While courts are becoming increasingly understanding of drug dependence in the workplace, it’s not always clear cut. Here, one industry lawyer explains.
Recent case law has reflected changing attitudes toward and evolving understanding of drug dependence in the workplace.
For examples, drug dependence can be a mitigating factor protecting an employee from discipline or dismissal, and limits on drug testing in the workplace are being more strictly defined at law.
Employers ought to be aware of a decision of the Alberta Court of Appeal, upholding a decision of that province’s Human Rights Tribunal, and decision on review by the Court of Queen’s Bench, confirming an employer’s decision to terminate an employee for breaching the workplace drug and alcohol policy when he tested positive for cocaine after a workplace incident, despite finding that the employee was dependent on drugs.
This was the interesting outcome in Stewart v Elk Valley Coal Corporation, 2015 ABCA 225. The Employer operated a coal mine where the work was inherently safety-sensitive.
Accordingly, the Employer instituted a drug and alcohol policy prohibiting employees’ use or possession of illegal drugs while on duty, but also further provided that employees with a drug or alcohol problem could seek assistance without fear of discipline prior to the occurrence of a “significant event”.
The policy also stated that involvement in, or seeking assistance from, a rehabilitative program after a significant event will not protect an employee from discipline or termination, and that an employee’s use of an employee assistance program or other rehabilitation effort did not relieve employees from the requirement to meet satisfactory performance levels or comply with the policy. Finally, the policy did not provide for automatic dismissal for an employee who did not reveal a dependency or addiction, but directed the employer to make decisions based on all relevant circumstances. In practice, the employer had a history of allowing dismissed employees to return to employment after six months if they successfully followed a rehabilitation program.