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.
In the instant case, the employee, “Stewart”, was a heavy machine operator with nine years’ of seniority. On October 18, 2005 Stewart was operating a loader truck when he struck another truck on the site, breaking its mirror. Under the company’s drug and alcohol policy, this constituted a “significant event” and Stewart was directed to submit a urine sample which tested positive for cocaine-type drugs. He was immediately suspended.
The employer undertook an investigation meeting among management, Stewart, and his union representative. Stewart disclosed that he had used cocaine between 7 and 8pm on the evening before the collision when he reported for work at 6:30am. He further disclosed that he was a frequent user of crack cocaine on his days off, and had previously used crystal methamphetamine and marijuana. At that meeting, the employee stated for the first time that he thought he had a problem with drug dependence. He had never previously disclosed his drug use or sought rehabilitative assistance which was available to him under the drug and alcohol policy.
On November 3, 2005, Elk Valley dismissed Stewart. The termination letter referenced his violation of the drug and alcohol policy, and that the employer placed primary importance on deterring similar behaviour by other employees. The employer left the door open for Stewart to reapply for new employment with the company, as was its past practice.
The Union grieved the termination, and was initially successful at arbitration. However, the arbitrator’s decision was overturned on judicial review by the Alberta Court of Queen’s Bench. The Union then decided to make an application to the Alberta Human Rights Tribunal, alleging discrimination on the basis of disability. This application was denied, as was the Union’s appeal to the Court of Queen’s Bench. At the Alberta Court of Appeal, the employer once more came out on top.
A majority of the Court endorsed the Tribunal's finding that the employee was dismissed, not because of his drug addiction, but because he breached the policy by showing up to work while at risk of being impaired. In this case, the Court accepted the important evidence that the employee retained the capacity to decide whether or not to take drugs before attending work. At paragraph 35 the Court of Appeal stated:
To put this in perspective, we repeat that the Tribunal found that Stewart had the capacity to control his use of drugs. This conclusion was amply supported by the expert evidence before the Tribunal and even by Stewart’s own perspective.
Plainly, Stewart was not driven in some way to breach the Policy at work because of inability to control his drug use. His was an effort to conceal his drug use. He consciously gambled that he would not be found out as a user of drugs.
The Tribunal more specifically found that Stewart had the capacity to exercise the remedial aspect of the Policy and to seek help for his use of drugs, but that he simply failed to stop using drugs, failed to inform his employer, and failed to stop being impaired in the workplace.
In so saying, the tribunal accepted the diagnosis of Dr. Mace Beckson from July, 2006, that “while Mr. Stewart was addicted to cocaine during his employment at the mine, he did not lack the capacity to change his behaviour if he chose”.
The fact of Stewart’s control over his use of drugs is the crucial distinction between this case and many others. Typically, an employee who has a drug addiction and consequently cannot control their drug use or their behaviour while impaired by drugs may expect some protection from discipline or termination in employment.
This is a fact-specific inquiry, and if it turns out that the employee retains control over their drug use, even if they are dependent, no legal nexus between their disability and their misconduct should be found to exist, and therefore they will not be protected from discipline or discharge in employment on any human rights grounds.
Certainly this is a sensitive and difficult distinction to establish. With the growing prevalence of research and case law however, the professionals at CCPartners are well-equipped to help employers undertake the proper analyses, and to advise employers on next steps and best practices when addressing employees who may be dealing with substance abuse or dependence.