Nature of disability prevented worker from revealing addiction earlier: arbitrator
An arbitrator has reinstated a railway worker who was fired for being impaired from cocaine at work after the worker demonstrated successful rehabilitation efforts.
The worker was a locomotive engineer for Canadian Pacific Kansas City Railway (CPKCR) since 2007. His position was considered a safety-critical one, as it involved the operation of train locomotives.
The worker had some discipline on his record, but had multiple lengthy periods without discipline.
On May 4, 2022, the worker was involved in a two-car derailment. In accordance with CPKCR’s policy, he was required to submit to post-incident drug and alcohol testing through both oral swab and urine tests.
The worker’s oral swab and urine tests both tested positive for cocaine and cocaine metabolites and the worker admitted that he had been impaired from using cocaine at the start of his shift. This was a breach of the Canadian Rail Operating Rules (CROR) and the Rule Book for Train and Engine Employees. It also breached CPKCR’s HR policy around impairment.
Worker revealed addiction
The company investigated and interviewed the worker. During the investigation, the worker revealed that he had a substance abuse disorder, which he had denied before to both the company and his doctors. The company asked if he was aware of its policy recognizing that substance abuse disorders are medical conditions and employees were required to report them and seek assistance from the company’s resources or their treating physician. The worker replied that he was aware of the policy but he didn’t think he had a substance abuse problem prior to the derailment.
The worker also stated that he had “a longstanding issue with cocaine and alcohol use for the last 10 years” and self-reflection had led him to realize that he had an addiction. He added that he had started taking steps towards recovery, such as attending narcotics anonymous meetings and counselling from the employee and family assistance program (EFAP).
The worker also said that he was working to get help and he hoped to continue to contribute to CPKCR in the future.
However, CPKCR determined that the worker’s failure to disclose his addiction for 10 years constituted dishonesty striking at the heart of the employment relationship, and trying to accommodate him with a return to work would be undue hardship. As a result, the company terminated the worker’s employment.
Duty to accommodate
The union filed a grievance, asserting that the worker’s addiction was a disability at the time of the incident and it was discriminatory to terminate his employment. It argued that the company did not establish that it had accommodated the worker to the point of undue hardship, noting that “addicts deny, lie and conceal to cover up their addictions” but it was a function of their disability.
The worker also showed that he had found alternate employment in a safety-sensitive environment and provided evidence from his treating addiction specialist that he was in “sustained remission.”
The arbitrator noted that drug addiction was a disability under the Canadian Human Rights Act, so the worker’s 10 years of addiction was a disability. This was supported by his family doctor, who referred the worker for addiction support for regular cocaine use, said the arbitrator.
The arbitrator also found that the worker’s termination of employment was an adverse impact, which met the second part of the three-part test for prima facie discrimination. The final factor, whether there was a link between the disability and the adverse impact, was also established because the worker’s disability caused him to be impaired at work, which was the reason for his dismissal, the arbitrator said.
With discrimination established, CPKCR had a duty to accommodate to the point of undue hardship.
Rehabilitation efforts
The arbitrator noted that the railway industry was dangerous and an impaired employee endangered himself, other employees, and the public. However, the worker and union provided substantial evidence that the worker was making significant rehabilitation efforts, such as counselling through the EFAP, outpatient support, narcotics anonymous meetings, and other methods since his dismissal. In addition, the worker provided medical evidence that he had remained sober since his dismissal, the arbitrator said.
The arbitrator found that a blanket policy requiring disclosure of an addiction was unreasonable when the addiction itself could be a factor that prevents the disclosure. As a result, the worker’s failure to disclosure his addiction until late in the game wasn’t necessarily reason to terminate his employment, as “someone who suffers from addiction is often unable to reveal or recognize their problem,” said the arbitrator.
The arbitrator found that the worker demonstrated “substantial efforts in his rehabilitation efforts” that had been successful to that point. With clear evidence of rehabilitation, the arbitrator determined that the employment relationship wasn’t damaged beyond repair and the worker was capable of returning to his role with CPKCR.
CPKCR was ordered to reinstate the worker to his locomotive engineer position without loss of seniority, but without compensation for the missed time since his termination. It was remitted to the parties to determine other protective orders that may be necessary to ensure there were no further incidents of impairment at work.
See Canadian Pacific Kansas City Railway and Teamsters Canada Rail Conference (AB), Re, 2024 CarswellNat 2333.
