Alberta decision reaffirms limits of employer responsibilities around accommodations
A recent decision by the Alberta Court of King’s Bench (ABKB) has reaffirmed the limits of employer responsibilities when it comes to accommodations for employees with substance abuse challenges.
The decision, NOV Enerflow ULC v Maude, 2024, saw a 2019 Alberta Human Rights Tribunal (HRT) decision reversed. It involved an employee who alleged his employer had discriminated against him due to a substance use disorder and was awarded $25,000 by the Tribunal.
The ABKB judge found that the Tribunal chair erred in her decision, stating the employee had “stymied” attempts to accommodate him by his refusal to provide medical information.
“When an employee is coming to them asking for an accommodation, employers do have a right to seek out appropriate medical documentation and support for that accommodation request,” says Jill Wilkie, partner at Miller Thomson in Calgary.
“If the employee is unwilling to give that information due to privacy concerns or otherwise, then that's going to have a negative impact on the employment relationship.”
Employee refused to provide evidence for substance abuse treatment plan
In March 2016, the employee, a Journeyman Millwright Assembler in a safety-sensitive role at NOV Enerflow ULC, tested non-negative for cocaine during a random drug test and was immediately taken off work duty without pay.
He was referred by Enerflow to see a Substance Abuse Professional (SAP) through third-party LifeWorks, for an assessment which, according to court documents, took approximately one hour. The SAP reported that the employee was “at risk of a severe substance use disorder for alcohol and cocaine” and recommended, among other things, a residential treatment program.
The employee denied that he had a substance use disorder, and after consultation with Alberta Health Services (AHS) counsellors, conveyed that a residential treatment plan was unnecessary, but that he was willing to comply. He did however ask if an outpatient treatment program would suffice, an alternative he said was supported by AHS. That request was denied because the employee refused to sign a consent form which would have allowed LifeWorks to communicate with AHS.
It was then that the employee filed a human rights complaint, submitting that he did not have a substance abuse disorder, and that the manner in which the employer implemented its drug and alcohol policy amounted to discrimination, as was the general way he was treated.
The HRT agreed with him – a ruling which this decision, NOV Enerflow ULC v Maude, 2024 ABKB, has now reversed.
Employee accommodations for substance use ‘two-way street’
The HRT chair confirmed that it had been incumbent on the employee to provide evidence as to how he could have been accommodated by the employer, if not by the recommended course. In her decision, the HRT chair had decided – without evidence, the AKBK noted – that the failure by the employer to approve alternative treatment without a statement from a mental health professional was discriminatory due to the employee’s substance use.
“It was not appropriate for the chairperson to conclude, on her own, that a day treatment program was an alternative which NOV should have accepted,” the ABKB stated in its appeal decision.
It was noted in the HRT decision that the employee had been confronted with obstacles to attending a residential treatment program – namely, that he did not believe he had a disorder, but also that the cost was prohibitive. He applied for funding through Enerflow’s short-term disability program but was denied funding – he testified to the Tribunal that he was told he wouldn’t qualify for funding until he was accepted into the program.
However, the employee also did not provide any evidence in the form of expert testimonies that a day program (or any other alternative program) would be suitable, the AKBK noted.
“Accommodation is a two-way street. There is supposed to be participation by all players in the process – employer, union, employees,” Wilkie says. “There also is a right that employers have to seek out appropriate information in support of an employee's accommodation request.”
Employee privacy concerns no excuse to avoid providing medical info
Throughout the process, the employee maintained that he did not use drugs or alcohol during work hours, which was not disputed during either trial; however, it was submitted by his supervisor that he would occasionally call in to request days off or ask to leave early so he could “get a head start on the weekend.”
It was also noted that the employee had no record of any behavioural or performance issues. He testified that he had privacy concerns about submitting to the requests from the employer’s policies, but this was not a major issue in the decision.
“We see that happen from time to time, where the accommodation process almost gets interrupted because the employee doesn't feel comfortable signing a particular release of information document, and they often will cite privacy grounds,” says Wilkie.
“That's fair, the employee can decide to do that — but that's going to come with consequences. Because you really need to be sending along the information that the employer needs to be able to make accommodation decisions.”
Well-defined policies for employee substance use disorder accommodations
The ABKB decided in favour of Enerflow, finding there was no discrimination, and that it had met the good faith requirement for accommodation and that in view of the safety element of the employee’s role, they were forced to rely on the only medical recommendation they were provided, that of the SAP.
Since the employee had “blocked any such conversation” about alternatives, the court stated, “the chairperson has made an error of mixed fact and law by reaching a conclusion not based on the evidence. There was a palpable and overriding error.”
The court also commended the employer’s “comprehensive” substance and alcohol use policies, which it had followed to the letter.
“It's good to have a well-defined policy in place that sets out when you can test, what you're to do with the test results, and then what the impacts are for the employees and the employment relationship,” says Wilkie.
“If you have that policy in place, and you're following that policy, then that's going to help alleviate any worries that employers have in these situations.”
