The appellant’s approach amounts to a suggestion that even an employee in a highly safety sensitive position who knows precisely what he is doing can unilaterally and in a secretive manner disregard the profound safety obligations of his employment not only to the employer but to his co-workers. The absolution for doing so is said to arise from error or misconception on the part of that employee – namely denial. In our view, legitimizing such a subjective manner of defining one’s safety-related employment duties in hazardous work environments loses touch with the test in Meiorin, and with the objectives of anti-discrimination laws. (Emphasis added)

The Alberta Court of Appeal recently released a decision on addiction.  The decision, Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII) is a must read for those dealing with addiction in the workplace.

What happened?

In this case, the employee, Ian Stewart (“Stewart”), complained that he had been discriminated against by Elk Valley Coal Corporation (“Elk Valley”) when Elk Valley “refuse[d] to continue to employ” him following a collision between a vehicle he was operating and another vehicle on the worksite. Stewart’s ability to operate the vehicle was affected by his use of cocaine.

A Human Rights Tribunal found that the manner in which Elk Valley dealt with Stewart did not constitute discrimination.  On judicial review the chambers judge agreed. However, the chambers judge found that the tribunal erred on the issue of whether there had been prima facie discrimination.

In terminating the employee, Elk Valley relied upon a bona fide occupational requirement. It was on this issue that the discussion on enabling and denial arose. Elk Valley’s policy stated that employees “with a dependency or addition” could seek assistance for this problem, without fear of discipline, including termination, provided that this was done before a “Significant Event” occurred:

The Company will assist its employees with problems of abuse, dependency, or addiction associated with Alcohol, Illegal Drugs and Medications, with an aim to preventing these problems. The Company, through its Employee Assistance Program, will provide access to treatment resources to its employees and will encourage employee participation in effective prevention and rehabilitation programs where appropriate.

No employee with a dependency or addiction will be disciplined or involuntarily terminated because of the employee’s involvement in a rehabilitation effort or for voluntarily requesting rehabilitative help in overcoming the problem. Involvement in a rehabilitative effort or seeking rehabilitative help for an abuse, dependency or addiction problem after a Significant Event has occurred, or after a demand is made for the employee to undergo testing for reasonable cause under this Policy, will not prevent an employee from being disciplined or terminated. An employee’s use of the Employee Assistance Program or other rehabilitation efforts does not eliminate the requirement of meeting satisfactory performance levels or compliance with this Policy.

After an education session on May 2, 2005, Stewart signed a form saying that he understood the Policy. However, at the Tribunal hearing, he admitted that he chose not to inform Elk Valley that he used cocaine because “he did not think that he had a problem with drug use” prior to the accident.

The Tribunal and the chambers judge agreed that Stewart was not terminated after the incident because of his addiction or dependency, but was terminated for violation of the policy. As a result, there was no discrimination. The difference between the two levels of decision makers related to “reasonable accommodation”.  This is where the discussion of enabling occurred. At page 14 of the Court of Appeal decision, the Tribunal was quoted as saying the following:

…However, again, in my view offering an assessment without termination to Mr. Stewart as a consequence, given that Mr. Stewart was able to make conscious choices regarding his drug use, would dilute the purpose of the Policy. I am also mindful of Dr. Beckson’s evidence that failing to hold Mr. Stewart accountable through significant negative consequences typically only enables drug use, and would not provide Mr. Stewart with sufficient motivation to change his behavior. With all due respect to the opinion of Dr. Els, while rehabilitation may be a disincentive to a drug dependent employee, in my view, termination of employment acts as a much greater deterrent to an employee like Mr. Stewart, who is capable of making choices about his behavior. Similarly, a suspension as a disciplinary measure, as opposed to the harsher consequence of termination, is not of sufficient consequence to strengthen the deterrent effect of the Policy, decrease drug use and addiction affecting the workplace, and ultimately increase safety.

Additionally, allowing the employee who comes forward the opportunity to access treatment resources without fear of discipline, should be considered as part of the accommodation provided to Mr. Stewart and other employees with addiction disabilities. Offering the opportunity of reinstatement in 6 months under certain reasonable conditions, also contributes to accommodation responsibilities. The Respondent agreeing to pay 50% of the rehabilitation program facility cost, as set out in the termination letter, also provides accommodation for Mr. Stewart’s disability.

