Dealing with drug addiction is a thorny legal issue for HR managers, especially at dangerous work sites like mines and construction projects. Addiction can create significant safety risks for not just the addicted employee but his/her co-workers. By the same token, drug addiction is also considered a disability under human rights laws. And this begs a crucial question that the Supreme Court of Canada has just addressed: Does a drug addict’s protection against employment discrimination constitute an excuse for violating workplace safety rules?
What Happened: An Alberta coal mine operator’s “no free accident” policy required employees to disclose whether they had any drug addictions or dependencies. Those who came forward would be offered treatment; but if they failed to disclose and later got into an accident and tested positive for drugs, they’d be terminated. A loader driver addicted to cocaine chose the latter option. Sure enough, he got into an accident, tested positive and got fired. He claimed disability discrimination but the Alberta Human Rights Tribunal threw out his case.
What the Court Decided: The Supreme Court of Canada said the Tribunal’s ruling was reasonable and refused to overturn it.
How the Court Justified the Decision: Although the majority agreed that firing the driver wasn’t discrimination, they did so for different reasons:
Theory 1: He Was Fired for Violating Policy, Not Being an Addict: The “no free accident” policy was a legitimate safety measure. The driver acknowledged that he knew about the policy but contended that the self-denial associated with his addiction made it impossible for him to come forward and disclose it. But the Court didn’t buy it. He knew that using drugs outside work was dangerous and was perfectly capable of following the policy. The reason he was fired was that he deliberately chose not to, not because he was an addict.
Theory 2: He Was Fired for Being an Addict but Legally So: Another group of Justices found that addiction was at least one factor in the driver’s termination. But while that was enough to taint the decision, it wasn’t enough to prove discrimination. The driver also had to show that the employer failed to accommodate him to the point of undue hardship. The reason he should lose the case was that he couldn’t clear that hurdle. Drug use in a coal mine could have disastrous consequences. The threat of serious and immediate termination was crucial to deter such use. Imposing a lesser penalty on the driver would have undermined the deterrent effect of the policy and imposed undue hardship on the employer, the Justices reasoned.
Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), June 15, 2017
Stewart comes just two months after an Ontario court upheld the Toronto Transit Commission’s random drug and alcohol testing policy in the Amalgamated Transit Union, Local 113 case. Once again, the message seems to be that the employer’s interest in workplace safety trumps personal privacy and disability discrimination rights. Of course, it’s a lot more subtle than that. Thus, while the Stewart case continues the recent judicial momentum in favour of highly restrictive drug policies, we need to be careful not to overblow its significance for future cases. Some caveats to keep in mind:
- Like Amalgamated Transit, Stewart took place in a highly dangerous work setting for which unusually severe health and safety measures were easy to justify;
- The non-punitive treatment offered to voluntary disclosers made the harsh disciplinary provisions for non-disclosers much easier to justify as a safety measure to deter drug use;
- The crucial finding in Stewart that the driver’s addiction had no relation to his decision not to obey the “no free accident” policy is highly questionable (the concurring Justices did, in fact, question it) and doesn’t preclude other courts from finding that addiction did play a role in an employee’s violations in future cases.