Addicted employee keeps relapsing

Question: If an employee with a drug addiction keeps having relapses despite numerous attempts to accommodate him and just can’t stay working, can the employer terminate his employment?

Answer: An employee’s drug addiction can negatively impact behaviour, performance, and workplace safety. Given that relapses are common and considered a part of drug dependency, these employees often have high rates of absenteeism. As tempting as it may be to terminate these employees, employers must first be mindful of their legal obligations. Drug addiction is considered a disability under human rights legislation and, like any disability, employers have a duty to accommodate to the point of undue hardship.

A duty to accommodate is the principle that employers should, in good faith, make every reasonable effort to support the disabled employee. This duty is shaped by medical information substantiating the employee’s drug addiction, the employee’s specific limitations and restrictions in performing their job duties, and confirmation that the employee is following any prescribed treatment plans. It is the employee’s responsibility to disclose this information and it is the employer’s responsibility to respect the dignity and privacy of the employee.

To accommodate, employers should consider using temporary employees, offering flexible work schedules, and allowing time off for rehabilitation programs. In the context of an employee who continues to relapse, the employer may be required to tolerate absenteeism over several relapses.

In cases of sustained addiction and disability with failed rehabilitation, employers could also consider entering into a “last chance agreement” with the addicted employee. This type of agreement generally states that the employee agrees her employment will be terminated if she does not abstain from drugs, and waives any right to complain under human rights legislation. Despite this strong language, these types of agreements are only persuasive and not determinative of an employer’s right to terminate. Employers cannot contract out of the statutory duty to accommodate and therefore they are often required to show additional evidence of accommodation beyond the agreement itself. Employers may even be required to have the employee sign a second, or “last, last chance agreement” before the duty to accommodate is discharged.

For example, in Seaspan ULC and ILWU Canada, Local 400 (H. (G.)), Re, the adjudicator held that a single last chance agreement was not enough to justify the termination of an employee who had relapsed four times in four years. While the arbitrator confirmed that last chance agreements should be given effect unless there are “strong and compelling reasons” not to, he ultimately reinstated the employee because the employer did not show that it could accommodate the employee in other, non-safety sensitive, positions.

Ultimately, the employer will be able to lawfully dismiss the employee when it can show on a balance of probabilities that accommodating the employee has reached the point of undue hardship. An illustrative case is one from the Supreme Court of Canada, where the employee had 960 days of absences over five years due to a disability. The court upheld the employee’s dismissal and found that where the employee is unable to resume work in the foreseeable future, undue hardship may arise.

For more information see:
· British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CarswellBC 2730 (S.C.C.).

· Seaspan ULC and ILWU Canada, Local 400 (H. (G.)), Re, 2014 CarswellNat 4087 (Can. Arb.).

· Syndicat des employé-e-s de techniques professionnelles & de bureau d'Hydro-Québec, section 2000 (SCFP-FTQ) c. Corbeil, 2008 CarswellQue 6436 (S.C.C.).