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Substance Use and the Workplace: More Considerations for Employer Accommodation Strategies

04-Nov-15

By Jody Sutherland and Bre Hutchinson

Developing and administering workplace policies on employee substance use is a difficult task for many employers in Canada. The protections afforded by human rights legislation to employees with substance dependency issues creates a unique challenge for employers that must balance employee rights with workplace safety issues, and both courts and administrative bodies continue to wrestle with new issues in this area.

This summer the Alberta Court of Appeal released its decision in Stewart v. Elk Valley Coal Corporation, (“Stewart”). Stewart has widely been considered good news for employers, particularly those who rely on policies that require employee disclosure of drug use and dependency problems. In Stewart, the Court upheld a finding that an employer had not discriminated against an employee who had a cocaine dependency. The employee had advanced a complaint after his employment was terminated due to a collision that involved a vehicle he was operating on the worksite. In a drug test administered after this collision, the employee tested positive for cocaine. While he admitted to the use of cocaine on his days off, he had not disclosed this use to his employer. He did not believe he had a problem with drug use and did not feel his cocaine usage affected his work performance. After the termination of his employment, he came to the realization that he did have a problem and sought professional assistance.

At the time of the incident, the employer had a policy that allowed employees to disclose dependency or addiction issues and seek employer assistance with rehabilitation without fear of termination. However, to prevent the employer’s exercise of disciplinary measures, such disclosure had to be made before a “significant event” occurred. Notwithstanding this clear provision, the employee still challenged the termination on the basis of discrimination. The employer argued the decision to terminate the employee was not based on the employee’s dependency, but rather on his failure to disclose or stop his drug use in accordance with their policy.

Of significance to this decision is that the employee had argued that, because he was in denial regarding his substance dependency, he was effectively precluded from exercising the option to make use of rehabilitation assistance and avoid remedial consequences. In this way, he maintained the policy did not accommodate him. The Court of Appeal emphasized, however, that the employer’s policy was a valid attempt to accommodate substance dependence notwithstanding that accommodation could not be afforded to those in denial of their substance dependency. While denial was acknowledged as a real component of drug dependency, an employee cannot rely on such denial as a valid excuse for failing to make an employer aware of the need for accommodation.

A similarly novel situation with respect to substance use and accommodation was also recently dealt with by an Alberta arbitration board. In The City of Calgary and Canadian Union of Public Employees, the grievor obtained a medical permit for medical marijuana in 2009 for the treatment of chronic pain. He immediately notified two supervisors of the permit, and no concerns or issues with respect to the grievor’s fitness for work were ever identified by the City.

At the time, the City had a policy that required all employees to abstain from substance use prior to or during a scheduled work shift that could impair their ability to safely perform their duties. It also provided supervisors with discretion to determine, based on observed facts, whether an employee was unfit for work due to being under the influence of a substance. While no issues had ever arisen with respect to the grievor’s performance or appearance at work, a manager learned of the grievor’s permit in 2011 and immediately removed him from his safety-sensitive duties. The grievor was placed in an alternate position pending an investigation.

At arbitration, the City acknowledged that the removal of the employee from his driving duties was prima facie discrimination, however, it maintained a occupational requirement had been established that justified the decision to keep the employee from returning to his safety sensitive position. The issue for the Board in this case was not whether the standard was adopted for a purpose rationally connected to performance of a job, which is often the case in these types of decisions, but whether there was an honest and good faith belief the City’s decision was necessary to the fulfillment of a legitimate work-related purpose. Key to the City’s position in this regard is that it had alleged concerns regarding the grievor’s dependency on marijuana.

The City faced several issues with respect to its decision in this case. First, its substance use policy applied to all employees, not just those in safety-sensitive positions. Accordingly, if the employer truly believed the grievor had a dependency problem, it should not have allowed him to work at all. Further, the investigation launched by the City took eight months, during which time the only information that arose that would reasonably support that the grievor had a dependency was a questionable comment he made regarding the history of his use. While the City obtained an Independent Medical Examination to opine on the grievor’s dependency and potential impairment while at work, it was found the information given to the examiner was not factual.

Ultimately, the Board found that no degree of substance abuse or dependency, nor any indication of impairment while on duty on the part of the grievor, was ever established by the City. The Board emphasized that an employer is entitled to conduct investigations to determine whether an employee may be under the influence of a substance while at work. However, such investigations must be carried out fairly and properly.

The above decisions emphasize the importance of ensuring that substance use policies provide clear and appropriate steps to accommodate those with various types of substance use issues. Policies that allow employees to self-disclose substance use or dependency without fear of disciplinary measures are an important tool for employers to use to comply with human rights requirements. The City of Calgary arbitration decision raises particular issues to consider in managing an employee’s use of medical marijuana. Care must be taken in those situations not to jump to conclusions regarding impairment or dependency without having objective facts and conducting a thorough and fair investigation.

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