Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.
Issue link: https://digital.hrreporter.com/i/671698
Taking the "high" road Alberta Court of Appeal clarifies enforcement of workplace drug and alcohol policies BY STEPHEN SHORE AND IOURI VOROBIEV T here is no doubt about it. Addic- tion to drugs and alcohol is a rec- ognized disability and an employer has a duty to accommodate an em- ployee who has such a disability. is raises complex issues for an employ- er that has found an employee impaired or using drugs or alcohol in a way that nega- tively impacts the workplace. A common is- sue faced by employers is an employee who claims the protection of an addiction-based disability only after discipline (or termina- tion) is meted out for breach of the employ- er's drug and alcohol policy. is issue was addressed in a recent de- cision of the Court of Appeal for Alberta, Stewart v. Elk Valley Coal Corp. In this case, the Court of Appeal upheld a termination of a drug-dependent employee for a breach of a drug and alcohol policy. e impact of the decision lies in the court's assessment of the policy and its find - ing that a breach of the policy was sufficient cause for termination. e Supreme Court of Canada has granted leave to appeal and is expected to hear arguments later this year. A review of the background and decision of the Alberta appeal court will set the stage for this evolving legal battle. What happened? Ian Stewart worked as a haul truck op- erator at a coal mine. His job involved the operation of large, 170-tonne and 260-tonne trucks. e coal mine, run by Elk Valley Coal Corporation, was a safety-sensitive operation and Stewart performed a safety-sensitive job. Stewart's employment was terminated after he drove his load truck into another truck at the mine and thereafter tested posi- tive for cocaine. Stewart admitted he had used cocaine the night before and that this had made him sleepy. However, Stewart only disclosed his drug use to his employer after he was terminated. He claimed he did not know he was drug- dependent until after the incident which led to his termination. e employer's drug and alcohol policy Stewart's employer had a drug and alco- hol policy which allowed employees to self-disclose a dependency without fear of discipline or termination. e policy also stated Elk Valley would support and assist in an employee's rehabilitation if that employee proactively reached out for assistance. However, if an employee came forward only after an incident, the employee would not be shielded from discipline or termination. Stewart had attended a training session on Elk Valley's drug and alcohol policy and signed an acknowledgement confirming he read and understood the policy. Stewart's employment was terminated two weeks after the incident for violating the drug and alcohol policy. In the termi - nation letter, Elk Valley offered Stewart an opportunity to be reinstated to his job after six months, with proof of successful com- pletion of a rehabilitation program, 50 per cent of the cost of which Elk Valley offered to cover. Alberta Court of Appeal decision In a 2-1 decision, the court found that Stewart was not subject to discrimina- tion on the basis of disability. e court applied the following three-part test for discrimination: • Does the employee have a characteristic protected from discrimination? • Has the employee experienced an adverse impact? • Was the protected characteristic a factor in the adverse impact? Only the third part of the test was in dispute: whether Stewart's disability was a factor in the decision to terminate his em - ployment. Stewart's principal argument was that since he was influenced by his drug dependency at the time of the incident, his disability was the reason he breached the policy. As such, he claimed his subsequent termination was discriminatory. e court rejected the argument on the basis of two related findings. First, ex - pert evidence adduced at the initial tribu- nal hearing established that Stewart had control over his drug use and an ability to disclose. Second, his failure to disclose his drug use under Elk Valley's drug and alcohol policy was a conscious choice. Accordingly, the court held there was culpable conduct in Stewart's violation of the disclosure re - quirement of the policy, and Elk Valley was justified in relying on this as cause for his discharge. Lessons for employers e Stewart decision demonstrates the impact a well-designed drug and alcohol policy will have on court review. Namely, that a policy which offers immunity for prior self-disclosure and access to treat- ment can increase the likelihood that dis- cipline for a violation of the policy will be upheld. Elk Valley's policy did not contain a zero- tolerance standard with harsh and imme- diate consequences for a violation. Rather, it offered support for an employee with a dependency issue on the condition of self- reporting. By designing the policy in such WORKPLACE drug and alcohol policies often tread tricky ground. Employers obviously want to eliminate drugs and alcohol from the workplace and the risks potentially intoxicated employees could cause — especially in safety-sensitive workplaces — but it's not always as simple as getting rid of employees caught with or intoxicated from those substances. In many cases, an employee may be in possession of or intoxicated by drugs or alcohol because of an addiction that qualifies as a disability that must be accommodated. However, a well-written and thoughtful policy can help an employer effectively deal with the problem of drugs and alcohol in the workplace — and accommodation isn't always required, even if an employee claims a dependency. BACKGROUND 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: DRUG & ALCOHOL POLICIES The employee only disclosed his drug use to his employer after he was terminated. He claimed he didn't know he was drug-dependent until after the incident which led to his termination.