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Failure to Disclose Addiction Pursuant to Company Policy Justifies Employee Dismissal

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Supporting an employee coping with an addiction is a challenging workplace issue particularly where human rights legislation requires accommodation of employees facing addiction and dependency. But what happens when the employee denies having an addiction and it can or does affect the core duties of the employee?

That’s precisely the circumstance that Elk Valley Coal Corporation (“Elk Valley”) found itself in with respect to an employee, Ian Stewart. Mr. Stewart was employed by Elk Valley as a load truck operator. Elk Valley operated a coal mine and given the safety-sensitive nature of the workplace, it instituted a drug and alcohol policy that allowed employees to voluntarily disclose a drug or alcohol addiction before a “significant event” (i.e. workplace accident) occurred without fear of discipline. The policy stipulated that if employees did not disclose their addictions prior to the significant event, they may be subject to discipline, up to and including termination.

While Mr. Stewart was trained on and confirmed his understanding of this policy, he did not disclose the fact that he used cocaine on his days off work as he believed he did not have a drug addiction.

In 2005, Mr. Stewart was involved in a collision in the worksite for which he was terminated. At this time, Mr. Stewart realized that he did have a drug dependency and commenced a human rights claim against Elk Valley alleging that his termination was discriminatory as it related to a disability – i.e. his addiction.

The Alberta Human Rights Tribunal (the “Tribunal”) dismissed Mr. Stewart’s complaint, despite finding that Mr. Stewart’s addiction was a disability. The Tribunal held that Mr. Stewart was not dismissed because of his disability but rather for his breach of the policy in not disclosing his drug addiction prior to the incident. The Tribunal went further, stating that even if the dismissal was found to have been discriminatory, Elk Valley had accommodated Mr. Stewart to the point of undue hardship because it had allowed employees to disclose their disability without fear of discipline by way of the policy, despite the safety issues in the workplace. The Tribunal held that adherence to the policy was a bona fide occupational requirement that Mr. Stewart had not respected and that his termination was, therefore, justified.

Mr. Stewart appealed this decision and while the court agreed with the Tribunal that there was no discrimination in this case, it disagreed that the policy in itself was adequate accommodation. The court found that an employee’s denial of the addiction may be a symptom of the addiction and such denial should not be relied upon for disciplinary decisions.

The matter was appealed yet again and this summer the Alberta Court of Appeal issued its decision. The Court of Appeal first agreed with the Tribunal and the lower court that Mr. Stewart’s dismissal was not discriminatory because Mr. Stewart was terminated for not complying with the policy and not for his addiction.

The Court of Appeal then reversed the court’s assessment of an employee’s denial being a symptom of the addiction and protected from disciplinary action. It held that such a conclusion would circumvent policies that seek to ensure the safety of the workplace and employees by allowing denial to act as a “vaccine to discipline”. The Court of Appeal warned that such a practice does not advance the accommodation process or the effort to maintain a safe workplace, and should not be upheld. Mr. Stewart’s complaint was therefore dismissed.

This decision provides guidance to employers regarding drug and alcohol accommodation, particularly in the context of a safety-sensitive workplace.  A carefully crafted and implemented drug and alcohol policy which allows for self-reporting of dependencies can serve as accommodation to an employee with an addiction, whether or not the employee recognizes his or her addiction. However, it remains vital that disciplinary actions not be linked to the existence of a drug or alcohol dependency, but rather to other legitimate and well-articulated workplace concerns such as workplace safety.

Parisa Nikfarjam

About the Author: Toronto Employment Lawyer Parisa Nikfarjam regularly speaks to human resources professionals, educators, and business owners about employment law and workplace human rights issues. Parisa has designed and delivers interactive workshops on such topics as youth employment, harassment and bullying, and social media in the workplace.