A new decision by the Alberta Court of Appeal is providing assistance for employers to deal with the situation where an employee, who works in a safety sensitive work environment, fails to disclose his drug use because of his or her belief that the drug used does not affect work performance.
In the decision of Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225, a majority of the Alberta Court of Appeal upheld the dismissal of an appeal from the Human Rights Tribunal where the employee claimed that he had been discriminated against on the grounds of his physical disability, specifically his cocaine addiction or dependency.
The complainant’s employment was terminated in 2005 following a collision between the vehicle he was operating on the worksite. The employer had a policy which allowed employees with a dependency or addiction to seek assistance before the occurrence of a “significant event” without fear of discipline.
After the incident in question, the employee admitted to the use of crack cocaine on his days off, but he had chosen not to advise his employer as he believed that it did not affect his work performance.
After the incident and his termination, the complainant realized that he did have a dependency. Drug and alcohol experts testified at the Human Rights Tribunal hearing.
The Court of Appeal agreed with the Tribunal’s analysis that the test for discrimination has three parts:
- the complainant has the disability or other characteristic protected from discrimination under the Human Rights Act;
- the complainant experienced an adverse impact as a result of a workplace decision; and
- the disability or other protected characteristic was a factor in the termination or adverse treatment.
In this case, as in many, much of the emphasis is on the final step in the test, whether the disability was a factor in the termination. The employer argued that the employee was terminated because of his failure to disclose his drug use or to stop using drugs.
The majority of the Court of Appeal agreed with the employer’s position in that the policy did not discriminate on the basis of a disability, but rather only against those who breached the policy. Further, the Court found that there was evidence that the complainant could have complied with the policy and accordingly, his dependency was not a factor in his breach of the policy and subsequent termination.
This case provides some further guidance for employers in that the majority of the Court of Appeal rejected the notion that there is a higher standard of accommodation when employees are in denial about their substance abuse problem. This case should encourage employers to review their drug and alcohol policies to ensure that the policies properly direct employees to self-report before any incident, and that employees can access treatment programs to get the assistance they require and keep the workplace safe.