Employment & Labour

Opioid addiction recognized as disability under the Code

By Paul Russell, AdvocateDaily.com Contributor

Employers have to be mindful of their obligations under the Ontario Human Rights Code when terminating someone, even if it seems like a “slam-dunk cause case,” says Vaughan labour and employment lawyer Arthur Zeilikman.

“There always has to be a context-based analysis, where everything is taken into account, such as a disability. It’s not a mere question of an employee committing a wrongful act, and therefore you can just summarily terminate them,” says Zeilikman, principal of Zeilikman Law.

He cites a recent Ontario arbitration decision, involving a registered nurse who was fired in 2016 for theft and gross misconduct after she admitted to misappropriating narcotics for her own use and falsifying medical records to cover up her actions. Her union grieved the firing, arguing her behaviour was motivated by her addiction to painkillers, with addiction recognized as a disability under the Code.

“If there is true disability involved, that has to be brought forth in the analysis of the employer before they make a decision about firing a worker,” Zeilikman tells AdvocateDaily.com. “Context matters, and it should be carefully scrutinized before termination takes place.”

According to the decision, the nurse used non-prescribed drugs on a daily basis for two years, and “she began diverting drugs from the facility to feed her addiction.” After being diagnosed with a severe opiate use disorder and a mild-to-moderate sedative-hypnotic use disorder, she completed a 35-day in-patient rehabilitation program in the fall of 2016, with her physician testifying she was in “excellent sustained recovery” and fit to return to work.

The judgment notes that an expert witness called by the employer argued that addiction was a “bad habit” rather than a mental disorder and that she possessed the capacity to disclose her addiction at an earlier stage.

Furthermore, the decision shows the employer said the woman could not fulfil the bona fide occupational requirements of her team leader position, which included “having the trust of residents, their families, other health-care professionals, and her employer that she would not steal drugs, falsify patient records and be reliable in the delivery of patient care.”

The arbitrator sided with the union, and ordered the employer to reinstate the nurse, and pay her damages.

“Generally speaking, employers should not rush to terminate if there is a human rights element to anything related to workplace performance or conduct,” says Zeilikman. “For instance, if there is a disability involved that has a negative effect on performance, employers should look at that first, and see if there is a reasonable way to accommodate the individual. Of course, employees can still be terminated even where disability is at issue, but context matters.”

He says this decision illustrates that the duty to accommodate is an important aspect to consider before terminating an employee.

“Adverse-effect discrimination recognizes that while the employer may not have intended to discriminate against the employee, the impact of its conduct or workplace rules may, in fact, amount to discrimination under the Code,” Zeilikman says.

While this case was in a union context, he says it's instructive with respect to all workplaces, as non-unionized employees are entitled to the same human rights protection.

The judgment notes that the arbitrator was critical of the employer’s “lack of appreciation of its Code obligations” and that it failed to “take any steps or make any inquiries” about the nurse, despite reports about her appearance and behaviour.

“This case illustrates that there is an understanding in society that addiction is a legitimate disability, and that employers have an obligation to take certain procedural steps such as consulting with the employee, and, if possible, working together on a solution,” says Zeilikman.

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