In considering the issue, the Supreme Court of Canada applied the standard of review of "reasonableness". Since human rights issues such as addiction fall squarely within the expertise of the Tribunal, the tribunal was entitled to a significant degree of deference and its decision should only be disturbed if it was unreasonable.
The Tribunal determined that Mr. Stewart was not fired for his addiction, but for failing to comply with the terms of his employer's policy to disclose his drug dependency. It also concluded that Mr. Stewart was not prejudiced by the policy because he could have complied with it irrespective of his addiction.
The SCC considered the evidence that was before the Tribunal, including the reasons stated by the employer in its termination letter. The employer's letter confirmed Mr. Stewart's positive drug test, explained the policy and the reason for it, and then advised Mr. Stewart that he was terminated. The court found that the Tribunal had sufficient evidence to conclude that Mr. Stewart was not fired because of his addiction, but for his breach of the policy. The court concluded, "The Tribunal could not have been clearer – 'Mr. Stewart's disability was not a factor in his termination'."
Chief Justice McLachlin, writing for the majority of the court, concluded that the Tribunal's decision that there was no prima facie case of discrimination was reasonable. Justices Moldaver and Wagner, while concurring that the appeal should be dismissed, held that the test for prima facie discrimination was met. However, the employer had met its obligation to accommodate to the point of undue hardship. They agreed with the Tribunal that immediate dismissal was necessary to deter other employees from using drugs in a safety sensitive environment and that workplace safety is a relevant factor to consider when determining whether an employer has accommodated to the point of undue hardship (at para. 55). In fact, even though it terminated Mr. Stewart, the employer offered him the ability to reapply for employment after six months if he completed a rehabilitation program at a recognized facility. The employer also offered to pay for half the cost of the program if he agreed to certain conditions. In the circumstances, the minority found that the employer had, in fact, made reasonable accommodations.
Ultimately, the court concluded that the employer did not discriminate against Mr. Stewart on the basis of his addiction.
The takeaway from this case is that both human rights tribunals and courts will look closely at the steps taken by an employer when dismissing an employee for cause in circumstances where discrimination is alleged. In order to justify the dismissal, the employer will have to satisfy the decision maker that the protected ground is not a factor at all in the decision to fire the employee.
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