Northern Exposure

‘But it was due to my addiction’—when is last-minute confession too late?

By Kyla Stott-Jess

It is not uncommon for an employee to disclose an addiction only when being terminated for misconduct that may be related to the employee’s substance abuse. The employee then tries to trigger human rights protections due to his or her “disability.” A recent Alberta court decision, Bish v. Elk Valley Coal Corporation, provides a good example of when such a claim may simply be too little, too late, even under Canada’s protective human rights laws.

Disability protections under Canadian human rights laws

Employees across Canada are protected against discrimination on the grounds of disability. A serious addiction is generally considered to be a disability. Employers therefore cannot terminate employees merely because they have an addiction.

Many employers have policies under which employees can voluntarily disclose and seek treatment for addiction issues, without risk. Canadian employers are much more limited than those in the USA with respect to broad screening programs.

The problem arises when employees disclose addiction only after a workplace accident.

Alberta Human Rights Commission decision

In 2005, Elk Valley Coal Corporation introduced a new policy about drug and alcohol use. Employees who voluntarily disclosed dependency or addiction issues before a work-related incident would be provided with rehabilitation assistance as well as protection from discipline. Employees who disclosed only after a workplace incident would not be afforded the same protections or treatment options. Ian Stewart, an Elk Valley employee, attended a training session on the policy and signed a form indicating he understood it.

In October 2005, Stewart was involved in a workplace vehicle collision. His post-incident drug test came back positive for cocaine. Stewart then admitted to recreational use of cocaine on his days off, but maintained that he did not have a drug problem. That was his position until he was terminated.

After his termination, Stewart said he had an addiction. His union filed a human rights complaint on his behalf. It alleged that the termination amounted to discrimination on the grounds of disability.

The Alberta Human Rights Tribunal dismissed Stewart’s complaint. It found that there was no discrimination. Although the tribunal recognized that Stewart had a disability, it found that he was in control of his addiction to an extent that he could have complied with the company’s policy. It found that Stewart was not terminated because of his disability.

Further, the tribunal noted that even if it had found there to be a prima facie case of discrimination, the termination was justified as there was a need for strict deterrence in the safety-sensitive environment at the Elk Valley mine. Discipline short of termination would have encouraged other employees to delay reporting drug use issues until they too were faced with termination.

Appeal to Alberta Court of Queen’s Bench

The court upheld the tribunal’s decision. It ruled that there was no causal connection between the disability and the termination. A “mere addiction to cocaine—taken together with the undisputed evidence that the employee had ample control over the addiction” could not support a conclusion that the employee was terminated for his disability. Rather, the court agreed with the tribunal’s finding that the employee was terminated for his failure to follow the policy.

In addition, the court ruled that the fact the employee was in denial about his drug addiction at the time of the incident did not alter the conclusion. It said, “the mere presence of an addiction which had not been identified by anyone at the time of the accident fails to elevate [the termination] to prima facie discrimination in law.”

Lessons for employers

This case is very employer-friendly. Although the court recognized that the employee was likely suffering from an addiction disability, it refused to find that this disability was the cause for termination. Rather, termination stemmed from the employee’s failure to follow the policy.

Depending on the wording of their own drug and alcohol policies, employers may be able to rely on this decision as support for the idea that terminations in similar situations are not discriminatory.

Employers should remain aware, however, of the particular facts of this case before relying on it too heavily. Of particular note, important elements here included:

• The company’s policy expressly stated the potentially serious consequences of failing to disclose addiction issues until after an incident;
• The employee attended training on and confirmed his understanding of the policy;
• The employee held a safety-sensitive position; and
• The employee continued to deny addiction issues until he was terminated.

Stay tuned for further updates. This case is being appealed. Look for a future clarification from the Alberta Court of Appeal.

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