Canadian HR Reporter

CANADIAN HR REPORTER August 7, 2017 8 NEWS A majority — six — of the jus- tices said the appeal should be dismissed: " e reason for the termination was not addiction but breach of the policy. On the facts of this case, the tribunal con- cluded that (Stewart) had the ca- pacity to comply with the terms of the policy and that he would have been fi red whether he was an ad- dict or a casual user. It was there- fore not unreasonable for the tri- bunal to conclude that there was no prima facie discrimination." While Stewart may have been in denial about his addiction, he knew he should not take drugs be- fore working and had the ability to decide to take them, as well as the capacity to disclose his drug use to his employer, said chief justice Beverley McLachlin, who cited the termination letter as further evidence Stewart's addiction was not a factor in his dismissal. Stewart v. Elk Valley Coal Corp. presents an opportunity for em- ployers to "plug in some of the gaps" created by recent decisions where courts have put signifi cant limits on an employer's ability to conduct, in particular, random testing, said Batzel. "Even if your ability to random test employees in a safety-sensitive workplace is limited, you as the employer may still really be able to get to the same place by requiring employees to disclose their own substance use that could lead to impairment, with the possibility of dismissal if they don't voluntarily disclose," he said. " is decision potentially is cre- ating a very useful incentive struc- ture to promote self-disclosure of substance use and misuses, rather than disclosure through invasive testing by the employer." Lack of discrimination To prove prima facie discrimina- tion, three elements must be es- tablished: the complainant has a characteristic protected under the human rights code; the complain- ant experienced adverse impact with respect to the service; and the protected characteristic was a factor in the adverse impact, said Shivani Chopra, an associate at Hicks Morley in Toronto. While the majority found that the fi rst two elements were met (addiction is considered a disabil- ity), they concluded the adverse impact (termination) was not the result of Stewart's disability but be- cause he failed to comply with the terms of the safety policy, she said. e fact that Stewart had a dis- ability was not a factor in the ter- mination, said Chopra. "What led to the termination was failure to follow a workplace safety policy that required him to disclose drug dependence, i.e., his disability, prior to the occurrence of a major incident," she said. "Safety is a very important consideration in workplaces, and human rights legislation as well as the courts seem to be willing to support employers when em- ployees are being terminated for breaching the safety policies — re- gardless of the disability." It's one thing to have a policy that just sits in the desk and work- ers are not aware of, said Chopra. "In this particular instance, the employees were trained on the policy and they had signed an ac- knowledgement saying they were aware of its terms. I think that played a critical role in the major- ity ruling the way it did." And the termination letter was clear enough in stating Stewart was terminated because he failed to disclose his addiction, in accor- dance with the policy, she said. But Jennifer Koshan, a law pro- fessor at the University of Calgary, questioned aspects of the ruling. Part of the problem was Stewart claimed he didn't realize he had an addiction, and didn't think he had a duty to disclose, she said. "It's hard to see how he could have acted diff erently in this case. e majority of the court said he did have some capacity to make decisions around his drug use but I think it's important to note on the facts that his drug use was ac- tually two days before he was back on the job and he did still have re- sidual drugs in his system. ere was no evidence his drug use caused the accident," said Koshan. " e case does show the po- tential unfairness to employees of these sorts of policies where they may be not able to disclose addic- tion to drugs or alcohol because of the very nature of the disease that they have." e Supreme Court kept fram- ing its reasoning in terms of this idea Stewart wasn't fired be- cause of drug use, but rather for breached policy, she said, "but to think about it in those terms re- ally does focus on the employer's reasons for fi ring him, rather than what the eff ect of the employer's decision to terminate his employ- ment was, which… was adverse- eff ects discrimination based on his drug dependency." "I have a really hard time seeing how his disability wasn't a factor in his termination because it was only because of his addiction and his drug use that he breached the policy." e general trend in jurispru- dence has been to look at each case individually, said Koshan. "What (Elk Valley) really seems to do is to give more credence to the need for the policy and the deterrent eff ect the policy suppos- edly is going to have on drug use in the workplace, rather than looking at it from the perspective of the individual employee. And I think jurisprudence suggests it should be a more individualized approach." Takeaways for employers It's challenging for an employer to try to accommodate an employ- ee's disability if it doesn't know the employee has an addiction, said Batzel. "That's a concern employers have had for long time now. is obligation they have in certain circumstances to assist employ- ees to overcome dependency re- ally is from a common-sense per- spective, or should be dependent on their being informed there's a problem in the fi rst place, and I think this decision and a policy that follows it will assist with that." Self-disclosure policies are still rare but are something employers should be looking closely at, he said. "We're of the view that the policy should include a self-dis- closure component, particularly when you're dealing with a safety- sensitive workplace." Elk Valley may provide comfort to employers with safety policies requiring employees to self-dis- close addiction, said Chopra. " at said, employers who op- erate unionized, safety-sensitive workplaces, and who wish to implement drug and alcohol poli- cies incorporating some form of universal random testing, must understand that testing is permit- ted in very rare and limited cir- cumstances and, when done, test- ing should be part of a policy that incorporates principles of health and safety, prevention, accommo- dation and rehabilitation." e decision gives a fair amount of scope to employers that want to implement drug and alcohol policies to off er a self-reporting clause, said Koshan. " ey still need to be careful about employees with addictions, because even the majority of the Supreme Court said there will be some cases where employees with addictions who can't control drug use don't have the capacity to con- trol that and report. So, in those cases, it may be that a fi nding could be made (that) the employer hadn't fulfi lled its duty to accommodate." And lesser penalties might be a good consideration, she said. " at strikes a better balance between the rights of employees and the interests of employers, to think about sanctions short of ter- mination, particularly where you have a workplace accident that's relatively minor, you have an em- ployee with a clean and long re- cord of service," said Koshan. "Termination cannot be seen as having fulfi lled the duty to accom- modate and, in this case, (Stewart) could have been suspended from his employment, allowed to take drug treatment, had his position maintained for him and therefore his seniority level and level of ben- efi ts maintained." Self-disclosure recommended SUPREME COURT < pg. 1 Differing views from court Two Supreme Court justices in Elk Valley felt the tribunal had been unreasonable in concluding Ian Stewart's drug dependency was not a factor in his termination. "To prove prima facie discrimination, (he) is not required to show that his termination was caused solely or even primarily by his drug dependency. Rather, he must only show that there is a connection between the protected ground — his drug dependency — and the adverse effect. His exercise of some control over his drug use merely reduced the extent to which his dependency contributed to his termination — it did not eliminate it as a factor in his termination," said Justices Michael Moldaver and Richard Wagner. However, they did feel the tribunal was reasonable in deciding Elk Valley met its obligation to accommodate Stewart to the point of undue hardship. "Given the employer's safety objectives and responsibilities at the coal mine, it was crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences," they said, and another disciplinary measure would have undermined the policy's deterrent effect. "Incorporating these aspects of individual accommodation would result in undue hardship." However, Justice Clément Gascon disagreed on both fronts, saying there was both discrimination and a lack of accommodation. "A drug policy that automatically terminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence," he said. "Drug dependence was a factor in (Stewart's) drug use, so the policy under which (he) was terminated for using drugs is prima facie discriminatory." As for accommodation, Elk Valley's only effort was letting Stewart voluntarily disclose his disability without discipline, but it appears he was unaware of his addiction, said Gascon. And after termination, Stewart was allegedly accommodated by being given the prospect of re-applying for his position. "But accommodation assists employees in their sustained employment, not former employees who may, or may not, successfully re-apply for the position they lost as a result of a prima facie discriminatory termination."

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