A recent Alberta Court of Appeal decision sheds light on the interaction between human rights, addiction, and health and safety.
The Alberta Court of Appeal upheld the termination for cause of an employee who suffered from an addition to cocaine.
In that case, the employer had a policy in place where an employee could disclose his or her addiction before a “significant event,” like a workplace accident, and he would not suffer any disciplinary repercussions. The employee in question, had not disclosed his addiction under the workplace policy. The employee was then involved in an at-fault accident connected to his consumption of narcotics and was terminated for cause. He claimed that there was discrimination in his termination because his addiction prevented him for disclosing his disability.
The Alberta Court of Appeal rejected the lower decision and found that the employee was not fired because of his disability (his addiction) but rather because of his refusal to disclose his addiction before the incident occurred.
Duty to Accommodate and Undue Hardship
The Human Rights Tribunal of Ontario has recognized both drug and alcohol addiction as disabilities under the Human Rights Code.
Where an employee suffers from a disability, an employer has a duty to accommodate that employee to the point of ‘undue hardship.’ In Ontario, the courts or Tribunal can consider three areas any assessing undue hardship. The first two are (i) cost and (ii) outside sources of funding, if any. The final consideration (which was used in the Alberta Court of Appeal’s decision) are health and safety requirements.
We see many employees who use drugs and alcohol and have questions about how that drug use may affect their employment. While the Alberta Human Rights Act differs slightly from the Ontario Code, the Alberta decision highlights the importance for employees who use drugs and alcohol or who suffer from addiction, to seek both legal as well as medical advice if they have concerns about the impact on their work. Had the employee in this case known about his legal rights, he may have been able to seek accommodation from his employer, or put his employer on notice of his disability – possibly preventing his ultimate termination.
If you have experienced discrimination at work because of an addiction or or disability or are facing drug and alcohol testing at work, please contact us at [email protected] or 1-888-640-1728 (toll free) or 647-633-9894 (within the GTA).
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