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  August 3, 2018

Discrimination on the Basis of Addiction? Not Where Employee Capable of Complying with Workplace Rules

In a decision released on June 15, 2017, the Supreme Court of Canada has held that an employer did not discriminate against an employee when it terminated his employment for failing to disclose his use of cocaine.

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While an employee cannot be terminated on the basis of a substance use disorder, the disability does not mean an employee is rendered incapable of following workplace policies. Employees may be disciplined or terminated for breaching a workplace substance use policy.  

The Supreme Court of Canada has held that an employer did not discriminate against an employee when it terminated his employment for failing to disclose his use of cocaine. The employee in Stewart v. Elk Valley Coal Corporation worked in a coal mine and was subject to a “no free accident” policy. The policy required employees to disclose any dependence or addiction issues before a drug-related incident occurred. If they did, they would be offered treatment. If they failed to disclose such issues, and were involved in an incident and tested positive for drugs, their employment would be terminated.

The employee admitted he was aware of the policy, but stated he had been in denial about his addiction prior to the incident. His denial, however, was “irrelevant” in this case. While acknowledging that employee misconduct can, “in some circumstances”, be a symptom of an addiction or disability, the majority of the Supreme Court of Canada held that Mr. Stewart had the ability to decide not take drugs before working and had the capacity to disclose his drug use to his employer. Thus, the employer’s decision to terminate Mr. Stewart’s employment for failing to disclose his cocaine use prior to the incident did not constitute discrimination under human rights legislation.

Importantly, the majority of the Supreme Court concluded that it cannot be assumed that an addiction will diminish an employee’s ability to comply with the terms of a workplace policy addressing substance use:

In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive a person of the capacity to comply, and the breach of the rule will be inextricably connected with the addiction. Many cases may exist somewhere between these two extremes.

This decision highlights the importance of having a policy in place to address substance abuse in the workplace and the expectations for employees. Such policies should be clearly communicated to employees, provide options for accommodation of disability, and emphasize workplace safety as the key objective.

When making decisions to terminate or impose discipline following a breach of the policy, employers must consider the individual circumstances of each employee in question.

This article was provided by Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.

go2HR is BC’s tourism and hospitality, human resources and health & safety association, driving strong workforces and safe workplaces that deliver world-class tourism and hospitality experiences in British Columbia. Follow us on LinkedIn or reach out to our team.

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