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Supreme Court Upholds Employee Termination and Substance Abuse Disclosure Policy

Employee drug use and on the job intoxication is one of the most difficult issues for employers to tackle, fraught with liability landmines.  An employee found to be intoxicated while on duty (whether through drugs or alcohol) can, on most occasions, be rightly terminated for cause. However, an employee with a proven addiction to alcohol or drugs is likely to be viewed as having a disability pursuant to provincial human rights legislation and therefore protected from discrimination on that ground. Addiction as a disability does not provide an employee carte blanche but may result in a termination being rescinded and replaced with an opportunity to seek medical assistance and accommodation in the workplace. This leaves employers in a difficult position as they are often unaware of the employee’s addiction prior to termination and there is no implied right to perform drug testing outside of safety sensitive industries/positions. The Courts have waded into the issues of managing addiction-related disability in safety sensitive positions before and recently confirmed a new strategy for employers.

In the case of Stewart v. Elk Calley Coal Corp, 2017 SCC 30, an employee (“Mr. Stewart”) drove a loader in a mine operated by the Elk Valley Coal Corporation (“Elk Valley”). It goes without saying that mining operations are inherently dangerous and safety is given paramount importance.  That safety can be compromised by drug use and intoxication while on duty.  To address this, Elk Valley introduced an Alcohol, Illegal Drugs & Medication Policy (the “Policy”) that required employees to disclose substance abuse issues in advance of a health or safety incident occurring. The Policy noted that disclosure of an addiction would result in an offer of treatment but an employee would be terminated if, following a workplace incident, they tested positive for drugs. Mr. Stewart was involved in a workplace accident while operating the loader and subsequently tested positive for cocaine. During a follow-up meeting Mr. Stewart disclosed an addiction to cocaine and was terminated for breach of the Policy and its’ “no free accident rule”.

Following termination Mr. Stewart filed a complaint pursuant to the Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, now referred to as the Alberta Human Rights Act. At the Alberta Human Rights Tribunal (the “Tribunal”), and each subsequent level of review, the termination of Mr. Stewart was upheld. The basis of the Tribunal decision was two-fold:

1. 1.Mr. Stewart was found to be addicted to drugs but there was no prima facie case of discrimination because his disability was not a factor in the decision to terminate. The termination was related to a breach of the Policy which required disclosure of drug use prior to the incident.
2. If prima facie discrimination was established, Elk Valley discharged its onus to accommodate to the point of undue hardship. The Policy was adopted in good faith and for the job related purpose of ensuring safety in the workplace.

Further to the second point above, the Tribunal found commuting the termination to some lower form of discipline or treatment would result in undue hardship. Continuing to employ Mr. Stewart would diminish the deterrent effect of the policy and safety in the workplace.

Appealing the decision of an administrative board or tribunal is referred to as a judicial review. Judicial review is different than an appeal of a civil or criminal court matter as it requires reflection on (and usually deference to) the previous decision. The court’s role in Judicial Review is to determine the standard by which they will assess the prior decision (either correctness or reasonableness) and then uphold or reject the prior decision based on the standard chosen. In this case the Supreme Court of Canada determined reasonableness was the standard to be applied. This standard requires the reviewing court to determine whether the prior decision was within range of possible, acceptable outcomes which are defensible in respect of the evidence and the law.

The Supreme Court upheld the Tribunal’s decision and found it critical that the termination letter did not cite his addiction as a factor in the termination and that the Policy was crafted in such a way that both a casual user and addict would be terminated. Expert evidence provided at the Tribunal level also demonstrated that Mr. Stewart’s addiction did not prevent compliance with the Policy.

This is a positive decision for employers and can serve as an excellent tool in safety sensitive industries. If you need assistance with managing drug or alcohol issues in your workplace, please contact the following team members at CCPartners.