The Court of King’s Bench of Alberta has ruled that employees who suggest an alternative to an employer’s accommodation for substance abuse treatment must provide evidence that their proposal is an effective alternative to the employer’s recommendation.
“The decision confirms that an employee doesn’t get to dictate what form accommodation must take,” says Vicki Giles, an employment and labour partner at McLennan Ross LLP and who wasn’t involved in the case.
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Rather, the decision reinforces an employee’s obligation to “participate actively” in the accommodation process, says Loretta Bouwmeester, a workplace law partner at Mathews Dinsdale & Clark LLP and who was also not involved in the case.
“In so doing, the decision adds a sense of certainty in the highly contentious arena of substance abuse because although the specific situation that gave rise to the case occurs more often than people think it does, there isn’t a great deal of jurisprudence on the issue.”
Jon Maude held a safety-sensitive job in Calgary with NOV Enerflow ULC, a manufacturer of oilfield service equipment and controls. After testing ‘non-negative’ for cocaine following a screening pursuant to the company’s random drug and alcohol testing policy, he admitted to having used the drug.
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NOV suspended Maude and referred him to LifeWorks Inc. (now part of Telus Health) for an assessment by a substance abuse professional. The professional concluded that Maude suffered from moderate to severe substance abuse disorder for alcohol and cocaine and recommended that he attend a residential treatment program.
Maude, who denied having a substance abuse disorder, didn’t want to attend a residential treatment program. Instead, he consulted Alberta Health Services counsellors and advised LifeWorks that the counsellors supported his wish to attend a shorter outpatient program.
LifeWorks was prepared to consider the outpatient program as an alternative, but Maude refused to sign a consent form that would allow LifeWorks to communicate with Alberta Health Services. Maude didn’t participate in either program; instead, he filed a complaint with the Alberta Human Rights Commission alleging discrimination based on his substance abuse disability.
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The tribunal ruled in Maude’s favour and awarded damages. NOV appealed to the Court of King’s Bench, where Justice Robert Hall concluded that there was “no evidence that a day treatment program was an acceptable, effective alternative” and overturned the Commission’s finding of discrimination.
“In order to make out a case of discrimination, it was incumbent on Mr. Maude to put forth evidence as to how he could have been accommodated by NOV,” Hall wrote in his ruling. “He failed to do so. It was not appropriate for the [tribunal’s] Chairperson to conclude, on her own, that a day treatment program was an alternative which NOV should have accepted.”
The decision makes sense as it promotes a balanced and fair system that respects both employers’ and employees’ interests, says Bouwmeester.
“While employers dealing with accommodation issues must be open to considering all the information that’s available to them, including information from the employee, they do not have to rely on what amounts to nothing more than bald assertions. Here, NOV did the right thing by seeking more information, but the employee tied their hands by refusing consent that would have allowed LifeWorks to communicate with Alberta Health Services.”
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