Zero-tolerance policy doesn’t remove accommodation obligation if worker acknowledges marijuana addiction
A British Columbia worker who knew he was violating his employer’s zero-tolerance policy by smoking marijuana at work should be accommodated because he had an addiction that had some effect on his decision, the British Columbia Arbitration Board has ruled.
Phillip Grant, 53, worked for Rio Tinto Alcan Primary Metal, an aluminum smelting operation in Kitimat, B.C. He worked for Rio Tinto for 34 years. He was suspended for three days in 1980 for possessing non-prescription drugs at work and received a written warning in 1984 after it was suspected he was intoxicated at work. However, a verbal warning he received for being late to work in 1992 was the most recent discipline on his record.
Grant had a history of drinking and using marijuana but had stopped drinking in 1992. He also decreased his marijuana use but eventually resumed smoking it regularly by 2006. On April 10, 2008, Grant’s supervisor caught him smoking marijuana at his workplace. Grant quickly threw the joint away and denied it was marijuana. The supervisor found it but Grant still denied it was his at a meeting that day.
Zero-tolerance policy
Rio Tinto had a strict zero-tolerance policy against the use of non-prescription drugs because its workplace was very safety sensitive. Grant’s own job duties required the operation of heavy equipment, working with molten metal and dealing with electricity. The company made it clear to employees through memos it sent out and other reminders of its policy that anyone found possessing or using drugs or alcohol at work would be fired immediately. Grant acknowledged he was aware of the policy.
Rio Tinto placed Grant on indefinite suspension pending further investigation. At a meeting five days later, Grant finally admitted he had been smoking a joint and said he had a problem. He said he had called the company’s employee assistance program (EAP) and had made an appointment to deal with it.
Rio Tinto fired Grant for violating its zero-tolerance policy, which it said was the only possible outcome of his misconduct. Grant grieved his firing, arguing the collective agreement required a mandatory referral to an EAP in lieu of discharge in this type of situation if the employee acknowledges or the employer has reason to suspect an addiction.
Addiction a factor but worker was aware of risk
The board found Grant had a problem with marijuana as well as alcohol, though he had successfully dealt with his alcohol problem for 16 years. It also acknowledged marijuana addiction usually doesn’t involve the extreme behaviour of other addictions, and as a result it found Grant hadn’t lost complete control over his actions. However, it said the addiction was enough to cause a moderate loss of control, so even though he knew the consequences of smoking marijuana at work, his decision to do so was affected to some extent by his addiction.
However, the board found Grant’s addiction was not serious enough to prevent him from realizing what he was doing and how serious his misconduct was, especially after Rio Tinto’s drug and alcohol policy was communicated to him.
“(Grant’s) ability to alter his behaviour was affected to the extent that he was not able to stop even in light of the increased risk of losing his employment,” the board said. Nonetheless, he was capable of some understanding of the serious nature of using marijuana in a very safety sensitive situation. (He) made a wrong choice when he smoked marijuana at work and his addiction had a moderate influence over that choice.”
The board found even if the loss of control was moderate, marijuana addiction is a physical disability that requires accommodation to the point of undue hardship. Though the policy was formed in good faith with the intent to stop or reduce the use of drugs at work and was rationally connected to the performance and safety of the job, Rio Tinto made no attempts to investigate Grant’s problem after he acknowledged it. Since there was no accommodation attempt, Rio Tinto could not prove there was undue hardship.
The board reinstated Grant and ordered Rio Tinto to investigate accommodation options.
However, it acknowledged Grant’s misconduct was very serious in light of the safety sensitive workplace and ruled Grant should have a 10-month suspension without pay or benefits. Upon his return to work, Grant must abstain from all non-prescription mood-altering drugs, attend addiction meetings and consent to two drugs tests before he returns to work and regular tests for the next two years of employment at Rio Tinto.
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