What to do when the employee doesn't want to address addiction
Question: If an employer offers a comprehensive employee assistance program (EAP), is there an obligation to further accommodate an employee with an addiction disability
if the employee refuses to use the EAP?
Answer: Theoretically yes, on the basis that “denial” can be a symptom of addiction.
For example, in Kemess Mines Ltd. v. I.U.O.E., Local 115, the arbitrator, Donald R. Munroe, Q.C., found that the employer’s duty to accommodate was not met, because the employee was in denial about his addiction. The employee, who had not sought assistance from the employer’s EAP, was dismissed when caught smoking marijuana. The British Columbia Court of Appeal upheld the arbitrator’s decision, stating:
“The scope of the employee’s duty may vary depending on the relevant factors in the case, including whether the employee is in denial or unaware of his addiction/disability. I would not say that there can never be a duty on an undiagnosed employee to seek help voluntarily. And once the employee is aware of his addiction, there is no doubt that he must do all he can to facilitate the success of his rehabilitation and treatment. The facts of each situation must be assessed on a case by case basis.”
On the other hand, in Stewart v. Elk Valley Coal Corporation, the dismissal of an employee based on a similar policy was upheld. The employee, a truck driver on a safety sensitive work site, tested positive for cocaine after colliding with another vehicle. The employer’s policy allowed drivers to seek assistance through an EAP without discipline, but only before the occurrence of a workplace incident. The policy clearly stated that dismissal could result if the policy were breached.
Following the accident, the employee claimed his failure to take advantage of the policy resulted from his denial of his own addiction. However, the tribunal found no discrimination, because the policy applied equally to drug addicts as it did to drug users who were not addicted. It therefore reasoned that the complainant’s dismissal was owing to his breach of the policy, not his addiction. The Alberta Court of Appeal later upheld these reasons.
There is some uncertainty whether the accommodation process continues beyond an employee’s refusal to use an EAP, and an employer’s obligation depends on the circumstances. The post-refusal incident in Elk Valley was more serious than that in Kemess, where the employee was simply caught being intoxicated.
For more information see:
• Kemess Mines Ltd. v. I.U.O.E., Local 115, 2005 CarswellBC 2368 (B.C. Arb.), aff’d. 2006 CarswellBC 293 (B.C. C.A.).
• Stewart v. Elk Valley Coal Corp., 2015 CarswellAlta 1190 (Alta. C.A.).
