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Ontario Erectors Association

Airtight Drug And Alcohol Policies Can Protect Employers In Safety-Sensitive Work Environments From Possible Discrimination Claims

A recent decision from the Supreme Court of Canada (“SCC”) has ended a lengthy saga and is good news for employers wishing to enforce drug- and alcohol-related policies in safety-sensitive work environments (note that the Construction industry has long been considered a “safety sensitive work environment”).  A summary of the case follows:

In Stewart v. Elk Valley Coal Corp., a majority of the SCC upheld the decision of the Alberta Court of Appeal, which concluded that the Alberta Human Rights Tribunal’s decision was reasonable in determining that an employee was terminated for breaching the company’s drug and alcohol policy and not because of his cocaine addiction.


Stewart was an employee who drove a loader in a mine operated by Elk Valley Coal Corp. He tested positive for the presence of cocaine after a collision on the worksite and subsequently informed his employer that he thought he was addicted to the substance. His employment was then terminated.


The company had a “no free accident” rule as part of their Alcohol, Illegal Drugs & Medication Policy (the “Policy”), which was aimed at ensuring safety in the mine. Employees were required to disclose any dependencies or addictions prior to the occurrence of a related incident in order to obtain treatment before their issues compromised workplace safety. If they failed to do so, and tested positive for the presence of drugs after being involved in an accident, they would be terminated.


The Alberta Human Rights Tribunal held that Stewart was terminated not because of his addiction, but for breaching the Policy. In the decision, the Tribunal accepted the settled two-part test for discrimination in the workplace, which requires the employee to first establish a prima facie case of discrimination by showing: (1) a disability which is protected under the Act; (2) adverse treatment with regard to his employment or a term of that employment; and (3) that the disability was a factor in the adverse treatment. If this is established, the onus then shifts to the employer to show that it accommodated the employee to the point of undue hardship. It was found through expert evidence that Stewart was in fact addicted to drugs; however, this was not a factor in the termination as the company’s decision fell on his failure to comply with the Policy, which he had capacity to abide by. The Tribunal’s decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal.


The SCC also found no basis to interfere with the reasonable conclusion of the Tribunal. The Court held that there was clear evidence capable of supporting the Tribunal’s conclusion that the reason for the termination was not addiction, but breach of the Policy. Stewart argued that the addiction was an indirect factor in the termination as denial was part of the addiction, preventing him from disclosing it prior to the accident. The Court held that on the evidence, Stewart was aware that he should not take drugs before working and he had the capacity to make this decision as well as to disclose his problem to his employer. Therefore, prima facie discrimination was not established and it was unnecessary to consider whether the appellant had been reasonably accommodated.


This is good news for employers because the decision demonstrates that a reasonable, well-drafted drug and alcohol policy can protect employers from certain claims of discrimination related to the protection of safety in dangerous workplaces. Remember that the key to any Employer policy is that (1) it is always applied in a consistent fashion, (2) does not violate any specific terms of the CBA and most importantly, (3) all employees are aware of the policy prior to its implementation.




Peter Wightman