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As most employers know, the Ontario Human Rights Code (the “Code”) prohibits discrimination on the basis of, among other things, “disability”. While the Code’s definition of disability does not specifically include drug or alcohol addiction, the Ontario Court of Appeal confirmed over 16 years ago that drug or alcohol dependency would, or could, amount to a disability under the Code. As a result, where an employment decision is made regarding an individual who has, or is perceived as having, an addiction or dependency due to drug or alcohol use, they may be entitled to accommodation under the Code.

But how far does that requirement to accommodate extend when the employee is involved in a workplace accident that is the result of his or her drug/alcohol use? Recently, in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII) (“Stewart”) , the Alberta Court of Appeal considered this question and, in the process, provided employers with greater clarification on how they may address the balance between workplace discipline and accommodation of intoxication issues.

In Stewart, the employee operated a truck hauling coal at a coal mine. Both his position, and the workplace, were characterized as “safety sensitive”, meaning that impaired performance of the employee’s job could result in a significant or catastrophic incident affecting the health and safety of others. After the employee was involved in a workplace collision, a post-accident test revealed that he had consumed cocaine. The employee later admitted that he had used cocaine the night before the accident, and a medical report confirmed that the employee’s ability to handle the vehicle was affected by his drug consumption. The employer terminated the employee as a result of the accident, and the employee launched a human rights claim alleging that his drug use was the result of an addiction and that the employer was therefore obliged to accommodate him by allowing him to seek treatment.

The employer had a drug and alcohol policy (the “Policy”) in place that contained the following important elements:

  • Employees were encouraged to seek assistance for any dependency or addiction issues using the employer’s resources, including its Employee Assistance Program (which included access to treatment resources);
  • The Policy stated that no employee would be disciplined for seeking assistance; however, employees were expected to seek assistance prior to the occurrence of any “Significant Event”, which included work related accidents;
  • The Policy also provided that an employee’s involvement in a rehabilitative effort, or seeking rehabilitative help for an abuse, dependency or addiction problem after a “Significant Event” had occurred would not prevent an employee from being disciplined or terminated; and,
  • In the event that an employee violated the Policy (for example, by testing positive for drugs and/or alcohol), the employer would determine whether the employee would be terminated based on a number of factors, including the employment record of the employee, the employee’s stated pattern of usage, the likelihood that the employee’s work performance had been or may be adversely affected, and the importance of deterring such behaviour in other employees.

In finding that the employer’s policy, and its termination of the employee, was not discriminatory, the Court placed a heavy emphasis on the fact that employees were encouraged to seek assistance before a workplace accident occurred. The Court noted that the employee did not suffer an adverse impact (which is necessary for discrimination to occur) because of any disability; rather, it held that to the extent the Policy singled out the subset of employees with alcohol or drug addiction or dependency, the Policy also provided for a protected route to assistance, and did not result in “rigid and inflexible discipline”.

Further, the Court confirmed that the employer’s approach to accommodating addiction disability – that is, requesting that employees seek assistance in advance of a workplace accident – was reasonable and appropriate. The Court commented about the hazards of a system that required employers to accommodate only after a workplace accident occurred, saying:

[…] to say that, instead of discipline, accommodation is demanded after a serious incident at a dangerous workplace would not engender confidence in co-workers about their safety. Indeed, it would create almost a perverse incentive for disregard of policies.  Reporting for work in a hazardous work site should not involve a suspicion lottery by each worker about the possible condition of co-workers. (At paragraph 85)

The Court did not accept the argument that the employee was in “denial” of his condition and, as a result, could not seek assistance prior to the accident, noting at paragraph 87, “[c]reating a situation where, post-incident, claims of denial might be treated as a potential vaccine against discipline hardly advances the effort to create and maintain a safe workplace”.

The Court also noted that individuals suffering from other impairments, such as physical disabilities, are expected to seek out workplace accommodation; “[t]o use denial as a basis for excusing the need to make the employer aware of the need for accommodation”, the Court held at paragraph 88, “would in a sense give drug addiction or dependency a sort of ‘most favoured nation’ status for an employee subject to that form of disability”.

While the Stewart decision comes to us from Alberta, the principles within it may, in time, be applied in Ontario. The decision suggests that employers may rely on alcohol and drug prevention policies to discipline employees involved in workplace accidents, particularly where safety-sensitive positions are concerned. Importantly, employers may require as part of those policies that employees seek assistance and/or treatment for their condition prior to any workplace incident as part of their efforts to accommodate such employees; further, this effort to accommodate will likely be an important factor considered by a reviewing authority in the event a decision to terminate an intoxicated employee that is involved in a workplace accident is challenged.

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