…I accept that the accommodation offered through the ameliorative disclosure provisions of the Policy, the 6 month offer of reinstatement and the offer to pay a portion of the rehabilitation costs as per the termination letter, constituted appropriate accommodation in the facts of this case, to the point of undue hardship. …

(Emphasis added)

The chambers judge felt that the “decisive point for accommodation” was Stewart’s “state of denial” that caused him to think that he had nothing to report under the policy. In other words, Stewart’s denial excused him from knowing that he needed treatment.

The flaw in the argument, and respectfully I find in the Tribunal’s reasoning and findings, is the absence of any evidence that Stewart knew, on or before the date of the accident in question, that he needed treatment under the Policy. Evidence of his addiction came only after the fact. No one disagreed that Stewart had no pre-accident awareness of it.

Both experts before the Tribunal agreed Stewart was to some extent in denial (although of what there appeared to be some disagreement – Stewart’s expert suggested he was squarely in denial of his addiction, whereas Elk Valley’s expert appeared to allow only that he was in denial of the effects of drug use on his job-related performance, although in cross examination he appeared to allow that “…[Stewart was] in denial of the idea that he had a drug problem”). In any event, on the evidence the Tribunal concluded that to “some degree” Stewart may have been in denial.

On my reading of the evidence however Stewart only had capacity to control his drug use. Equally on the evidence, Stewart did not know he was an ‘individual with a disability’. On the evidence, before the accident he was simply an individual who used drugs. The ameliorative provisions relied on by the employer do little if anything for such an individual. The Policy protects from discipline or involuntary termination only those individuals who have a ‘dependency or addiction’ and who seek treatment before an accident. It does not apply to drug users who only later come to realize they were addicted to drugs.

Immediately after providing this quote in its decision, the Court of Appeal noted that the chambers judge did not factor into the decision the employer’s practice of allowing employees a chance to return to work after rehabilitation or treatment.

What did the Court of Appeal say on the accommodation issue?

The Court disagreed with the chambers judge on this issue (i.e., that he did not think he was dependent on cocaine – denial) essentially saying that a claim of denial might be treated as a vaccine against discipline:

The suggestion that Stewart was in ‘denial’ does not convert the reasonableness of the accommodation steps of Elk Valley into something else. Indeed, the opinion evidence on which the Tribunal relied suggests that to accede under the Policy to the possibility of denial would not even address the problem of denial itself. Creating a situation where, post-incident, claims of denial might be treated as a potential vaccine against discipline hardly advances the effort to create and maintain a safe workplace.

There is a convolution of logic in using ‘denial’ as a basis for excusing the employee who needs accommodation from bringing that up to the employer as other persons are expected to do. The movement towards treating drug addiction or dependency as a physical disability was grounded in the recognition that there were stereotypical attitudes about the capacity of people to control their addictions. Denial, indeed, is arguably part of that phenomenon. To use denial as a basis for excusing the need to make the employer aware of the need for accommodation would in a sense give drug addiction or dependency a sort of ‘most favoured nation’ status for an employee subject to that form of disability. There are many forms of disability. None should be trivialized.

The appellant’s approach amounts to a suggestion that even an employee in a highly safety sensitive position who knows precisely what he is doing can unilaterally and in a secretive manner disregard the profound safety obligations of his employment not only to the employer but to his co-workers. The absolution for doing so is said to arise from error or misconception on the part of that employee – namely denial. In our view, legitimizing such a subjective manner of defining one’s safety-related employment duties in hazardous work environments loses touch with the test in Meiorin, and with the objectives of anti-discrimination laws.

What is the takeaway?

Substance addiction has been protected human rights characteristic for many years in Canadian human rights law. This area has seen a number of key decisions from the Supreme Court of Canada and appeal courts across Canada. With those decisions, employers and employees have become educated on the disability (e.g., recreational use v. addiction, testing, disciplinary consequences, etc.), but this decision appears to be the first to venture into characteristics of addiction such as enabling and denial in employer policies – in particular, whether substituting a lesser penalty amounts to enabling the addiction, or whether the concept of denial should be considered when an employee fails to disclose a substance use problem. The decision suggests that a policy that provides for alternative discipline and/or that accommodates employees who self-disclose substance abuse issues in safety sensitive work environments are acceptable.

Readers should be aware that there is a lengthy dissent in this decision and the possibility that these issues may be discussed further by the Supreme Court of Canada