When an employee has an addiction, certain human rights obligations are triggered for employers. Navigating these obligations can be a minefield. Fortunately, the Supreme Court of Canada has recently provided some guidance on the issue.
In Stewart v Elk Valley Coal Corp., the Supreme Court found that the employer did not discriminate against its employee on the basis of his drug addiction when it terminated his employment after he tested positive for cocaine subsequent to a workplace accident.
The employer operates a mine in Alberta and implemented an Alcohol, Illegal Drug and Medication Policy (“the Policy”) which was aimed at ensuring safety at the mine site. The Policy expected employees to disclose drug use, addiction and dependence issues before a drug related incident or accident occurred. If an employee disclosed a drug issue, the employer would offer appropriate treatment; however, if an employee failed to disclose a drug issue and was subsequently involved in an accident and tested positive for drugs, he/she would be terminated.
In this case, the employee drove a loader at the mine and did not disclose that he used cocaine on his days off. He was later involved in a workplace accident. No deaths or injuries occurred as a result of the accident, however, the employee did test positive for cocaine upon a drug test. After the test, the employee confided to the employer that he thought he was addicted to cocaine.
Nine days after the accident, the employer terminated the employee due to his breach of the Policy. The employee, through his union representative, argued that he was terminated because of his drug addiction, which constitutes discrimination under the Alberta Human Rights Act.
The Alberta Human Rights Tribunal held that the employee was not terminated because of his addiction per se, rather, he was terminated for breaching the Policy. The employee appealed to the Alberta Court of Queen’s Bench where the court affirmed the Tribunal’s decision. The employee then appealed to the Alberta Court of Appeal where the Tribunal’s decision was affirmed once again. The employee then exhausted his final chance at appeal and appealed the decision to the Supreme Court of Canada.
The majority of the Supreme Court upheld the Tribunal’s decision, but the judgment was split on different issues. The majority (6 judges) found the Tribunal had reasonably concluded that there was no discrimination. The minority (2 judges) found that there was discrimination, but that this discrimination was justified because the employer could not accommodate the employee without incurring undue hardship. The only dissenting judge found that there was discrimination and this discrimination was not justified.
On the issue of discrimination, the Supreme Court upheld the long-standing legal test. To establish that an employee has been discriminated against, the employee must establish: (1) he/she has a characteristic that the legislation protects from discrimination; (2) he/she has experienced adverse impact upon their employment; and (3) the protected characteristic was a factor in the adverse impact. If all three elements are established, the onus then shifts to the employer to show that it accommodated the employee to the point of undue hardship.
The majority found that the employee satisfied the first two elements as he was a drug addict – a disability the legislation protects from discrimination – and his termination is clearly an adverse impact upon his employment. However, the majority held that the employee did not satisfy the third element, as, “the mere existence of addiction does not establish prima facie (accepted as correct until proven otherwise) discrimination” and that “[the employee] would have been fired whether or not he was an addict or a casual user.” Further, medical expert evidence was introduced to demonstrate that the employee’s addiction did not diminish his capacity to comply with the terms of the Policy. The concurring minority held that the third element was satisfied as the employee’s drug addiction was connected to his termination. Although the minority disagreed with the majority about whether the employee was discriminated against, the minority held that not terminating the employee would weaken the policy and the safety goals it attempts to accomplish. This consequence led the minority to hold that the employer met its obligation to accommodate the employee to the point of undue hardship. The lone dissenting judge took a far more sympathetic view on drug addiction. The dissent held that the cocaine dependence was a factor in his termination and that offering the employee an opportunity to re-apply for his position post termination is not a valid accommodation.
Overall, this case is noteworthy for employers seeking to strengthen policies aimed at reducing drug abuse in safety sensitive workplaces. When attempting to deter workplace accidents through such a policy, employers can also safeguard against a possible Human Rights Code violation, by:
(1) Implementing a drug policy that requires employees to self-report drug use and receive treatment before accidents occur;
(2) Clearly communicating the policy to every employee;
(3) Upon termination, clearly indicating that the reason for termination is not because of any addiction issue; rather, because of a drug policy breach.
A copy of the Stewart v. Elk Valley Coal Corp. decision can be found on CanLii: https://www.canlii.org/en/ca/scc/doc/2017/2017scc30/2017scc30.html
The employment and human rights law team at Cheadles LLP is experienced and well-versed in advising employers and employees on workplace accommodation and discrimination matters. If you have questions about your rights or obligations, then don’t hesitate to contact us today.
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