Alberta worker's denial that he had a drug-related disability didn't exclude him from discrimination protection: Tribunal
An Alberta company discriminated against a worker after instituting an assessment and treatment protocol following a “non-negative” drug test — even though the worker denied he had a disability related to drug addiction.
The worker was a millwright assembler with NOV Enerflow ULC, a manufacturer of equipment for the energy industry based in Calgary. He was hired in 2010.
The worker enjoyed drinking alcohol and using drugs in his spare time, but he was conscious of the fact that his job was safety sensitive. He restricted his drug and alcohol use to mostly Fridays and sometimes Saturdays so he could recover in time to work on Mondays.
Enerflow’s drug and alcohol policy stipulated that a positive test result would result in the employee being removed from duty and suspended without pay, and then directed to a substance abuse professional (SAP) for assessment. The SAP’s recommendations would be considered in determining discipline and other responses by the company.
Company followed protocol in drug and alcohol policy
On March 15, 2016, the worker took a random drug test at Enerflow’s request. One week later, the company informed him that he had tested “non-negative” for cocaine. The company prohibited him from “returning to the full duties of your current position until the conditions as outlined in the drug and alcohol policy testing and search policy have been met.” It also stipulated that he could only return to work after providing a negative drug screen and positive assessment from a substance abuse professional and a mandatory referral to the employee assistance program provider.
An SAP assessed the worker and concluded he was at risk of a severe substance use disorder for alcohol and cocaine. The worker disputed this, saying the SAP misunderstood information and the amount of cocaine and alcohol he had consumed recently hadn’t been recorded correctly. He also complained that the SAP had a background in counselling, not diagnosis, even though the drug and alcohol policy stated the SAP “must have knowledge of and clinical experience in the diagnosis and treatment of alcohol, drugs, and related disorders.”
The SAP recommended the worker attend a residential treatment program. The worker denied he had a disorder, but he agreed to the treatment program. However, the program rejected his application and he asked Enerflow if an outpatient program would satisfy the requirements for returning to work. Enerflow said it would not, so the worker filed a human rights complaint, arguing that he didn’t have a disability and that Enerflow’s implementation of its drug and alcohol policy and treatment of him was discrimination. Enerflow eventually returned the worker to his position 16 months after he was suspended.
The Alberta Human Rights Tribunal found that Enerflow indicated to the worker that he had a “non-negative” test, but this wording wasn’t defined in the policy — only positive or negative tests. In addition, Enerflow was unable to show that a non-negative result was either confirmed positive or indicative of impairment that could create a safety risk. Without confirmation of an actual positive test, the tribunal found Enerflow didn’t comply with its own policy.
The tribunal also found that there was uncertainty in the SAP’s assessment from the worker’s concern information wasn’t recorded correctly and the worker continued to maintain he didn’t have a problem. However, Enerflow didn’t proceed with a second assessment.
Denial of disability doesn’t preclude discrimination
Although Enerflow argued that the worker’s denial of a disability precluded human rights protection, the tribunal disagreed, finding that the Constitution Act protects “any person” from discrimination because of disability. In addition, Enerflow determined that the worker had a disability that is protected under human rights legislation.
The tribunal also found that the worker suffered an adverse impact — the loss of income from his removal from work — that was related to the prohibited ground of discrimination. These factors together established prima facie discrimination, said the tribunal.
With a finding of prima facie discrimination, Enerflow had to establish it implemented its standard in an honest and good-faith belief that it was necessary for workplace safety. However, the tribunal found that its use of the term “non-negative” for the test — not contemplated in the drug and alcohol policy — showed a lack of openness and questioned the company’s motives, as well as Enerflow’s failure to consider outpatient treatment or use an SAP with diagnostic qualifications, as contemplated in the policy.
The tribunal determined that Enerflow didn’t make an effort to accommodate the worker and offered no evidence it would have been undue hardship to permit him to attend outpatient treatment — commenting that the worker’s denial of a disorder may have been the basis for the rejection of his application to the residential treatment program. Enerflow’s insistence that the worker comply with its “preferred form of treatment (which is not available) was not reasonably necessary to the fulfillment of safe work performance,” the tribunal said.
“In my view, immediate implementation of an outpatient program would have been a reasonable accommodation in the face of this complainant’s repeated communications that he did not have a disorder,” said the tribunal. “The delay prior to the eventual return to work is attributable to [Enerflow’s] insistence that only residential treatment was acceptable.”
Enerflow was ordered to compensate the worker for 16 months’ wages and overtime — the period of time from when he was removed from work to the date he was returned to work.
For more information, see:
- Maude v. NOV Enerflow ULC, 2019 AHRC 54 (Alta. Human Rights. Trib.).
