If an employee, who is addicted to drugs, violates an alcohol and drug policy at work, can the employee be fired? That was the issue for the Supreme Court of Canada in Stewart v. Elk Valley Coal Corp., 2017 SCC 30.
Typically, our advice is to tread carefully in such situations. A drug or alcohol addiction is a disability under Ontario’s Human Rights Code. As such, a drug or alcohol addiction cannot be a factor that leads to discipline or other adverse consequences. The Supreme Court of Canada, however, upheld the termination of a drug-addicted employee who violated his employer’s drug and alcohol policy. In the Supreme Court of Canada’s opinion, this termination was not discriminatory.
In this case, the employee worked in a mine operated by the employer. The work was dangerous and the employer implemented a drug and alcohol policy in order to keep workers safe. As part of the policy, employees were required to disclose any dependence or addiction issues. If they did, they would be offered treatment, not discipline. If they did not disclose but were later involved in a workplace accident and tested positive for drugs/alcohol, the policy stipulated that the employee would be terminated.
The employee in this case used cocaine on a regular basis but never disclosed the fact to the employer. When he was involved in a workplace accident and later tested positive for drugs, he was terminated.
The Alberta Human Rights Tribunal dismissed the human rights application holding that “the Policy as applied to Mr. Stewart… was not applied due to his disability, but rather because of his failure to stop using drugs and failing to disclose his drug use prior to the accident.” In this respect, the title to this blog is somewhat misleading. The Tribunal’s position was that Mr. Stewart was not terminated for drugs but rather for violating the policy.
The Supreme Court of Canada upheld the Tribunal’s decision as reasonable. Chief Justice McLachlin, in her reasons, provided the following helpful comments.
 Where, as here, a tribunal concludes that the cause of the termination was the breach of a workplace policy or some other conduct attracting discipline, the mere existence of addiction does not establish prima facie discrimination. If an employee fails to comply with a workplace policy for a reason related to addiction, the employer would be unable to sanction him in any way, without potentially violating human rights legislation.
 It is, of course, open to a tribunal to find that an addiction was a factor in an adverse distinction, where the evidence supports such a finding. The question, at base, is whether at least one of the reasons for the adverse treatment was the employee’s addiction.
While our advice continues to be to tread carefully in these situations, this Supreme Court of Canada decision is one that will assist employers in determining the proper course of action when faced with a disciplinary decision regarding an employee with a disability.