The question of whether an employer has violated either a potential, current or past employee’s human rights is an often litigated one. The courts have continuously examined the protected grounds and circumstances that make rise to this complex area.
Drug and alcohol addiction has been recognized as included under the protected ground of “disability” in Federal and Provincial human rights legislation, thereby prohibiting employers from discriminating against employees on this basis.
In Horrocks v. Northern Regional Health Authority, 2015 MBHR 3 an extensive analysis was done with respect to discrimination, the duty to accommodate and bona fide occupational requirements. In this case, it was found that the respondent did not make reasonable efforts to accommodate the complainant’s disability (alcohol addiction) and thus discrimination had occurred and the employee was entitled to damages.
Inappropriately accommodating the disability of addiction, the question becomes does the dependence disrupts the employees’ ability to engage in SAFE work and whether employers can implement policies to prevent further issues.
In the recent case Stewart v. Elk Valley Coal Corp., (2017) SCC 30 policies relating to disclosing drug and alcohol dependence and whether this constituted discrimination was analyzed. With a view to ensuring safety, the employer implemented a policy requiring that employees disclose any dependence or addiction issues before any drug‑related incident occurred. If they did, they would be offered treatment. However, if the employee failed to disclose, were involved in a workplace incident and tested positive for drugs, they would be terminated.
The employee, in this case, was involved in a workplace accident and through the investigation tested positive for cocaine. The employee was terminated for breaching the policy as he failed to disclose his drug use in advance.
The Tribunal held that the employer had met its obligation to accommodate the employee to the point of undue hardship. Given the safety objectives and responsibilities of the job itself, 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.
The Supreme Court of Canada decided the employee was not terminated because of his addiction but rather his failure to comply with the Policy. The Court held that if an employer terminated an employee and could show that the termination stemmed from the violation of the policy, and not the addiction, then it may not be discriminatory. The Supreme Court of Canada ruled that whether he was a casual user or an addict he had not been adversely impacted by the policy and was fully capable of complying but chose not to.
An important distinction is the employee’s ability to comply with the policy. Employers attempting to implement such policies must be cautious in doing so or they may be found discriminatory. Employers must make it clear that any discipline is a result of the breach of policy and not the addiction itself. This is a sensitive topic and a small error can lead to severe liability on the part of the employer. In order to attempt to avoid such liability, employers should contact an employment lawyer.
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