Canadian HR Reporter

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Compensation Surveys Incentive Programs Job Descriptions Job Evaluation Pay Equity Performance Appraisal Salary Administration Sales Compensation (416) 498-7800 www.resourcecorporation.com COMPENSATION CONSULTING Taking the 'high' road in Alberta Court of Appeal clarifi es enforcement of workplace drug and alcohol policies ere is no doubt about it. Addiction to drugs and alcohol is a recognized dis- ability and an employer has a duty to ac- commodate an employee who has such a disability. is raises complex issues for an employer that has found an em- ployee impaired or using drugs or alcohol in a way that negatively impacts the workplace. A com- mon issue faced by an employer is an employee who claims the pro- tection of an addiction-based dis- ability only after discipline (or ter- mination) is meted out for breach of a drug and alcohol policy. is issue was addressed in a recent decision of the Court of Appeal for Alberta, Stewart v. Elk Valley Coal Corp. In this case, the court upheld the 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 fi nding that a breach of the policy was suffi cient cause for termination. The Supreme Court of Canada has granted leave to appeal and is expected to hear arguments later this year. A review of the background and de- cision of the Alberta appeal court will set the stage for this evolving legal battle. Background Ian Stewart worked as a haul truck operator at a coal mine. His job in- volved the operation of large,170- tonne and 260-tonne trucks. It was a safety-sensitive operation and Stewart performed a safety- sensitive job. Stewart's employment was ter- minated after he drove his load truck into another truck at the mine and thereafter tested posi- tive for cocaine. Stewart admit- ted he had used cocaine the night before and that this had made him sleepy. However, Stewart only dis- closed his drug use to his employ- er after he was terminated. He claimed he did not know he was drug-dependent until after the in- cident that led to his termination. Stewart's employer had a drug and alcohol policy that allowed employees to self-disclose a de- pendency without fear of disci- pline or termination. e policy also stated Elk Valley would sup- port 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 had signed an acknowledgement confi rming he read and understood the policy. His employment was termi- nated two weeks after the incident for violating the drug and alcohol policy. In the termination letter, Elk Valley off ered Stewart an op- portunity to be reinstated to his job after six months, with proof of successful completion of a re- habilitation program, 50 per cent of the cost of which Elk Valley of- fered to cover. Alberta Court of Appeal decision In a 2-1 decision, the court found Stewart was not subject to discrimination on the basis of disability. e court applied the following three-part test for discrimination: • Does the employee have a char- acteristic protected from dis- crimination? • 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 Stew- art's disability was a factor in the decision to terminate his employment. Stewart's principal argument was that since he was infl uenced by his drug depen- dency 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 argu- ment on the basis of two related fi ndings. First, expert evidence adduced at the initial tribunal 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 requirement of the policy, and Elk Valley was justifi ed in relying on this as cause for his discharge. Lessons for employers The Stewart decision demon- strates the impact a well-designed drug and alcohol policy will have on court review. Namely, that a policy that off ers immunity for prior self-disclosure and access to treatment can increase the likeli- hood discipline for a violation of the policy will be upheld. Elk Valley's policy did not con- tain a zero-tolerance standard with harsh and immediate conse- quences for a violation. Rather, it off ered support for an employee with a dependency issue on the condition of self-reporting. By designing the policy in such a way, the onus was put back on Stewart to justify his decision to not disclose a dependency prior to the incident. As he failed to of- fer a persuasive justifi cation, the court upheld his termination for cause. At the same time, an employer is advised to proceed with cau- tion when relying on Stewart, as the decision appears to brush up against core principles that have governed the law of addiction — principally, that "denial" is consid- ered a part of the disease. As stated above, leave to appeal to the Supreme Court of Canada has been granted and one might expect the "denial" argument to be front and centre in the hearing. While the Supreme Court judg- ment will be the fi nal say on the matter, there are present take- aways for employers: • A drug and alcohol policy should have purposes beyond the mere stigmatization of drug and alco- hol use. ese purposes — ac- cident prevention, absenteeism reduction and employee well-be- ing — should be discussed in the policy and refl ected in how the policy operates and is applied. • An employee's claim to be drug- or alcohol-dependent does not automatically convert culpable conduct into non-culpable con- duct. An employer should review all relevant circumstances before concluding the employee's mis- conduct was truly disability- related. For more information see: • Stewart v. Elk Valley Coal Corp., 2015 CarswellAlta 1190 (Alta. C.A.). Stephen Shore and Iouri Vorobiev are lawyers at Sherrard Kuzz, a man- agement-side labour and employ- ment law fi rm in Toronto. ey can be reached at (416) 603-0700 (main), (416) 420-0738 (24-hour) or by visiting www.sherrardkuzz.com. Court of Appeal clarifi es enforcement of workplace drug and alcohol policies Court of Appeal clarifi es enforcement of workplace drug and alcohol policies ere is no doubt about it. Addiction to drugs and alcohol is a recognized dis- ability and an employer has a duty to ac- commodate an employee who has such a Stephen Shore and Iouri Vorobiev Legal VieW Court of Appeal clarifi es enforcement of workplace drug and alcohol policies Court of Appeal clarifi es enforcement of workplace drug and alcohol policies Court of Appeal clarifi es enforcement of workplace drug and alcohol policies Court of Appeal clarifi es enforcement of workplace drug and alcohol policies A recent decision of the Court of Appeal for Alberta upheld the termination of a drug-dependent haul truck operator at a coal mine for breach of a drug and alcohol policy. Credit: Ilya Naymushin (Reuters)

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