Does the duty to accommodate depend on disclosure?

Rhéaume Perreault, CRIA, Adm. A. and Michael Adams
Fasken Martineau DuMoulin

Have you updated your policies on alcohol and drug use recently? With the recent decision of the Supreme Court of Canada in Stewart v. Elk Valley Coal Corp.,1 this would be the ideal time to do it. In that decision, the Supreme Court discusses the impact of a policy in force requiring employees to report their drug and alcohol dependence to their employer when an employee is dismissed for reasons relating to drug dependence. More specifically, the Court had to decide whether dismissing an employee as a result of a workplace accident when he was under the influence of cocaine was discriminatory. 

1.    Facts
Elk Valley Coal Corporation (the “Employer”) is a mining company. As we might expect, working conditions inside a mine are objectively dangerous. To ensure safety and prevent accidents in the mine where the employee in question worked, the Employer adopted a policy requiring employees to disclose their dependence on drugs, alcohol or other substances (the “Policy”). Under the Policy, any employee who disclosed a dependence would be offered treatment. The Policy clearly stated that if an accident occurred and the employee involved failed a drug test, the employee would be terminated.

After the Policy came into effect, a truck driver (the “Employee”) was involved in an accident with his truck. He was then tested for drugs and failed the test, which showed that he had cocaine in his system. The Employee then disclosed that he was addicted to cocaine. 

The Employer applied the Policy and terminated the Employee because he had not disclosed his dependence before the incident occurred. The Employee contested the termination by making a complaint to the Alberta Human Rights Tribunal (the “Tribunal”), alleging that the decision was discriminatory because he had a disability, his dependence on cocaine.

2.    Prior decisions
The Tribunal dismissed the complaint, explaining that the Employer had adopted the Policy in good faith and that, in the circumstances, it was necessary to apply it. The Tribunal added:

If the [employer] had to offer the opportunity for assessment to Mr. Stewart or replace the harsher and immediate effects of termination of employment with less serious consequences, the deterrent effect of the Policy would be significantly lessened, and constitute an undue hardship to the company, given the [employer]’s safety responsibilities.2

The Court of Appeal affirmed the Tribunal’s decision, explaining that the Employee was dismissed not because of his dependence, but because he had violated the Policy.

3.    Decision of the Supreme Court
The Supreme Court upheld lower court decisions. Specifically, the Court held that there was no prima facie discrimination involved in terminating the Employee. The Employer gave the Employee an opportunity to disclose his dependence before an accident happened and offers treatment for all employees who disclose that they have a dependence. Notwithstanding that offer, the Employee decided not to disclose his dependence and therefore had to suffer the consequences. On that point, the Court wrote:

[35] It is clear that there was evidence capable of supporting the Tribunal’s conclusion that the reason for the termination was not addiction, but breach of the Policy. On the facts of this case, the Tribunal concluded that Mr. Stewart had the capacity to comply with the terms of the Policy. It was therefore not unreasonable for the Tribunal to conclude that there was no prima facie discrimination in this case. Mr. Stewart makes two arguments in his attempt to overturn the Tribunal’s factual findings.

Since the Court determined that there was no prima facie discrimination, the Employer did not have a duty to accommodate the Employee because of his disability.

This decision has not yet been cited by the courts in Quebec. However, similar issues arose in the recent decision in ArcelorMittal Mines Canada and Syndicat des métallos, section locale 6869 (M. X).3 In that case, ArcelorMittal had terminated an employee for driving a truck under the influence of cocaine. To accommodate the employee, the employer had him sign a last chance agreement in which he agreed not to come to work under the influence of drugs. The employee did not abide by the agreement and so the employer dismissed him. The employee filed a grievance contesting his termination, but the arbitrator ultimately dismissed the grievance since [TRANSLATION] “the employer’s duty of reasonable accommodation had reached its limit.”4 The question that arises is: if ArcelorMittal Mines had adopted a policy similar to the Policy, would it have had to take that step before permanently terminating the employee? In light of the Supreme Court’s decision, it seems that the answer might well be No.

4.    Conclusion
Having regard to the foregoing, we suggest that employers amend their internal policy and provide that all employees have an obligation to disclose to Human Resources if they have a dependency on drugs, alcohol or other substances.  

Rhéaume Perreault

Me Rhéaume Perreault

Rhéaume Perreault is recognized as one of the best labour and employment lawyers by Woodward /White's Best Lawyers in Canada directory for several years. He holds a degreein law from the Université du Québec à Montréal. He also holds a Bachelor'sdegree in industrial relations from the Université de Montréal.

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