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What protections are afforded an employee by human rights legislation in a safety-sensitive workplace? What if that employee uses narcotics? And what if that employee doesn’t know he or she is an addict?
These are some of the provocative questions addressed earlier this year in a controversial decision of the Supreme Court of Canada in Stewart v. Elk Valley Coal Inc.
The appellant in Elk Valley is Ian Stewart, a unionized employee who was continuously employed at the Elk Valley coal mine for 9 years with no disciplinary history. One night near the end of a 12-hour shift, the loader Mr. Stewart was driving was involved in a workplace accident.
No one was injured but as required under the employer’s accident investigation policy, he was subjected to a mandatory drug test. Mr. Stewart tested positive for cocaine and was called into a meeting with his employer shortly thereafter.
In that meeting, Mr. Stewart told his employer that he thought he might suffer from substance dependency. Nine days later, his employment was terminated in accordance with his employer’s drug and alcohol policy. As it turns out, Mr. Stewart had last used cocaine 21 hours before the incident, giving rise to his termination.
In terminating Mr. Stewart’s employment, his employer relied on a self-reporting drugs and alcohol policy called “no free accident.” Under this policy, employees were expected to disclose substance dependency issues before any workplace incident occurred. If someone self-reported his or her addiction, they would be offered treatment options and no disciplinary action would be taken against them.
On the other hand, if an employee raised substance dependency as a concern post-incident, disciplinary action was justified under the policy, up to and including termination of employment. Importantly, throughout the litigation, Mr. Stewart maintained he was unaware that he suffered from drug addiction until after the workplace incident that gave rise to his termination. The denial of his addiction, it was argued, was a symptom of his disability and also prevented him from taking advantage of the treatment options made available to him by his employer.
Based on this scenario, the Court was asked to determine whether Mr. Stewart had been discriminated against as a result of his disability. To make a claim for discrimination under Canadian human rights legislation, an employee must demonstrate that:
Upholding the decision of the Alberta Human Rights Tribunal, Chief Justice Beverly McLachlin, writing for the majority, held that it was reasonable for the Tribunal to have concluded that the reason for Mr. Stewart’s termination was not drug addiction, but that Mr. Stewart was fired for breaching the terms of the employer’s policy.
While the Court recognized that drug dependency has the potential to impair an individual’s ability to adhere to workplace disclosure policies, on these facts and considering Mr. Stewart’s individualized substance abuse problem, it was held that he had the capacity to decide either:
Simply put, the Court was satisfied that Mr. Stewart’s addiction was not a factor in his termination.
The Elk Valley decision has important implications for employers crafting and implementing policies related to drugs and alcohol in the workplace. By making a failure to self-report a drug dependency a firing offence, many employers may view a drugs and alcohol policy like the one in Elk Valley as a useful tool for promoting health and safety in the workplace. While this is a laudable goal, we caution that the outcome in Elk Valley cannot be extrapolated to all work environments in all situations.
Employers should be aware of the fact that any policy like the one in Elk Valley must be crafted with a full understanding of the work environment in which it will be implemented, including the health and safety considerations unique to that workplace. Not only must careful attention be paid to the policy language, policy enforcement should be addressed on a case-by-case basis with particular consideration of the language used in any termination letter.
Seeking legal assistance from someone familiar with these issues at the policy development stage can help employers navigate the unique tensions that arise at this intersection of human rights legislation and workplace health and safety.
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