Discipline or dismissal for failure to follow policy
Question: If an employer with a safety sensitive workplace requires employees to disclose prescription medications they are taking, can it be cause for dismissal if an employee doesn't comply? If an employee says he is abusing his medication after being discovered, does the employer have to accommodate?
Answer: A policy requiring all employees to disclose any prescription medications they are taking or face termination if they fail to do so, will be difficult to enforce unless it sets some specific parameters. A zero-tolerance drug and alcohol policy requiring disclosure of all prescriptions by all employees would likely be considered too broad. Again, the concern underlying these policies is that certain prescriptions can seriously impair a worker’s ability to perform their duties safely and at an acceptable standard. Thus, an employee who fails to disclose a prescription that does not have any impairing effects would most likely have a sound basis to dispute any termination flowing from their failure to disclose. So too would an employee who does not actually work in a safety-sensitive position, notwithstanding that the employee is working in a safety-sensitive industry.
Where a position is indeed safety sensitive, a policy requiring employees to disclose medications or substances that they are taking that could impair their ability to work safely would be reasonable provided that certain factors are taken into account. First, this type of zero-tolerance policy will need to be limited to medications and substances that could cause impairment. For example, a policy could capture over-the-counter medications, prescription medications, medical marijuana, and other substances that may impair a worker’s ability to perform his duties adequately and safely.
Just as the policy would need to be specific to medications and other substances that impair, it will also need to be specific to those employees who actually work in safety sensitive positions. It may be that the employer works in a safety sensitive industry (such as mining), but that does not mean every single employee in that workplace is actually working in a safety sensitive position. As such, termination of an administrative assistant for failing to self-disclose would be difficult to justify compared with termination of an equipment operator who fails to self-disclose, even if both employees are working in a safety sensitive industry.
In the context of a discrimination complaint, the ultimate question is whether the employee was terminated for breaching the employer’s policy for failing to self-disclose, or whether the employee was terminated because of his disability.
If an employee was fully capable of self-disclosing a substance use disorder, but only self-disclosed when he was discovered to be taking an impairing medication or substance, an employer should be entitled to rely on the policy to justify termination provided that certain factors are taken into account. To reduce the risk of a zero-tolerance policy contravening human rights requirements, that policy should contemplate the duty to accommodate. However, the duty to accommodate is not one that the employer must bear alone. It is therefore reasonable for an accommodation policy and/or drug and alcohol policy to require an employee working in a safety sensitive industry to disclose medications taken in the course of treatment that pose a risk of impairment.
The same positive obligation applies to employees who may be suffering from substance abuse disorders. Recently, the Supreme Court of Canada in Stewart v. Elk Valley Coal Corp. considered the termination of an Alberta worker in a safety sensitive environment for failure to report a relapse as required by the employer’s policy. The court held that since the worker was fully capable of reporting a relapse, his termination was as a result of his failure to abide by the self-disclosure policy rather than the worker’s substance use disorder. However, the court did not completely shut the door on the issue and acknowledged that there may be situations where the substance abuse disorder prevents an employee from self-disclosing. An employer will therefore want to ensure it has carefully investigated the matter before pulling the plug on the employment relationship.
Finally, as with the introduction of any zero-tolerance policy, employers will want to ensure that they educate their employees on that policy. Where the consequence for failing to comply is termination, a judge or adjudicator will want to be certain that the employee was fully aware of the expectation set out in the policy and his employment would be in jeopardy if he was to breach its terms. Employers are well advised to provide training sessions to educate employees on the policy and to have them sign off on the policy. Given the severe nature of a zero-tolerance policy, it would also be beneficial to have periodic refreshers on the policy.
For more information see:
• Stewart v. Elk Valley Coal Corp., 2015 CarswellAlta 1190 (Alta. C.A.).
Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975-7144 or [email protected]