Canadian Employment Law Today

Canadian HR Reporter, 2020 Canadian Employment Law Today Canadian Employment Law Today | | 7 More Cases More Cases mining discipline and other responses by the company. Company followed protocol in drug and alcohol policy On March 15, 2016, the worker took a ran- dom drug test at Enerflow's request. One week later, the company informed him that he had tested "non-negative" for cocaine. The company prohibited him from "return- ing to the full duties of your current posi- tion until the conditions as outlined in the drug and alcohol policy testing and search policy have been met." It also stipulated that he could only return to work after providing a negative drug screen and positive assess- ment from a substance abuse professional and a mandatory referral to the employee assistance program provider. An SAP assessed the worker and conclud- ed he was at risk of a severe substance use disorder for alcohol and cocaine. The work- er disputed this, saying the SAP misunder- stood information and the amount of co- caine and alcohol he had consumed recently hadn't been recorded correctly. He also complained that the SAP had a background in counselling, not diagnosis, even though the drug and alcohol policy stated the SAP "must have knowledge of and clinical ex- perience in the diagnosis and treatment of alcohol, drugs, and related disorders." The SAP recommended the worker at- tend a residential treatment program. The worker denied he had a disorder, but he agreed to the treatment program. However, the program rejected his application and he asked Enerflow if an outpatient program would satisfy the requirements for return- ing to work. Enerflow said it would not, so the worker filed a human rights complaint, arguing that he didn't have a disability and that Enerflow's implementation of its drug and alcohol policy and treatment of him was discrimination. Enerflow eventually re- turned the worker to his position 16 months after he was suspended. The Alberta Human Rights Tribunal found that Enerflow indicated to the worker that he had a "non-negative" test, but this wording wasn't defined in the policy — only positive or negative tests. In addition, Ener- flow was unable to show that a non-negative result was either confirmed positive or in- dicative of impairment that could create a safety risk. Without confirmation of an actu- al positive test, the tribunal found Enerflow didn't comply with its own policy. The tribunal also found that there was uncertainty in the SAP's assessment from the worker's concern information wasn't re- corded correctly and the worker continued to maintain he didn't have a problem. How- ever, Enerflow didn't proceed with a second assessment. Denial of disability doesn't preclude discrimination Although Enerflow argued that the worker's denial of a disability precluded human rights protection, the tribunal disagreed, finding that the Constitution Act protects "any person" from discrimination because of disability. In addition, Enerflow deter- mined that the worker had a disability that is protected under human rights legislation. The tribunal also found that the worker suffered an adverse impact — the loss of in- come from his removal from work — that was related to the prohibited ground of dis- crimination. These factors together estab- lished prima facie discrimination, said the tribunal. With a finding of prima facie discrimi- nation, Enerflow had to establish it im- plemented its standard in an honest and good-faith belief that it was necessary for workplace safety. However, the tribunal found that its use of the term "non-nega- tive" for the test — not contemplated in the drug and alcohol policy — showed a lack of openness and questioned the company's motives, as well as Enerflow's failure to con- sider outpatient treatment or use an SAP with diagnostic qualifications, as contem- plated in the policy. The tribunal determined that Enerflow didn't make an effort to accommodate the worker and offered no evidence it would have been undue hardship to permit him to attend outpatient treatment — commenting that the worker's denial of a disorder may have been the basis for the rejection of his application to the residential treatment pro- gram. Enerflow's insistence that the worker comply with its "preferred form of treat- ment (which is not available) was not rea- sonably necessary to the fulfillment of safe work performance," the tribunal said. "In my view, immediate implementation of an outpatient program would have been a reasonable accommodation in the face of this complainant's repeated communica- tions that he did not have a disorder," said the tribunal. "The delay prior to the eventual return to work is attributable to [Enerflow's] insistence that only residential treatment was acceptable." Enerflow was ordered to compensate the worker for 16 months' wages and overtime — the period of time from when he was removed from work to the date he was re- turned to work. For more information, see: • Maude v. NOV Enerflow ULC, 2019 AHRC 54 (Alta. Human Rights. Trib.). « from IMPROPER on page 1 Worker denied he had disorder but agreed to treatment CREDIT: JARUN011 iSTOCK The worker restricted drug and alcohol use to Fridays and sometimes Saturdays so he could recover in time to work on Mondays.

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