Supreme Court of Canada Rules on Workplace Policies Concerning Alcohol and Drug Consumption

The Supreme Court of Canada's decision in Stewart v Elk Valley Coal Corp., 2017 [hereinafter “Stewart”] sets a new standard for employers, particularly those engaged in safety sensitive operations who have corporate drug and alcohol policies.

One of the most challenging obstacles employers face when dealing with employees with substance abuse issues, is the overlying precept that addiction is a recognized disability and is thereby a protected ground in the human rights world. Generally speaking, the employer’s obligation to accommodate such an individual with such a disability seems to naturally flow from that.

But the issue is further compounded when such an employee is subject to termination. Is it the employer’s obligation to accommodate the employee, or, can the employee be terminated without accommodation and such termination not be found to be discriminatory?

The Supreme Court of Canada’s decision in Stewart, answers the question for employers, simply and definitively. Yes.

An employee with those issues can be terminated without accommodation. The key to their finding? The employer’s own properly implemented alcohol and drug Policy.

Here, the employee worked in a mine operated by his employer, driving a loader. The mine operations were considered dangerous and the employer felt strongly about maintaining a safe worksite for all employees.

As a means to ensuring a level of safety, the employer implemented a Policy wherein employees were expected to disclose any dependence or addiction issues before any drug – related incidents occurred.

Under the Policy, if an employee disclosed such information to the employer prior to any incidents, they would be offered treatment. If an employee failed to disclose such information and subsequently was involved in an incident and tested positive for drugs, he/she would be terminated. The employer’s intent for the Policy was to encourage employees with substance abuse problems to come forward and obtain treatment before their problems compromised safety.

Employees, including the Respondent, attended training sessions where they were instructed about the Policy. Further, each employee signed a form acknowledging receipt and understanding of the Policy.

Here, the employee never disclosed any such information of addiction. Subsequently, his loader was involved in an accident at work. The employee tested positive for drugs and later admitted he thought he might be addicted to cocaine. He was subsequently terminated.

The employee’s matter was heard by the Alberta Human Rights Commission, (the “Tribunal”) wherein he argued he was terminated because of his addiction which constituted discrimination.

That argument was not accepted. While the Tribunal concluded the employee was addicted to drugs and his addiction constituted a disability protected under human rights, it also concluded the employee’s disability was not a factor in the termination, and therefore, no discrimination had occurred.

Ultimately, the Tribunal found the employee was terminated for failing to comply with the Policy. Simply put, the employee was terminated for violation of the company’s Policy by not revealing his addiction before an accident occurred, not, because of his addiction.

It was determined the breach of Policy which led to the employee’s termination was not applied due to his disability, nor did his disability diminish his capacity to comply with the Policy itself. Accordingly, the Policy did not adversely impact the employee by way of discrimination.

The employee then appealed that decision which was upheld at the Alberta Court of Appeal.

That Court of Appeal decision was then appealed to the Supreme Court of Canada which ultimately sustained the findings of the lower courts.

The Supreme Court of Canada found in favour of the employer, and held it was reasonable for the Human Rights Tribunal to conclude the dismissal of this employee was not discriminatory as the decision to terminate was based upon applying the company’s Policy.

The Supreme Court agreed that the reason for the employee’s termination was not addiction but rather the employee’s failure to disclose his addiction as required by the employer’s Policy; in essence, breach of policy.

This case recognizes that the termination of an employee with a substance abuse addiction based on a breach of a properly drafted and implemented policy is not discriminatory. Is it time to update your company’s Policies? If so, please contact Kavanaugh, Milloy today and we would be pleased to assist you.