Alberta: Top Court Upholds Employer's ‘No Free Accident' Drug Policy

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By Peter Menyasz

Canada's top court has held that Alberta mining firm Elk Valley Coal Corp. was within its rights to dismiss an employee for violating the company's “no free accident” policy on drug use ( Stewart v. Elk Valley Coal Corp., Supreme Court of Canada, No. 36636, 06/15/17).

The “no free accident” policy offered treatment to employees who disclosed a problem but allowed termination of employees who didn't disclose a drug problem, were involved in an accident and tested positive for drugs. All employees attended training and signed a form acknowledging understanding of the policy.

The ruling demonstrates that a properly written and applied policy can provide the basis for discipline or dismissal of employees for drug use in safety-sensitive jobs, despite drug and alcohol addiction potentially providing a basis for discrimination claims, employment lawyers told Bloomberg BNA.

Policy ‘Crucial' to Deter Drug Use

The Alberta Human Rights Tribunal's rejection of the discrimination claim by Elk Valley employee Ian Stewart was reasonable because the evidence supported a conclusion that Stewart was terminated for violating a clear employment policy, not due to drug addiction, the Supreme Court of Canada said June 15 in an eight-to-one ruling.

“The Tribunal concluded that Stewart had the capacity to comply with the terms of the policy and that he would have been fired whether he was an addict or a casual user,” Chief Justice Beverley McLachlin said in the ruling. “It was therefore not unreasonable for the Tribunal to conclude that there was no prima facie discrimination.”

The human rights tribunal “unequivocally and repeatedly” stated that addiction was not a factor in the decision to terminate and concluded Stewart knew he should not take drugs before working and had the capacity to decide not to take them and to disclose his drug use to the employer, McLachlin said.

Because discrimination wasn't a factor in the dismissal, it wasn't necessary to consider whether Elk Valley Coal made appropriate efforts to accommodate the employee's drug problem, McLachlin said.

Two of the Supreme Court justices who supported the majority ruling found that the tribunal incorrectly discounted drug dependency as a factor in the employee's termination.

It isn't necessary to find that termination was solely or even primarily due to discrimination, but only that there was a connection between the protected ground for discrimination and the adverse effect, said Justices Michael Moldaver and Richard Wagner. But even if there was discrimination, in this case the employer met its duty to accommodate the employee to the point of undue hardship, they said.

In addition, a lesser penalty would have undermined the policy's deterrent effect, they said.

“It was crucial to deter employees from using drugs in a manner that could negatively affect their work performance and potentially lead to devastating consequences,” they said.

E. Wayne Benedict, a lawyer with Calgary firm McGown Cook Barristers & Solicitors, who represented Stewart on behalf of the Mine Workers Union, declined June 17 to comment on the ruling.

Peter Gall, a partner with Vancouver law firm Gall Legge Grant & Munroe LLP, who represented Elk Valley Coal, didn't respond to a request for comment.

Well Crafted Policy Critical

The Supreme Court's ruling is important in upholding employers' rights to craft strong anti-drug policies, Richard Charney, a partner in the Toronto office of Norton Rose Fulbright LLP, said June 17.

It confirms that a possible addiction doesn't mean disciplinary action against an employee is automatically a human rights breach, and a policy that might affect drug users isn't discriminatory when there is a universal reporting obligation and workers are capable of complying, Charney, global head of the firm's employment and labor practice, told Bloomberg BNA.

“In safety-sensitive circumstances, workplace policies may compel employees to report in advance drug use,” Charney said. “Where there are such policies, they must be clearly written, brought to the attention of employees, and enforced. This is a good workplace lesson beyond drug issues.”

The ruling also suggests that the mere existence of an addiction doesn't mean an employee is incapable of decision-making, so if that is claimed in future cases, it must be proven, he said.

“This is significant because it seems to allow for an element of will even in the face of an addiction,” Charney said. “Where the line will be drawn in the future remains to be seen.”

Andrea York, a partner in the Toronto office of Blakes LLP, agreed June 20 that the ruling is “good news” for employers because it confirms that drug dependency doesn't immunize employees from discipline or termination if they violate a company policy.

