Supreme Court of Canada Upholds Dismissal of Cocaine Addicted Worker
On June 6, 2017, the Supreme Court of Canada dismissed an appeal from the Alberta Court of Appeal. The majority decision was written by Chief Justice McLachlin.
The employee worked as a loader operator for Elk Valley Coal Corporation. He worked in a safety sensitive position and the employer had a comprehensive drug and alcohol policy. As with most policies, there were two tracks for handling drug use in the workplace: those that suffered from an addiction would be provided treatment; and for those that made poor choices, they would be dealt with in a culpable manner. Employees were encouraged to step forward and voluntarily disclose if they suffered from an addiction and receive treatment before their problems compromised safety in the workplace.
The employee used cocaine on his days off, was involved in an accident in the workplace, and tested positive for cocaine. Following the test, the employee said he was addicted to cocaine and his employment was terminated. The employer stated that the employee was terminated not because of his addiction but rather his breach of the policy (failure to disclose his addiction).
In the initial decision before the Alberta Human Rights Tribunal, the panel found that the employee had failed to establish a prima facie case of discrimination. The employee was able to establish that he had a disability protected under the Act, that he was subject to adverse treatment with regard to a term of employment, but failed to establish that the disability was a factor in the adverse treatment. He was terminated for a breach of the Policy, not because of his addiction. Further, the Tribunal went on to conclude that even if it was wrong in that assessment, the Employer had accommodated up to the point of undue hardship. The Tribunal indicated that the opportunity to self-disclose and access treatment without fear of discipline was an acceptable accommodation. Further, to dilute the penalty of discharge in this instance would dilute the deterrence effect and the remedial goals of the Policy, thereby compromise workplace safety and that alone would amount to undue hardship.
The Court of Queen’s Bench held that the standard for review on the threshold test of a prima facia case was correctness and a more deferential threshold of reasonableness on the issue of reasonable accommodation. The Court affirmed the decision of no prima facie discrimination but found that there would not have been a reasonable accommodation in this case as the employee was not aware of his addiction thus was not in a position to access the offered accommodation.
At the next level, the Court of Appeal dismissed the appeal, finding that there was no prima facia discrimination and finding that the accommodation was reasonable. The Court noted that
“…the employer cannot be required to premise workplace safety policy on flagrant demonstration of addiction … Employers should not be required to establish intrusive workplace rules to sniff out potential addictions”.
The Supreme Court of Canada dismissed the appeal and upheld the original Tribunal decision. The SCC affirmed the original Tribunal finding that the Policy did not adversely impact the employee because he had the capacity to comply with the terms. The SCC focused on the letter of termination which identified the grounds for termination as the failure to voluntarily disclose prior to the accident. The SCC considered the expert evidence provided at the Tribunal, namely that the employee had the capacity to make choices about his drug use and the addiction did not diminish his ability to comply with the policy. At paragraph 39 the SCC made the following observation:
…It cannot be assumed that Mr Stewart’s addiction diminished his ability to comply with the terms of the Policy. In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes. Whether a protected characteristic is a factor in the adverse impact will depend on the facts and must be assessed on a case-by-case basis…
This case represents a significant step forward in giving Employers the tools to ensure a safe workplace. The Court said that based on the evidence, in this case, the employee’s addiction did not preclude his ability to make choices about the timing of his drug use, nor take advantage of the opportunity to self-disclose. Other cases may be decided differently based upon the evidence adduced at the initial hearing. Accordingly, it is important that a thorough cross-examination of the employee be conducted at first instance to canvass evidence of volition and the day to day decisions made by the employee.
A second takeaway is the importance in drafting the letter of termination. In this case, the SCC referred to the termination letter in concluding that it was not the addiction per se that was the trigger for the termination, but rather the breach of the Policy, a Policy that the employee had the ability and capacity to comply with.
The third takeaway is to have a well vetted and appropriate Drug and Alcohol Policy that treats drug addiction as a disease and appropriately supports and accommodates those suffering from an addiction. An effective policy will enable non-disciplinary self-disclosures wherein an employee with an addiction can access appropriate treatment and support.
The case represents a reconciliation between workplace safety and privacy rights. If the employer is restricted in its access to medical information of its employees, restricted in the ability to impose random testing in the workplace, then the quid pro quo for that privacy is the responsibility of the person who has that information to use it responsibly. In this case, it is the employee. Where there is the opportunity to voluntarily disclose an addiction and receive treatment, employees who hide an addiction will now be held accountable for putting themselves and their co-workers at risk. This is a step in the right direction.