Written on behalf of Peter McSherry
Drug and alcohol addiction has been recognized as a disability in both Federal and Provincial human rights legislations. This means that, generally speaking, firing someone for an addiction to drugs or alcohol could violate their rights. In Stewart v. Elk Valley Coal Corp. the Supreme Court of Canada had the opportunity to weigh in on whether policies requiring employees to disclose any drug and alcohol addiction have any human rights implications.
The policy and a violation
The Employer operated a coalmine and had a safety policy requiring employees to disclose any dependence or addition issues. Those who did so were offered treatment. However, employees would be fired if they failed to disclose a dependence or addiction and subsequently tested positive for drugs.
The Employee used cocaine during his days off and did not disclose his drug use to the Employer. After being involved in an accident with a front loader the employee tested positive for cocaine. After the accident, he claimed to be addicted to the drug. He was terminated, but filed a grievance claiming his termination constituted discrimination under the Alberta Human Rights, Citizenship and Multiculturalism Act.
No finding of discrimination
The Alberta Human Rights Tribunal ruled in favour of the Employer, finding the Employee had been fired not because of his substance abuse, but because he violated the Employer’s policy. The Alberta Court of Queen’s Bench and the Alberta Court of Appeal both upheld the Tdecision.
The Supreme Court of Canada agreed with the Tribunal’s finding that there had been no prima facie case of discrimination, which is to say there was insufficient proof to show the Employee was fired because he had an addiction.
The Supreme Court’s decision stated the mere existence of addiction by the Employee does not establish discrimination, writing that if that were the case, “If an employee fails to comply with a workplace policy for a reason related to addiction, the employer would be unable to sanction him in any way, without potentially violating human rights legislation. Again, to take an example given by the majority of the Court of Appeal, if a nicotine-addicted employee violates a workplace policy forbidding smoking in the workplace, no sanction would be possible without discrimination regardless of whether or not that employee had the capacity to comply with the policy.”
What this means for employees
Employees, particularly those in safety-sensitive workplaces, should be aware that workplacepolicies requiring the disclosure of alcohol and drug dependencies and addictions are not in and of themselves discriminatory. Employees should also be aware that they cannot necessarily rely on a claim of addiction if they are found to have violated a drug policy at work. Violations of such policies could result in termination, even where an employee claims addiction. If you have questions about your employer’s workplace policies (drug-related or otherwise), or if you have faced human rights or accommodation issues in the workplace, contact the offices of Peter McSherry. We can help you evaluate and protect your rights. We can be reached online or by phone at 519-821-5456.