Update by Erin Brandt, Cofounder

In Stewart v. Elk Valley Coal Corp, 2017 SCC 30, the Supreme Court of Canada considered a claim of discrimination relating to drug and alcohol testing following an on-site accident. The Court affirmed that an employee’s dismissal in these circumstances was not discriminatory, since the employer had a clear drug and alcohol policy in place which the employee knew about, and breached.

Background

Mr. Stewart worked in an Alberta coal mine, driving a loader. On his days off, he used cocaine, but did not disclose any dependency issues to his employer.

The employer had a policy in place requiring employees to disclose any dependence or addiction issues so that they could be offered treatment. The policy stipulated that if an employee failed to disclose and was involved in an incident at work and tested positive for drugs, they would be dismissed – aka the “no free accident rule”.

The aim of the policy was to promote safety by encouraging employees with substance abuse issues to come forward and seek treatment proactively, before any drug-related problems occurred on-site. All employees attended a training session where the policy was reviewed and explained.

One day on the job, Mr. Stewart’s loader was involved in an accident. He tested positive for drugs, after which he told his employer that he thought he had a cocaine addiction. Nine days later, Mr. Stewart was dismissed under the company’s “no free accident” rule.

Mr. Stewart subsequently filed a complaint against his employer with the Alberta Human Rights Tribunal (the “HRT”), claiming that he had suffered discrimination in the workplace on the basis of a disability (i.e. addiction).

Decision

The HRT concluded that Elk Valley dismissed Mr. Stewart because he breached company policy, not because of his addiction. Both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal agreed, following Mr. Stewart’s appeal of the HRT’s decision.

In its decision, the HRT emphasized the following:

• Stewart had the capacity to comply with the term of the policy requiring disclosure of his addiction before an incident occurred.

• Denial that he had a problem did not prevent Mr. Stewart from disclosing his addiction prior to the accident.

• The opportunity under the policy to come forward and access treatment without fear of discipline and the invitation to obtain treatment and apply for re-employment in 6 months constituted accommodation by the employer of the employee’s disability.

Mr. Stewart brought a third and final appeal to the Supreme Court of Canada. The SCC also upheld the HRT decision that there was no discrimination based on Mr. Stewart’s drug dependency.

Key Takeaway for Employers

The SCC decision in Stewart highlights that employer drug and alcohol policies should not only address workplace safety concerns but also accommodation of employees with addiction. As noted above, Mr. Stewart’s dismissal was likely upheld because Elk Valley’s policy had been clearly communicated to employees and allowed for disclosure of addiction with treatment rather than disciplinary consequences.

Key Takeaway for Employees

While it may be discriminatory to lose employment because of a drug or alcohol addiction, in this case the employee’s dismissal wasn’t discriminatory because it was his failure to follow his employer’s non-discriminatory policy that led to his dismissal. Mr. Stewart could have sought accommodation before the serious incident occured. Employees with addiction may wish to seek accommodation before a serious incident at work occurs.