Employer dismissed addict worker from safety sensitive job after years of treatment regimes and relapses
A British Columbia company exhausted its duty to accommodate an employee with drug and alcohol addictions and was entitled to terminate his employment after numerous relapses and rehabilitation attempts, an arbitrator has ruled.
Seaspan is a marine transportation company providing docking services in the Vancouver and Vancouver Island region. The company employs licensed officers with specialized certifications including captains, mates and engineers to staff the company’s tugs and barges. Captains in particular were in safety sensitive positions due to their responsibility for the safety of crew and equipment, as well as avoiding damage to property and the environment.
One 55-year-old worker was hired by Seaspan as a captain in April 2007. His entire career was spent on boats in various capacities and was considered a competent employee, but before he joined Seaspan he had undergone treatment for various addictions and suffered several relapses over many years. As a result, he underwent a pre-employment medical examination that resulted in a prognosis that he was abstaining from alcohol and mood-altering drugs and was going to regular Alcoholics Anonymous (AA) meetings.
A year after he joined Seaspan, in May 2008, the worker suffered a relapse and missed a shift. He was referred for an independent medical assessment, which recommended he complete a 30-day period of continuous abstinence before performing safety-sensitive work. The doctor noted that the worker sincerely wanted to achieve stable abstinence and recovery.
The worker attended a treatment program and returned to work in July 2008 with an agreement that for 24 months he would abstain from mood-altering substances, support all absences “to the satisfaction of the department,” report to work every day “in a fit and reliable condition,” and immediately withdraw from work if he relapsed. He also agreed to be monitored by a professional monitor and therapist during this period.
The worker complied with the agreement for two years while he worked as a relief captain and was monitored by the therapist.
On Dec. 7, 2010, he missed a shift. The next day he called the rehabilitation consultant in the company’s wellness department and reported he had relapsed again. He underwent a medical evaluation on Dec. 23, and the examining doctor determined the worker wasn’t fit for safety-sensitive work and must be abstinent from all mood-altering substances. The doctor also recommended the worker must demonstrate at least 30 days of sustained recovery after treatment before returning to work.
The worker was off work receiving treatment until April 2011, when he returned to work. However, he was only back for a couple of weeks when he relapsed again, using cocaine in early May. Another medical examination determined the worker’s addiction wasn’t a recognized medical disorder, but he needed more treatment.
The worker was sent to a top health centre in Toronto — which the doctor referred to as “Canada’s gold standard of care for his process addiction” — and returned to Vancouver in December 2011, where an assessment once again required 30 days of abstinence and using an aftercare program before returning to work, plus a further two years of monitoring by the same therapist.
The worker returned to work in January 2012. Seaspan provided him with a letter outlining the conditions for his return, including a last chance agreement that included the following provisions:
• Abstinence from all mood-altering substances except for prescriptions
• Working each shift in a fit and reliable condition
• A two-year monitoring agreement with the therapist
• Submitting to breathalyzer, urine tests, or providing a hair sample if the employer reasonably believes a relapse has occurred
• Immediately withdrawing from the workplace if a relapse occurs.
The agreement concluded with the warning that the worker was expected to “comply strictly” with these requirements and a failure to do so would “lead to a review of your employment relationship with Seaspan.”
The worker followed the agreement for some time, abstaining from drugs and alcohol and attending up to five support group meetings a week. Occasionally, he would be assigned to a job out of town for a short period of time, and on such occasion Seaspan accommodated him by not requiring him to report every day or submit to testing.
Worker travelled for project with no recovery support nearby
In the summer of 2012, the worker volunteered for a special project outside of Fort McMurray, Alta., which was expected to run between two and four weeks. He was told there were support meetings at the job site, but when he arrived he discovered that wasn’t the case. He checked to see if there were any meetings in Fort McMurray, but couldn’t find any.
The project was extended for a couple of more weeks and the worker ended up spending 57 days on the project, working every day. He hadn’t attended any support meetings during that time, nor had he been tested or checked in with his monitor — though the company and the monitor hadn’t been concerned, the company was pleased with his efforts, and the worker had in fact avoided drugs and alcohol.
