When a zero-tolerance policy for drugs and alcohol comes to an accomodation with the CharterBy Laurence Laroche Lawyer
A recent decision1 by Canada's highest court sheds light on the validity of zero-tolerance workplace drug and alcohol policies.
Before the Supreme Court, an employee, Mr. Stewart, challenged his dismissal, arguing that it was discriminatory. The dismissal was based on the application of his employer's policy whereby employees were obligated to disclose any addiction issues. Indeed, an employee who failed to disclose the information and was involved in an accident and tested positive for drugs would be terminated. This is exactly what happened to Mr. Stewart.
The motives that encourage an employer to adopt this type of policy are entirely laudable. These policies generally aim to prevent employees from engaging in activities whose negative impacts are manifest and especially provide all employees with a safe work environment. However, it is important to remember that a substance abuse problem is considered a disability under section 10 of the Charter of Human Rights and Freedoms (the "Québec Charter"), which is prohibited grounds of discrimination. A zero-tolerance drug and alcohol policy may therefore prove discriminatory to individuals with an addiction problem.
For the Supreme Court to rule in his favour, Mr. Stewart had to prove three things: that he suffered from a disability, that he had been treated unfairly and that his disability was a factor in the unfair treatment he received.
There was no doubt with regard to the first two elements. In the eyes of the Court, a substance abuse problem was a disability and Mr. Stewart's dismissal constituted unfair treatment. However, the Court held that Mr. Stewart had not been dismissed for his addiction but rather because he failed to comply with the policy under which he had to disclose or end his drug use. The Court therefore upheld Mr. Stewart's dismissal and also the validity of the policy that supported the dismissal.
At first glance, the Supreme Court's findings may be difficult to grasp. How could the Court determine that Mr. Stewart's drug use did not constitute an underlying factor of his dismissal, which stems from the application of a policy that specifically targets drug use?
The Court notes that the expert evidence showed that the degree of Mr. Stewart's drug addiction did not affect his ability to comply with the policy, which required him to disclose or put an end to his addiction. Mr. Stewart made a conscious choice not to comply with the policy, even though his addiction did not prevent him from doing so. The Supreme Court therefore concluded that Mr. Stewart's addiction could not constitute the cause of his dismissal.
In this regard, it is important to note that an employer cannot always not take cover behind the application of a zero-tolerance policy to justify a dismissal. An employee may indeed be unable to comply with a drug policy due to an addiction, which would then constitute a disability. Because of this disability, the employee would not have control over his or her choice to comply with the policy or not. In these circumstances, an automatic dismissal for failing to comply with the policy may be deemed discriminatory.
We should further recall that, when an employee is able to prove that his or her disability was a factor in a dismissal, the employer must then demonstrate that its drug and alcohol policy was implemented in good faith and for a purpose that is rationally related to work. The employer must also show that it has fulfilled its obligation to provide the employee with reasonable accommodation and that it cannot provide the employee with further accommodation without incurring undue hardship.
 The legality of a dismissal imposed under a drug policy was brought before the Supreme Court in Stewart v. Elk Valley Coal Corp. (2017 SCC 30)