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Supreme Court of Canada Approves “No Free Accident” Drug and Alcohol Policy

23-Jun-17

By Hugh McPhail, Q.C.

A recent Alberta case decided by the Supreme Court of Canada last week gives support to a “no free accident” policy which requires self-disclosure of employees who have problems with alcohol or illicit drugs. It also confirms the important point that a positive alcohol/drug test does not necessarily engage the human rights obligation to accommodate a “disability”.

Elk Valley Coal Corp. operates a mine – an obviously dangerous worksite. To ensure safety, the employer implemented an alcohol/drug policy which required employees to disclose use of drugs/alcohol before an incident occurred. If they disclosed a problem, the employer would accommodate treatment. However, if an employee did not disclose, was involved in an incident, and tested positive, the policy indicated that the employee could be terminated from employment, depending on all of the circumstances.

Mr. Stewart was a loader/driver who claimed to only use cocaine on days off. He did not disclose this use to the employer. He was involved in a safety incident, tested positive for cocaine and was dismissed. With the assistance of his union, he filed a human rights complaint claiming that he was dismissed “because of” his disability (addiction). The Alberta Human Rights Tribunal ruled against him and the decision was upheld by the Supreme Court of Canada. The evidence was important.

The majority decision of the Supreme Court accepted that this was a termination for breach of the policy and NOT a termination where one of the reasons for it was the employee’s addiction. It made the critical finding, based on expert medical evidence, that Stewart could have complied with the employer’s policy. His addiction did not prevent him from doing so. The Court noted that even if Stewart was in denial about his addiction he still knew he should not take drugs while working, had the ability to refrain from taking them, and had the capacity to inform his employer about his drug use.

These will not necessarily be the same findings of fact in future cases.

The case shows how important it is to have a carefully worded policy and how very important it is to accurately express the reasons for termination in similar situations.

The one disappointing aspect of the decision is that the court decided not to change the test for causation for discrimination. The statute says you can’t discriminate “because of” certain prohibited reasons. The case confirms that to constitute discrimination the prohibited reason only has to be one of the reasons the employer acted, and does not even necessarily have to be the primary reason.

If your policy does not expressly permit termination for not self-reporting, it may deprive you of freedom to respond to future positive drug/alcohol tests. It is worth considering adoption of a similar “no free accident” policy.
 

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