Once the worker returned to Vancouver on Aug. 7, he continued to abstain from drugs and alcohol but didn’t resume going to meetings, connecting with his sponsor, or any other recovery activities. He felt because he had done well in Fort McMurray, he didn’t need to do these things anymore. He continued to check in with his monitor and submit to random tests at work, though he lied to the monitor about attending meetings and performing 12-step work.
Latest relapse last straw for monitor, employer
On Nov. 16, the worker used crack cocaine at a friend’s house. He missed his shift the next day and called Seaspan’s rehabilitation consultant to say he had relapsed. Three days later, Seaspan sent him a letter saying he needed to contact his monitor for a review of his fitness for work.
The worker missed scheduled meetings with his monitor and a doctor for assessments, and failed to show when they were rescheduled. The doctor tasked with assessing the worker informed Seaspan that the worker was demonstrating “treatment resistance” and putting him in a safety sensitive position would be “an unacceptable risk.”
Seaspan had trouble contacting the worker — other than a brief conversation with the monitor on Dec. 22 — until early January. A meeting was set up for Jan. 8, but the worker had another relapse with alcohol two days before and didn’t show. The monitor decided he was no long willing to work with the worker.
Seaspan management met with the rehabilitation consultant and recommended termination of the worker’s employment. On Jan. 13, Seaspan sent the worker a termination letter explaining that his continued relapses and failure to follow his return to work plan made the employment relationship untenable.
The worker grieved the dismissal, claiming Seaspan contributed to his latest relapse by sending him to Fort McMurray without the support needed to continue his recovery. He said he suffered from depression since his latest relapse and the company failed in its duty to accommodate him.
The arbitrator noted that the worker never appeared to have worked for Seaspan while impaired, but the doctor testified that the use of crack cocaine for a long period of time affects the brain, resulting in a loss of inhibition and increased risk of relapses. The worker seemed determined to turn his life around and beat his addictions through seeking treatment, notifying his employer of relapses, and agreeing to last chance and monitoring agreements, but his numerous relapses were reason for concern that he would have things under control enough to work in a safety sensitive position.
Additional cause for concern was the worker’s tendency to lie when he was in relapse, as is common for addicts, said the arbitrator. This made it difficult to rely on his accounts in many circumstances, particularly when he said he abstained completely while in Fort McMurray, and when he told his monitor he was participating in recovery programs after his return.
The fact that the worker was employed in an extremely safety sensitive position where the safety of other employees and the public was at risk was another concern. And the arbitrator pointed out that Seaspan had already made reasonable attempts to accommodate him, allowing time off work and supporting the worker’s rehabilitation treatments after each relapse — including the “gold standard” in Toronto. Yet it still “has had to endure ongoing failures,” the arbitrator said.
The arbitrator also found Seaspan had reached a point where it could no longer accommodate the worker, since there was no indication he would be able to recover to the point where he could be truly trusted in his job. Even the therapist monitoring him gave up trying to keep tabs on him and the doctor indicated the worker was resistant to treatment, and attempts to contact him and discuss what to do after his last relapse were largely unsuccessful . In the end, the worker breached his last chance agreement — which he understood as necessary to follow in order to keep his job — and there was no evidence any further treatment would change the worker’s recovery prospects.
Though the worker sought help for his addiction and was once again being monitored following his dismissal from Seaspan, the arbitrator found it didn’t mean much given his past relapses. In addition, evidence was presented that showed the worker was hired for another job and later lost it for excessive absenteeism, which didn’t inspire confidence that anything would change if he was back with Seaspan.
The arbitrator determined that Seaspan simply could not consider other alternatives for accommodation and it would be undue hardship to continue the employment relationship.
“When one takes into consideration the numerous treatments the (worker) has received over the years prior to and during his employment, the many times he has been granted time off by Seaspan to receive treatment, his loss of other employment in the industry, his frequent relapses, his missing work from November to December 2012 and his repeated refusal at that time to meet with (his monitor and doctor) on six separate occasions, it cannot be concluded that Seaspan’s decision to terminate (the worker) was unreasonable or in violation of human rights legislation,” the arbitrator said in dismissing the grievance.
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