What should an employer do when an employee who has failed a drug and alcohol test disagrees with the recommendations of the employer’s substance abuse professional? That was the question faced by the employer in NOV Enerflow ULC v Maude, 2024 ABKB 432, which was an appeal from a decision of the Alberta Human Rights Commission.[1]
Background
The employee, who occupied a safety-sensitive position, tested positive for cocaine during a random drug and alcohol test conducted pursuant to the employer’s drug and alcohol policy. In accordance with the policy, the employee was informed of the results, suspended from his duties and referred to a third-party company retained by the employer (LifeWorks) to undergo an assessment conducted by a substance abuse professional (SAP).
The SAP met with the employee and administered various standardized tests. She concluded that the employee met the criteria for a moderate to severe substance abuse disorder for alcohol and cocaine. LifeWorks informed the employee that the SAP made various recommendations for treatment, including that he attend a residential treatment program.
The employer required the employee to comply with all of the SAP’s recommendations for treatment before permitting the employee to return to work.
The employee did not believe that he had a substance use disorder and he did not want to attend a residential treatment program as recommended by the SAP and accepted by the employer.
The employee consulted Alberta Health Services counsellors (AHS) to discuss his situation. He then communicated to LifeWorks that AHS was supportive of his desire to attend a shorter outpatient treatment program, rather than the residential treatment program recommended by the SAP.
LifeWorks was prepared to engage in this discussion but required the employee to first sign a consent form allowing it to communicate with AHS. The employee did not sign the consent form, which had the effect of impeding any possibility of communication between AHS and LifeWorks. The employee never attended the recommended residential treatment program, nor an outpatient treatment program.
The discrimination complaint and the decision by the Alberta Human Rights Tribunal
The employee filed a complaint with the Alberta Human Rights Tribunal, alleging that his employer had discriminated against him by not allowing him to continue in his employment due to his disability (substance abuse disorder). He was successful before the Alberta Human Rights Tribunal, which awarded him CA$25,000.00 in damages for injury to his dignity and self-respect, as well as compensation for his lost wages, plus interest.[2]
The Tribunal Chairperson found fault with the employer because the employer “relied on” the SAP’s recommendation of residential treatment “as the only acceptable path forward.”[3] She made a determination that “[t]he facts themselves establish that attendance by the complainant at a residential treatment program was not required. The respondent [employer] gave no acceptable explanation for its refusal to consider the complainant’s [employee’s] suggestion of attending a day treatment program.”[4]
Appeal to the Court of King’s Bench
On appeal to the Court of King’s Bench, the Court found that the Alberta Human Rights Tribunal Chairperson made a palpable and overriding error in her decision because there was “no evidence that a day treatment program was an acceptable, effective alternative.” The employee had not provided any evidence to the employer at the time, nor to the Tribunal, that a day treatment program was an effective alternative to the residential program recommended by the SAP.
The employer agreed to the employee’s proposal that its agent, LifeWorks, communicate with AHS to discuss whether a day program would be an acceptable alternative to a residential treatment program. When the employee refused to sign the required consent form, he stymied the employer and LifeWorks from engaging in any further discussion to determine appropriate treatment recommendations.
The Court found that “[i]n 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. He failed to do so. It was not appropriate for the [Tribunal] Chairperson to conclude, on her own, that a day treatment program was an alternative which NOV should have accepted … there has been no discrimination made out against Mr. Maude.”
At the Tribunal hearing, the employee had not called any AHS personnel as witnesses, had not called any expert witnesses and had not called any substance abuse professionals to testify that a day program (or any other alternate treatment program) would have been an acceptable alternative. There was simply no medical or other evidence that established that a day program was an appropriate accommodation for the employee. The only evidence before the Tribunal that a day program may have been an acceptable alternative was that the employee testified that AHS had told him so.
Conclusion and takeaways
In conclusion, the employer, NOV, conducted itself properly in relation to the employee: it had a comprehensive policy on drug and alcohol testing, it retained an external consultant (LifeWorks) to assess employees who failed their testing and it relied upon LifeWorks’ regulated health professionals to make treatment recommendations. NOV did not interfere in those treatment recommendations, but rather remained open to receiving updated or alternate treatment recommendations from those regulated health professionals in order to comply with its accommodation obligations.
It is not unexpected that an employee may disagree with treatment recommendations following a substance abuse assessment, but it is incumbent on the employee seeking changes to those treatment recommendations to follow proper channels, including facilitating communications between their own health care professionals and the SAP retained by the employer. That did not occur in this case and as a result, the Court concluded that the employer had not discriminated against the employee in any manner.
When dealing with accommodation issues, an employee cannot simply refuse the recommendations of the employer’s health professionals for a treatment program the employee prefers. The employee must provide evidence from a medical or other professional that an alternative treatment program will satisfy the accommodation process.
Dentons represented NOV Enerflow ULC in this case. For any questions related to the legal implications of this decision on your business, please contact the authors, Tari Hiebert, Fausto Franceschi, KC and Cristina Wendel. Our Edmonton team will be pleased to assist you with all your legal needs in labour and employment, human rights and occupational health and safety in Alberta.
[1] This case was decided under the Alberta Human Rights Act, RSA 2000, c. A-25.2 as it stood in 2016. At that time, section 37(4) of the Act permitted a party to a proceeding before the Human Rights Tribunal to “appeal an order of the tribunal” to the Court. Section 37, which attracted the appellate standards of review, was later repealed. Currently, section 35 of the Act states that a decision of the Human Rights Tribunal is “final and binding on the parties, subject to a party’s right to judicial review of the decision.” Accordingly, applicants to the Court of King’s Bench should consider which standards of review apply to their matter, as this will depend on the date when the matter arose. See section 45.1 of the current Act, which addresses transitional provisions regarding the repeal of section 37.
[2] Maude v NOV Enerflow ULC, 2019 AHRC 54.
[3] See paragraph 19 of the ABKB decision, quoting the Tribunal decision at paragraph 61.
[4] See paragraph 20 of the ABKB decision, quoting the Tribunal decision at paragraph 65.
