Much has been written recently on workplace drug abuse, given the legalization of cannabis in Canada for recreational use.
There is, however, no doubt that the employer may prohibit the use of cannabis in an employment setting, with exceptions for legitimate medical use. With respect to the latter issue, there is also no question that the employer may impose reasonable controls as to how and where the user may consume and store the drug. Likely this will include a ban on edibles, give the inability of the employer to monitor the consumption of these products.
Workplace Policy on Drugs
The leading case on this topic was delivered by the Supreme Court of Canada two years ago. The employer coal mine had enacted a policy that required employees to disclose any dependence on alcohol or drugs. Should the employee do so, they were then offered treatment. Should they fail to disclose this condition and an accident followed, and they tested positive for drug use, the employee would be immediately terminated. This was referred to as the “no free accident” rule.
This case was brought before the Alberta Human Rights Tribunal which concluded that this policy did not create a prima facie case for discrimination.
Ultimately the case came to the Supreme Court of Canada. The majority decision upheld the Tribunal’s view.
Two of the judges wrote “concurring reasons” which meant that they came to the same decision to uphold the decision but for different reasons. These justices felt that there was a prima facie case of discrimination shown by the policy, which then required the employer to accommodate the addictive disability, which was then found to have been accomplished by the company via the offer for treatment.
There was one dissenting opinion which found in favour of the employee.
Addiction Issues at Work
The Tribunal had found that the reason for termination was not an addiction to cocaine but rather because the employee had failed to disclose his drug use when offered the opportunity to do so. It was this aspect of the decision with which the majority of the Supreme Court agreed.
In this case, the employee would have been fired whether he was an occasional user or an addict.
Importantly, the SCC also considered the employee’s rebuttal that “a symptom of addiction is denial” and hence it casts an unreasonable burden on an addict to disclose. To this question, the SCC majority stated that this evidence cannot be presumed, it must be proven by real affirmative evidence. In this case, there was no such evidence led by the employee.
The two concurring justices looked at this issue differently. They concluded that the employee’s control over his drug use reduced the extent to which his dependency contributed to his termination. The employee demonstrated a prima facie case as he had only to show his addition was a contributing factor, which was then shown.
Health and Safety May Have Been a Determining Factor
Without a doubt in an industrial workplace, as in this case, drug addiction is a serious issue. This zero-tolerance policy was upheld, certainly. The case does encourage employees to be forthright when given the opportunity to do so.
The issue, however, is not as clear cut as one might expect. Had the employee led evidence as to why he was unable, because of his addiction, to disclose his cocaine use, the case may well have taken a different turn. A decision on this point to the employee’s favour would then have led to a consideration of the accommodation issue, one which would have involved the question of the industrial context and the need for safety in this particular work setting.
Accommodation and Disclosure
Clearly management is encouraged to implement such a zero or close to zero drug tolerance policy. All roads lead to this conclusion. However, as demonstrated in the case at hand, employers will also be required to provide accommodations in situations where an employee discloses a substance abuse issue. For employees, full disclosure is the key to protection from termination and absent this, medical evidence as to why this was lacking will be needed.
Get Advice and Know Your Rights
This is a complex issue. Both sides to the issue need clear and concrete advice. For advice on drug use policies in the workplace, and indeed, on and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
Return to Blog →