Enforceability of Drug and Alcohol Policies—The SCC gets another opportunity to clarify

This post was written prior to our January 2017 merger, under our previous firm name, MacPherson Leslie & Tyerman LLP.

Stewart was an employee of Elk Valley Coal Corporation who was involved in a worksite collision between two vehicles. He later tested positive for cocaine and admitted to his drug use. Elk Valley’s drug and alcohol policy allowed employees with drug and alcohol addictions or dependency to actively seek out rehabilitation without fear of discipline. However, if an addiction was disclosed to Elk Valley after an accident had already occurred, the policy provided that the employee could be disciplined up to and including termination of their employment. Stewart had not disclosed any addiction prior to the collision. Elk Valley terminated Stewart’s employment shortly after the collision.

Stewart stated that he did not discover that his cocaine use was an addiction until after the accident. He then filed a human rights complaint alleging that Elk Valley discriminated against him by terminating his employment as a result of his addiction. The Human Rights Tribunal and the Courts all found that Stewart’s employment was not terminated because of his addiction but because he violated Elk Valley’s drug and alcohol policy.

The Alberta Court of Appeal also found that Elk Valley’s policy was a valid attempt to accommodate substance addiction, even though it would not be effective when an employee is in denial about his or her addiction. Although denial is often a component of drug addictions, employees cannot use denial as an excuse for failing to make their employer aware of the need for accommodation. Leave to appeal to the Supreme Court of Canada has been granted and we are awaiting the hearing and decision.

The Stewart case provides support for Employer policies that encourage employees to proactively disclose an addiction or dependency. The appeal to Canada’s highest Court will be the final say on the matter, and will have important implications for employer’s drug and alcohol policies. We will keep you posted on further developments in this important decision.