Employment & Labour

Seek legal advice with addictions in the workplace: Irwin

By Kathy Rumleski, AdvocateDaily.com Contributor

Employers need legal guidance when dealing with addictions in the workplace as case law is continually developing in this area, says Toronto employment lawyer Mackenzie Irwin.

“It can be easy to make a costly mistake, so it’s important that employers avoid making rash decisions when dealing with an employee struggling with addiction and speak to a lawyer,” Irwin, an associate with MacDonald & Associates, tells AdvocateDaily.com.

Under the Canadian Human Rights Code, certain addictions, including drug and alcohol dependency, are recognized disabilities, and employers have the duty to accommodate the needs of employees up to the point of undue hardship, she says.

A 2016 Ontario labour arbitration decision shows the extent to which an employer must consider an employee’s disability due to addiction before a termination, Irwin says.

In the matter, a nurse was fired for a series of thefts of narcotics from a hospital, as well as working under the influence of drugs, according to the arbitrator’s decision.

Information presented to the arbitrator revealed the nurse had altered patient and narcotic records to cover up her addiction, and there was evidence she put some patients at risk.

The Ontario Nurses Association (ONA), representing the employee, didn’t deny the allegations. They argued the nurse’s misconduct was attributable to her addiction, and the hospital’s refusal to accommodate it was discriminatory and a violation of the Ontario Human Rights Code, according to the decision.

The arbitrator agreed with ONA, and the nurse, who was in remission at the time, was reinstated.

“This case solidifies that substance abuse is considered a disability and requires accommodation,” Irwin says.

However, in another case this year, an arbitrator upheld an employer’s decision to terminate an employee with a reported sex addiction, she says.

The decision noted that the employee failed to provide evidence that his behaviour was uncontrollable, Irwin says.

“I don’t think we can confidently say that sex addiction is not a disability, it was just not made out, based on the facts provided to the arbitrator in this particular case,” she explains. “What qualifies as an addiction is something that the courts and tribunals determine on a case-by-case basis.”

It was noted in this decision that the employer had an anti-harassment policy that prohibited offensive and degrading behaviour and had spoken to the employee about his conduct two years before termination, Irwin says.

In rendering his decision, the arbitrator stated that even if the employee suffered from sex addiction, it was not established that it was disabling and therefore the employer had no duty to accommodate him, she says.

Irwin says employers must be alert to certain behaviours — personality changes, erratic conduct, appearances of impairment, lateness and absenteeism that could be signs of a possible addiction — and if they believe that’s the case, they have the duty to inquire about the situation.

But just because there’s been a change in an employee’s behaviour doesn’t mean there’s an addiction at play, so she says it’s vital to speak to the employee before making a decision that could negatively impact them.

While an employee should disclose their disability and accommodation needs to their employer, Irwin says there is often a stigma attached to disclosure or a fear of losing employment.

Therefore, she says an employer must speak to the worker in a respectful and compassionate manner about the changes in behaviour they are witnessing.

“This is tricky ground for employers because they need to avoid pre-emptively diagnosing an employee and recommending treatment,” Irwin says.

As well, the employer must identify performance and behaviour concerns, and explain to the employee the company’s responsibility to accommodate all disabilities, she says.

While the employee does not have to disclose a disability, Irwin says the employer needs to outline the consequences of any attendance or performance issues, according to their workplace policies.

“If a worker does disclose a disability, the employer must take any necessary steps to accommodate the employee up to the point of undue hardship,” she says.

To protect themselves from potential litigation, employers need to be diligent about documenting any incidents and meetings and detailing all steps taken to inquire into the potential disability, Irwin says. In addition, she says employers must document any accommodation steps put in place for the employee.

“Employers should also ensure all of their workplace policies are up to date and that their staff are well trained on these policies,” Irwin says. “There is no point in drafting thorough policies if proper training is not provided.”

She says to accommodate a disability in the workplace, an employer will need medical information and documentation.

There will also need to be effective communication to detail what the accommodation process means and how to implement it, Irwin says.

The employee needs to participate in the process, and the employer must be flexible, she says.

Irwin says the accommodation process should include regular followups and adjustments, if necessary.

As relapses are common with addictions, she says the employer should realize the worker may end up requiring more than one medical leave.

If a company is trying to accommodate an employee but is finding it difficult, Irwin says the company should assess if they have reached a point of undue hardship.

“Employers should not make any decisions about undue hardship without consulting their employment lawyer. This is an evolving area in human rights and employment law, and it can be challenging to navigate. Place a call and get professional advice,” Irwin says.

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