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Firing for Not Reporting Drug Use is Not a Human Rights Violation

07-Jul-15

By Vicki Giles

Last week, with its decision in Stewart v Elk Valley Coal Corporation, the Alberta Court of Appeal gave employers with safety-sensitive workplaces some additional assistance in their battle against drug and alcohol use in the workplace.

Mr. Stewart was employed as a truck and loader operator at a coal mine. The coal mine was a safety-sensitive workplace and Mr. Stewart's job was safety-sensitive. He was terminated in 2005 after testing positive for cocaine when the loader truck he was operating struck another truck. Despite the termination, the employer advised Mr. Stewart that if he successfully completed a rehabilitation program it would be prepared to consider him for new employment six months after his termination date. He would be required to participate in a "recovery maintenance agreement" for 24 months after returning to work but if he completed it successfully, the employer would reimburse him for 50% of his rehabilitation program facility cost.

The coal mine, as part of its efforts to provide a safe work environment, had an alcohol and drug policy which allowed employees with drug or alcohol dependencies to seek assistance prior to the occurrence of a "significant event" without fear of discipline. However, the policy also made it clear that if an employee sought assistance for dependency issues after a significant event or demand for testing by the employer, the seeking of such assistance would not prevent the employee from being disciplined or terminated, although termination was not the automatic result.

Following his positive test, Mr. Stewart admitted to use of crack cocaine on his days off. He chose not to advise his employer of his cocaine use because he didn't think he had a problem with drugs and did not believe that his drug use affected his work performance. Following the accident, he realized that he did have a dependency, which was confirmed by experts who testified at the hearing. Those experts also found that Mr. Stewart had the capacity to control his use of drugs and had the capacity to seek assistance under the policy.

To prove discrimination under human rights legislation a complainant must prove:

  1. he has a characteristic protected from discrimination under the Code;
  2. he experienced an adverse impact as a result of workplace decision; and
  3. the protected characteristic was a factor in the adverse impact.

Both parties agreed that Mr. Stewart's dependency was a disability and that he had experienced an adverse impact (termination), but disagreed as to whether his dependency was a factor in his termination.

Mr. Stewart argued that his dependency was a factor in his termination - his termination arose from his breach of policy and his dependency was a factor in the breach of the policy. The employer argued that he was terminated, not because of his dependency, but because of his failure to stop using drugs and his failure to disclose his drug use.

The Court of Appeal agreed with the employer's position and confirmed (in accordance with two previous similar decisions) that not every link between an employee's disability and an adverse impact will be a "legal" link sufficient to find discrimination. The Court found that the policy did not distinguish between people with disabilities and those without - it distinguished between people who break the policy and those who do not. Both those with addictions and those without could be caught by the policy if they breach it - the fact of disability is irrelevant. In addition, since a disability case could be caught by the employee voluntarily admitting a dependency, the fact of disability is eliminated from the factors which lead to the adverse impact. The evidence in this case confirmed Mr. Stewart could have complied with the policy. As such, his dependency was not a real factor (in the legal sense) in the enforcement of the policy and his ultimate termination.

The Court of Appeal also made some interesting comments about drug/alcohol accommodation in safety-sensitive workplaces. Mr. Stewart argued that although the policy did accommodate employees with addictions, it failed to accommodate those who did not realize they had a problem (i.e. those in "denial"). He suggested that by failing to accommodate those who did not realize they had a dependency until after an incident, the policy did not accommodate to the point of undue hardship.

The case contains interesting comments by the majority in rejecting an argument that accommodation obligations should be greater when a drug user is in denial. The court rejected this argument because they said it would allow employees in highly safety-sensitive positions to unilaterally and secretly disregard their safety obligations to their employers and co-workers. The Court found that to legitimize such behaviour loses touch with the objectives of anti-discrimination laws.

This decision is a welcome one in balancing addiction issues and the real safety risk that drug and alcohol use pose in the workplace. The case shifts the focus from catching drug use to punishing employees for their failure to report their own drug use when the employer policy requires it. Policies should be reconsidered in light of the decision to ensure they clearly require self-reporting and protect employees who self-report and assist them in seeking rehabilitation.

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