Some recent court cases have made it easier for employers to terminate drug users who violate workplace drug and alcohol policies.
In a decision handed down on June 15, 2017 by the Supreme Court of Canada, an employer, Elk Valley Coal Corporation, was successful in a challenge by a dismissed employee. The employer had established an "Alcohol, Illegal Drugs and Medication Policy". There was a training session to explain the details to the employee. The employee, Ian Stewart, was a coal miner driver. Elk was concerned about the safety of its employees. The policy included a "No Free Accident" provision. In other words, if an employee failed to disclose a substance abuse dependency on illegal drugs and alcohol, prior to a workplace accident, he or she would be terminated immediately. If the employee did disclose a substance abuse dependence prior to an accident, the employer would fund the appropriate treatment. In this case, Stewart did not disclose an addiction to cocaine. He was then involved in an accident at work. He subsequently tested positive for cocaine and was fired. He applied to the Provincial Human Rights Commission, arguing that he was being discriminated against because of a disability (ie addiction to cocaine). The Court dealt with an appeal of the Commission decision. Essentially, the Court decided that Elk could dismiss Stewart, not for being addicted, but because he did not comply with the Policy.
On the issue of whether or not an employer has the right to implement random drug or alcohol testing, a recent decision of the Ontario Court of Appeal has given some guidance to employers and employees (and unions). The case involved a challenge of such testing by the Amalgamating Transit Union after the employer, Toronto Transit Commission, established such testing. The Court refused to award an injunction to stop the testing pending an arbitration decision on whether the testing policy was reasonable. Thus, the take away is that the policy should be reasonably tailored to the purpose of safety.
Michael Cobb is a lawyer at the law firm of Cobb & Jones LLP. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice. For more articles, visit the Library page at www.cobbjones.ca.