In every non-unionized employment relationship, the employer has an implied common law obligation to give the employee reasonable notice of its intention to terminate the employment relationship, unless there is just cause for termination. If the employer fails to give the employee reasonable notice of termination, the employer risks a wrongful dismissal action for breach […]read more
Termination For Drug Impairment Is Not Discriminatory
n a recent decision of the Alberta Court of Appeal, Stewart v. Elk Valley Coal Corp., 2015 ABCA 225, it was held that the termination of an employee who tested positive for cocaine in a post-incident drug test was not discriminatory.
The employee worked in a safety-sensitive position. He was involved in a serious workplace accident and was required to undergo a post-incident alcohol and drug test, pursuant to the employer’s Alcohol and Drug Policy. The employee tested positive for cocaine and was terminated as a result. Following his termination, the employee claimed he suffered from a drug addiction. The employee filed a human rights complaint alleging that the termination was discriminatory on the basis of physical disability, namely, his drug addiction.
The employer’s Alcohol and Drug Policy applied to those employed in safety-sensitive positions. It provided that employees who voluntarily disclosed their drug addiction and/or dependency prior to a “significant event” occurring would receive assistance in achieving rehabilitation without fear of discipline, including termination. Employees who did not disclose their addiction(s) and/or dependency prior to a significant event occurring were not provided with the same protection from discipline.
The employee did not disclose his alleged drug dependency to the employer prior to the workplace accident, despite having attended a training session on the policy and having signed a form indicating he understood the policy.
The Alberta Human Rights Tribunal explained that, although the employee did in fact have a disability, he was not terminated as a result of that disability. Rather, his termination was the result of his breach of the Alcohol and Drug Policy; namely, his failure to stop using drugs and his failure to disclose his alleged drug addiction to his employer prior to the incident.
The Tribunal went further and explained that, in the event discrimination had occurred, the employer had satisfied its duty to provide accommodation to the point of undue hardship. The Tribunal found that the Policy was a bona fide occupational requirement for safety-sensitive positions. The employer sought to accommodate by including an invitation for employees to disclose their drug addiction or dependency with no threat of discipline. If this did not satisfy the employer’s duty to accommodate, it would allow for a situation where employees could claim an addiction post-discipline and use this as a protection against disciplinary actions and thus disregard the safety obligations of their employment to disclose their addiction or dependency in accordance with the policy. This would be contrary to both the employer’s efforts to create and maintain a safe workplace and the objectives of human rights legislation.
The decision of the Tribunal was upheld by the Alberta Court of Appeal.
What This Means for Employers
- Employers can manage the safety risks posed by drug and alcohol in the workplace by implementing policies that apply to employees in safety-sensitive positions.
- The policy may allow employees to disclose to the employer their drug and/or alcohol dependency, in advance of a serious workplace incident, to obtain protection from disciplinary action.
- Employers may discipline employees who fail to comply with the policy so long as it provides accommodation to those employees who disclose their disability in accordance with the policy.
- Employees who fail to disclose their disability, in advance of a serious workplace incident, will not be protected from discipline.