Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2015 Cases and Trends 6 | September 16, 2015 Cases and Trends that had been agreed to by the union. e updated policy was implemented under Elk Valley's management rights in the collective agreement. e policy allowed employees "with a de- pendency or addiction" to seek assistance for rehabilitation without fear of discipline as long as they did so before a "significant event" such as a work-related incident hap- pened. Elk Valley pledged to help any em- ployees who came forward with "problems of abuse, dependency, or addiction associated with alcohol, illegal drugs and medications" through its employee assistance program (EAP). e policy did not exempt employees who came forward after a significant event from discipline or dismissal, though dis- missal was not automatic. e policy didn't apply to off-duty conduct, so any applicable incident must happen at work. e updated policy elaborated more clearly than the old policy, which simply encouraged employees with concern about their use of drugs or alcohol to seek assis- tance through the EAP. Stewart, along with other employees, attended a training session on the new policy and signed a form indi- cated he understood it. He didn't think he had a problem with his drug use, so he didn't pursue any assistance under the new policy. Elk Valley also had a practice regarding employees who were terminated for drug or alcohol abuse related to their work. If such terminated employees followed a rehabilita- tive program, Elk Valley would consider re- hiring them after six months. Worker involved in workplace incident admitted to cocaine use On Oct. 18, 2005, Stewart was operating a loader truck when he struck another truck. After the incident, he took a drug test and tested positive for cocaine. Stewart ac- knowledged that he had consumed cocaine the night before and was feeling sleepy at the time of the incident because of it. Elk Valley terminated Stewart's employ- ment on Nov. 3, 2005, for violating the alco- hol, drug and medication policy and causing a potentially dangerous workplace incident. In the termination letter, the company said it was "hopeful that you will find the per- sonal resolve that is necessary to overcome an addiction." It also said it would consider an application for re-employment after six months, if there was a suitable vacancy, if he successfully completed a rehabilitation pro- gram and he agreed to a 24-month recovery maintenance agreement with conditions to monitor him. If he completed such an agree- ment, Elk Valley would reimburse Stewart for half of the cost of his rehabilitation pro- gram. e day after his termination, Stewart sent a letter to Elk Valley saying he had "come to realize that I do have a problem for which I am currently seeking professional help." e union offered to help him with treatment at a nearby addiction centre but Stewart didn't follow up. e union filed a complaint that Stewart had a drug addiction that constituted a phys- ical disability and Elk Valley discriminated against him on the grounds of that disability when it refused to continue to employ him because of it. e Alberta Human Rights Tribunal found there was no discrimination because Elk Valley terminated Stewart not because of his drug dependency, but rather because he breached the company's drug and alco- hol policy. e tribunal agreed Stewart had a disability and his termination was adverse treatment, but it found the disability was not a factor in the termination. "e adverse effect of the policy as applied to Mr. Stewart came about, not because of his disability, but because of his failure to stop using drugs and his failure to disclose," said the tribunal. e tribunal also found the application of Elk Valley's drug and alcohol policy wasn't arbitrary and didn't perpetuate stereotypes or disadvantages suffered by drug addicts. e reason for the policy was to remove drug users and drug addicts from the safety sensi- tive workplace. e union appealed the decision to the Alberta Court of Queen's Bench. e court agreed with the tribunal's finding that Stew- art had the capacity to use the assistance provided for in the policy but chose to conceal his drug use and his dismissal was the result of his breach of the policy. It also agreed keeping drug users and addicts out of the workplace was a bona fide occupational requirement in Elk Valley's safety sensitive workplace. However, the court found while the drug and alcohol policy offered accommodation — as did Elk Valley's practice of offering re- employment after six months for rehabili- tated former employees — the accommoda- tion wasn't to the point of undue hardship. In Stewart's case, he only came to realize he had a problem after the incident, at which point he wasn't protected from discipline or termi- nation under the policy if he came forward, said the court. Despite this, the court upheld the tribunal's decision and the union ap- pealed again, this time to the Alberta Court of Appeal. Workers with addictions not disadvantaged under policy: Court e Court of Appeal noted that Elk Valley's drug and alcohol policy singled out "the subset of employees who have or believe they may have alcohol or drug addiction or dependency, of whom perhaps a smaller subset of people who have such a disabil- ity," but the policy provided for a "protected route to assistance," not "rigid and inflexible discipline." e appeal court found the policy could catch an employee with an addiction dis- ability, but also drug users who didn't have a disability. In addition, a disability revealed voluntarily before a significant event would have no adverse impact. As a result, "disabil- ity was not a real factor in the enforcement of the policy," said the appeal court. e appeal court also found the sugges- tion that Stewart was in denial of his con- dition didn't change the reasonableness of Elk Valley's accommodation steps and the policy's purpose of maintaining a safety sen- sitive workplace. Whether Stewart felt he was dependent on drugs or not, he knew he used them before going to work and he had the opportunity to come forward without penalty. "Creating a situation where, post-inci- dent, claims of denial might be treated as a potential vaccine against discipline hardly advances the effort to create and maintain a safe workplace," said the Court of Appeal. e appeal court disagreed with the Court of Queen's Bench regarding accommoda- tion, finding "undue hardship relates to the negative effect on the operations of the employer arising from the effort to accom- modate." Elk Valley's balancing of options for accommodation with its safety sensitive workplace was adequate and the company lived up to its duty to accommodate, said the appeal court. e appeal was dismissed and Stewart's dismissal was upheld, with one Court of Appeal judge dissenting over the issue of whether the adverse effect on Stewart — his termination of employment — was related to his disability. For more information see: • Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225 (Alta. C.A.). « from COCAINE on page 1 Adverse effect from breach of policy, not disability A disability revealed before a significant event would have no adverse impact. As a result, disability was not a real factor in the enforcement of the policy.

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