“With a properly worded policy, employers have more flexibility,” York, leader of the firm's national employment and labor group, told Bloomberg BNA. “We're making some progress.”

It's surprising the employee couldn't show that his disability was a factor in the adverse treatment, which would have forced the court to determine if the employer made sufficient efforts to accommodate, York said. But he admitted to having the capacity to choose not to use drugs at work, and so could have followed the policy.

Note of Caution

Employers with safety-sensitive work environments should review their alcohol and drug policies and update them as needed to take advantage of the ruling's conclusions, York said, especially since such policies often don't include provisions allowing employees to report addictions and obtain help without fear of reprisal.

“Those are two really good things to include,” York said.

Charney noted, however, that the top court assessed the human rights tribunal's finding on the basis of reasonableness, so it's possible the court could also have upheld a finding of discrimination on the same facts.

“Another note of caution is that the court seemed to rely upon the fact that Mr. Stewart was capable of complying with the policy even if it was difficult for him,” Charney said. “Perhaps the outcome would have been different if the medical evidence had suggested otherwise.”

The Supreme Court's ruling aligns with recent decisions that prioritize safety and deterrence, including the Ontario Superior Court of Justice's April 2017 decision in support of the Toronto Transit Commission's random alcohol and drug testing policy, the Calgary office of law firm Stikeman Elliott LLP said June 16.

“Both decisions confirm that where safety is of paramount importance in a workplace, the rights of employers to maintain that safety using a properly implemented drug and alcohol policy will be protected as long as the policy is reasonably tailored to the purpose of safety and any resulting consequence is based on a breach of the policy rather than any disclosed dependence issue,” the law firm said in an analysis.

Accident Triggered Dismissal

Stewart, who drove a loader at an Alberta coal mine, was subject to the company's alcohol, illegal drugs & medication policy, which required employees to disclose any dependence or addiction issues before any drug-related incident occurred.

Stewart used cocaine on days off, but didn't tell the employer. Near the end of a 12-hour shift in October 2005, his loader was involved in an accident with a truck. No one was injured, but Stewart tested positive for drug use. During a meeting with the employer, Stewart said he thought he was addicted to cocaine, and nine days later he was terminated.

Stewart's union, United Mine Workers Local 1656, filed a complaint on his behalf with the Alberta Human Rights Tribunal claiming that he was terminated for addiction and that this represented discrimination against a recognized disability under Alberta's Human Rights, Citizenship and Multiculturalism Act.

Dissent Finds Discrimination

Justice Clement Gascon's dissent to the Supreme Court's majority ruling argued that the broad societal belief that individuals suffering from drug dependence are authors of their own misfortune or are less credible than people suffering other disabilities can impair the ability of courts to objectively assess whether there is discrimination in specific cases.

“A drug policy that automatically terminates employees who use drugs prima facie discriminates against individuals burdened by drug dependence,” Gascon said. “The tribunal's analysis was unreasonable because it misunderstood the legal principles informing discrimination law and was unsupported by its factual findings.”

Among other things, the tribunal's ruling relied on the employee making prudent choices to avoid discrimination, which amounts to a form of “contributory fault” defense for discrimination that shifts the burden to employees to avoid discrimination rather than requiring employers not to discriminate, Gascon said.

Gascon also rejected the human rights tribunal's finding that the employer made reasonable efforts to accommodate the employee, noting that this requires arranging the employee's workplace or duties to enable the employee to continue working, if that can be done without undue hardship.

Elk Valley Coal's policy offered individualized post-incident accommodation but in the case at hand was enforced without considering the employee's individual circumstances, Gascon said, contending that this isn't appropriate even in a safety-sensitive environment.

To contact the reporter on this story: Peter Menyasz in Ottawa at correspondents@bna.com

To contact the editor responsible for this story: Rick Vollmar at rvollmar@bna.com

For More Information

The ruling is available here.

For more information on Alberta HR law and regulation, see the Alberta primer.

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