2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
SCC Declares Termination for Impairment in the Workplace Not Discriminatory
Canadian Courts have long wrestled with the protection of human rights in the context of workplace drug and alcohol policies. On one hand, many workplaces, especially those engaging in physical or industrial work, have a genuine interest in promoting job site safety via drug and alcohol policies. On the other hand, drug and alcohol addiction has been recognized as a prohibited ground under category of “disability” in Federal and Provincial human rights legislation. In the recent decision of Stewart v Elk Valley Coal Corp., 2017 SCC 30, the Supreme Court of Canada (“SCC”) had the opportunity to address the human rights implications of employer policies requiring disclosure of drug and alcohol dependence or addiction related issues. The Court held that termination for violation of the drug and alcohol policy was not discriminatory where it could be shown that it was the violation of the policy itself, and not the employee’s addiction, that led to termination.
The Employer operated a mine. To ensure safety, the Employer implemented an Alcohol, Illegal Drugs & Medication Policy (the “Policy”) that included, among other things, a provision that employees were to disclose any dependency or addiction issues before any drug or alcohol related incident occurred. If they did, they would be offered treatment. If employees failed to disclose and were involved in an incident and tested positive for drugs or alcohol, they would be terminated.
The Employee was involved in a workplace accident involving a front loader. As part of its investigation into the accident, the Employer had the Employee submit to drug and alcohol testing. The Employee tested positive for cocaine. Prior to the workplace accident, the Employee had never disclosed his cocaine use to the Employer. After the accident, the Employee alleged that he thought he was addicted to cocaine. The Employee was terminated for having violated the Policy. The Employee challenged his termination, claiming that he had been terminated because of his addiction; an allegation that, if true, would constitute discrimination under the Alberta Human Rights Act, R.S.A. 2000, c. A-25.5.
The Alberta Human Rights Tribunal upheld the termination on the grounds that the Employee was not terminated because of his addiction but rather was terminated for violating the Policy. The Alberta Court of Queen’s Bench and Alberta Court of Appeal upheld the decision of the tribunal.
The Employee was not terminated because of his addiction but rather because of his failure to comply with the Policy. He would have been fired regardless of whether he was an addict or a casual user. Further, the Employee had not been adversely impacted by the Policy as he was fully capable of complying with the Policy but chose not to.
The SCC noted that drug policy cases fall along a spectrum. At one end of the spectrum are cases in which an employee’s addiction renders them completely incapable of complying with a workplace policy for reasons related to their addiction. In these cases, sanctions may not be possible without violating human rights legislation. For example, if a nicotine addicted employee violates a policy prohibiting smoking, he or she could not be sanctioned without discrimination. At the other end of the spectrum are cases in which an employee is fully capable of complying with the workplace policy but chooses not to. While denial may be one aspect of the Employee’s addiction, he nevertheless understood that he should not take drugs before working, and had the ability to decide not to take drugs as well as the capacity to disclose his drug use to the Employer.
What This Means For Employers
Stewart is important for its role in clarifying the law surrounding the creation and enforcement of workplace drug and alcohol policies that require disclosure of addiction. The case also provides legal guidance on what types of policies an employer can enforce and how they should proceed with enforcement. While the SCC ruled that the Employee in this case was capable of compliance with the Policy, they left open the possibility of finding a different employee, under different circumstances, incapable of disclosing drug use as a result of their addiction.
Policies requiring the disclosure of alcohol and drug dependency or addiction related issues, and the enforcement of such policies, will not necessarily result in a finding of discrimination. Policies that are impossible for drug and/or alcohol dependant employees to comply with should be avoided, as there is significant risk that such policies will be found to be discriminatory.
Finally, where an employer decides to proceed with disciplinary actions against an employee they should make it clear that the discipline is not a result of the employee’s addiction, but is instead based on the breach of a workplace policy.