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No direct path for employees with addictions

It can be difficult to figure out the best route when employees with addictions are caught
Alcohol
It’s difficult to determine when the point of undue hardship is reached when an employee is addicted to drugs or alcohol. Zoriana Zaitseva/Shutterstock

By Jeffrey R. Smith

There’s been a lot of dust stirred up over employees who are caught using drugs and alcohol in the workplace or showing up for work under the influence of them. From workplace testing — random, post-incident, or returning to the workplace after rehab testing — to accommodation of addiction disabilities, sometimes it’s hard for employers to figure out what their best — and least liable — course of action might be.

It’s been established that an employee who has an addiction has a disability under human rights legislation, so employers would be required to accommodate that employee to the point of undue hardship.

Such accommodation could amount to support the employee’s rehabilitation efforts, putting the employee in a non-safety-sensitive position, or regular testing.

If an employee relapses, the employer may have to do it all over again, unless it gets to the point where it’s too difficult to keep the employee working or there’s no indication the employee is going to get better. In such cases, the employer may be able to prove undue hardship and cut bait on the employee.

But it’s really hard to determine when the point of undue hardship is reached when an employee is addicted to drugs or alcohol.

Relapses are common for recovering addicts and don’t necessarily mean an employee won’t be able to return as a productive employee.

It’s an accepted fact that alcoholics and drug addicts will always be addicts, and they’re always battling — hence the counting of sober days in groups such as Alcoholics Anonymous and Narcotics Anonymous. And sometimes employers have to weather the storm of relapses if they’re able to do so.

Take the Ontario mining company who required a worker to submit to a post-incident drug test following an incident with a piece of equipment in 2015.

The worker tested positive for THC — the active ingredient in marijuana — and requested help with a marijuana problem. The worker pledged to come back clean, so the company supported his entering a residential treatment program. He returned to work under a last chance agreement that required regular drug testing and counselling.

On his first day back to work, the worker tested positive for cocaine. He came up with an explanation as to why — he said he had been exposed to it through family member who must have used a straw he used to consume prescription Percocet — but the explanation didn’t account for the large amount of cocaine in his system.

The worker was fired but an arbitrator found that the worker deserved a crack at reclaiming his employment.

The arbitrator pointed out that the worker had made progress with his marijuana problem and his home environment didn’t support a drug-free life, so it was more difficult to achieve it.

Though the worker hadn’t been honest about his cocaine use, he had been open about his marijuana use, which gave reason for optimism, said the arbitrator. In fact, getting back to a regular job could help the worker’s recover, the arbitrator added in ordering a return-to-work plan that included more treatment, after-care testing, and an evaluation of whether the worker was fit to work. Any further breach of the company’s policy would lead to immediate dismissal: see North American Palladium and USW (Waldon), Re, 2018 CarswellOnt 9422 (Ont. Arb.).

An addicted employee who breaches an employer’s drug policy may have to be accommodated, and even a second breach may not be grounds for dismissal if there are indications the worker may get better. In the above case, there were even issues with the employee’s honesty about his drug use — but that can be a product of the addiction and the employee’s situation.

When an employer has an employee with an addiction on its hands, it’s not an easy situation. While it might be desirable to get that employee and any associated troubles out of the way, the path to just cause for dismissal — or even without-cause dismissal if the addiction/disability is a factor in the decision — may not be easy to come by.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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