On June 15, 2017, the Supreme Court of Canada dismissed an appeal in a case involving an Alberta worker who was fired by a mining company after testing positive for drug use. In an 8–1 ruling, the court said the Alberta Human Rights Tribunal was right to conclude that the man was fired for breaching the company’s drug policy, not because of his addiction. Moreover, the Supreme Court of Canada found the employer didn’t fire the employee for the addiction to drugs, but for breaching the employer’s drug policy to self‐report his drug use.
Chief Justice Beverley McLachlin said that while the employee may have been in denial about his addiction, he knew he should not have taken drugs before work and had the capacity to disclose his drug use to his employer.
In a dissenting opinion, Justice Clement Gascon said the employee, Ian Stewart, was terminated for giving in to his drug dependence and did not receive reasonable accommodation from the company.
We previously wrote about this case and you can read an in-depth case commentary here.
What does this mean for employers?
Supreme Court of Canada judgements usually create precedence, meaning that the legal principle coming out of this case can be applied across Canada, not just in Alberta.
Also, the case shows us that having a solid and reasonable alcohol and drug policy that achieves the goal it sets out to achieve while simultaneously respecting the human rights of employees is more likely to be found to be acceptable and not a human rights violation when a termination based on a breach of the policy occurs.
Furthermore, the employer’s policy and practices must address bona fide occupational requirements that constitute relevant reasonable accommodation for persons who are considered to have a disability in the form of an addiction or dependency with a nexus to those requirements.
Employers who need to implement alcohol and drug policy because of the nature of their business and to maintain workplace safety should implement an alcohol and drug policy that requires employees to self‐report drug use, be accommodated and receive treatment; and that failure to self‐report is a firing offence.
Most human rights legislation requires individualized or personalized accommodation measures when confronted with a disability such as substance dependence. This may include employers taking steps to adjust rules, policies or practices that have a negative impact on individuals or groups of individuals who are protected under human rights legislation. This is referred to as the duty to accommodate.