Supreme Court of Canada Rules that Anti-Drug Policy is Not Discriminatory
The Supreme Court of Canada, in Stewart v Elk Valley Coal Corp., 2017 SCC 30, recently upheld an Alberta Human Rights Tribunal (the “Tribunal”) decision which found that an employee who tested positive for drugs following a workplace accident was terminated because he breached the employer’s drug and alcohol policy and not for discriminatory reasons.
The decision affirms an employer’s ability to implement proactive drug and alcohol policies to deter substance use in safety sensitive workplaces when those policies are aimed at promoting a safe working environment and are not enacted for retaliatory reasons.
Mr. Stewart drove a loader in a mine operated by Elk Valley Coal Corporation (“Elk Valley”). Looking to promote safety within its mine, Elk Valley implemented an Alcohol, Illegal Drugs and Medication Policy (“Policy”). The Policy included a “No Free Accident Rule” which stated that while employees who disclosed drug/alcohol dependence or addition issues prior to a drug/alcohol related incident at work would be offered treatment, employees who failed to disclose a dependency/addition and who tested positive for drugs/alcohol following a workplace incident would have their employment terminated.
Mr. Stewart both attended a training session on the Policy and signed the Policy acknowledging his understanding of it and it consequences; however, he failed to disclose his cocaine use to Elk Valley. After being involved in a workplace accident he tested positive for drugs and advised Elk Valley that he thought he was addicted to cocaine. Elk Valley terminated Mr. Stewart’s employment pursuant to the Policy.
The Tribunal and Supreme Court of Canada Decision
The Tribunal found that while Mr. Stewart suffered from a disability, namely addiction, he was terminated for breaching the Policy, not his addiction. In other words, Mr. Stewart had failed to establish prima facie discrimination.
The majority of the Supreme Court of Canada (“SCC”) agreed with Tribunal’s decision and dismissed the appeal.
In particular, in an eight to one decision, the SCC confirmed that the Tribunal cited the correct test for prima facie discrimination, being that complainants are required to show that:
- They have a disability recognized under the relevant human rights legislation;
- They experience adverse impact with respect to their employment or a term of that employment; and
- The disability was a factor in the adverse treatment they received.
Turning its attention to the case at hand, the SCC upheld the Tribunal’s conclusion that Mr. Stewart did not establish prima facie discrimination. In doing so, the majority rejected the argument that Mr. Stewart’s addiction prevented him from complying with the Policy, and was, therefore, an “indirect” factor in the termination of his employment. While acknowledging that addiction can sometimes deprive a person of the capacity to comply with workplace policies, the majority found that Mr. Stewart had the capacity to comply with the terms of the Policy. In particular, Chief Justice McLachlin wrote:
“While Mr. Stewart may have been in denial about his addiction, he knew he should not take drugs before working, and he had the ability to decide not to take them as well as the capacity to disclose his drug use to his employer. Denial about his addiction was thus irrelevant in this case.”
The SCC therefore agreed with the Tribunal’s decision that Elk Valley had terminated Mr. Stewart’s employment for breach of the Policy and not because of his addiction.
While a finding of discrimination will depend on the facts of the particular case and the nature of an individual’s addiction, the SCC has made it clear that employees who have the capacity to voluntarily disclose an addiction to their employer, but who fail to do so, cannot escape discipline arising from breach of a policy by relying on their addiction.
The decision affirms employers’ ability to implement policies to prevent alcohol and drug use in high-risk workplaces. In particular, employers may impose sanctions for breach of safety policies, even when an employee may suffer from a disability. It should be kept in mind, however, that safety policies will not override an employer’s duties under applicable human rights legislation.
In terms of best practices, employers should:
- Provide employees with a copy of the relevant policy;
- Obtain employee acknowledgment of the policy;
- Provide training to employees on the policy, and repeat that training at regular intervals;
- Train supervisors on how to appropriately respond to disclosures from employees about substance issues;
- Ensure substance-addicted employees are reasonably accommodated.
- Be explicit and easy to understand;
- Provide support to employees for their drug and alcohol dependencies when possible/appropriate;
- Provide employees with the opportunity to disclose their substance issues to the employer without retaliation before safety is compromised;
- Be regularly reviewed to ensure compliance with the law.
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