Addicted employee stretched accommodation to the limit

Employer made accommodation efforts but eventually couldn’t continue without indication employee’s absenteeism would improve

No light at the end of the tunnel

Addiction to drugs and alcohol is a disease, and as such is considered a disability. Like any disability, employers are obligated to do what they can to accommodate an employee with such a disability. Throw in some depression, and there are some accommodation efforts that need to be made.

However, an important part of accommodation to remember is that it isn’t open-ended. The obligation ends at the point of undue hardship for the employer. If an employee’s disability is negatively impacting the employer too much and there’s no end in sight, it may be time to terminate the employment relationship.

An Ontario employer had just cause to dismiss an employee with depression and addictions who couldn’t complete treatment and had no clear indication of when he’d be able to work regularly again, an arbitrator has ruled.

Dover Flour Mills operated a flour mill in Cambridge, Ont., that stored, cleaned and processed wheat into flour. The mill featured a large amount of mechanized equipment and heavy bags of flour. As a result, workplace safety was a primary concern for Dover, as was ensuring the quality and safety of the flour.

The employee was hired in 2002 and worked various jobs in the mill over the next eight years including cleaner, fork lift operator and miller trainee. By 2010, he held the position of material handler.

Employee suffered from depression and addictions

The employee was being treated by a psychiatrist when he was hired and continued to see one regularly over the years. In 2006, the psychiatrist diagnosed a “major depressive illness with possibly mild psychotic symptoms” and prescribed medication. At the time, the employee was drinking alcohol and using cocaine, ecstasy and marijuana and the psychiatrist advised him to stop, referring the employee to a counselling service. However, the employee didn’t use the service because he didn’t want to stop using drugs and alcohol.

In early 2007, the employer told his psychiatrist he wasn’t abusing drugs and alcohol as much and said he would try to stay away from alcohol. The psychiatrist again referred him to a counselling service but the employee still didn’t go.

In September 2007, the employee reported to his psychiatrist that he was still drinking too much and he made an appointment for counselling. However, he didn’t show up. The employee continued to use drugs and engage in binge drinking and on March 18, 2008, he was admitted to a hospital for major depression and alcohol abuse. He complained of paranoid thoughts and said he had a knife to protect himself because his boss was hiring a hit man. The psychiatrist provided a note saying the employee needed to be off work for three months.

However, the employee returned to work a month later when his psychiatrist pronounced him fit to work as long as he was limited to day shifts. Dover accommodated the request and scheduled the employee on straight days. By July 2008, the employee asked for regular shift work because he felt night shifts were easier with fewer supervisors. The psychiatrist agreed and informed Dover. What the psychiatrist didn’t know was that the employee was using cocaine and drinking alcohol again.

The employee was absent from work four times over a three-week period in June and July 2008 and he was given an oral warning about his excessive absenteeism. The day after the warning, he was absent again.

On Sept. 1, the employee told Dover that he had an addiction problem. The company offered accommodation and the employee was admitted to a rehabilitation centre, where he underwent treatment for three months. After his treatment, the employee felt confident he could beat his addiction and attended meetings of Alcoholics Anonymous (AA) and Narcotics Anonymous (NA).

However, the employee stopped going to meetings and didn’t follow his recovery plan. He provided a doctor’s note in November 2008 that said working nights would be harmful to his health and he should only work days. Dover returned the employee to day shifts.

The employee was able to work regularly without any problems until the fall of 2009, when he began using drugs and gambling. He missed 15 days of work in one month and in December he asked his doctor to provide a note requesting two months off work so he could attend more AA and NA meetings. Dover granted a two-month leave of absence, but the employee was back at work in January with a note asking to work the day shift so he could attend rehab meetings afterwards. The employee wanted to return to work because he was broke but didn’t want the employer to know he was attending rehab meetings. Without that explanation, Dover didn’t put him on the day shift exclusively.

On Feb. 4, 2010, Dover gave the employee a warning letter regarding more problems with absenteeism. The company was concerned he came back to work too early and told the employee all future absences would have to be confirmed by a doctor’s note. It also warned him that further attendance problems wouldn’t be tolerated.

Four days after the warning, the employee called in sick for his early morning shift — two hours after the shift began — because he was using cocaine. Dover gave him a written warning indicating if he didn’t report an absence before the start of his shift, he would be suspended and possibly terminated. However, the employee called in sick the next day 3.5 hours after the start of his shift and Dover suspended him for three days with the warning that another occurrence would result in a more severe suspension and possibly termination.

The employee met with management on Feb. 26 and told them his mother was taking over his finances and he was trying to alter his lifestyle. The suspension was removed from his record, the written warning reduced to a verbal warning and Dover agreed to accommodate the employee’s attendance at afternoon group therapy sessions for 16 weeks.

Things were fine until late May and early June, when the employee called in sick or went home early on a Thursday or Friday for five consecutive weeks. On the Friday of the sixth week, he called in sick after his shift started and told his supervisor he had been doing drugs. He was suspended for five days and given a final warning.

About a week after the employee returned to work after his suspension, the employee called in sick and said he would not be back to work until September as he was going into “rehab.” He promised to bring in a doctor’s note later that day but did not. Dover told him he would need to request a leave of absence in writing and the employee supplied a doctor’s note excusing him from work until the first week of September for “substance abuse.” Dover said the note didn’t provide sufficient information, so the employee provided another note from his psychiatrist. However, this note said the employee would be off work until Sept. 30.

Employer saw no end to cycle of relapses and absenteeism

At this point, Dover felt it had tried to work with the employee to accommodate his addiction issues but it was frustrated with its inability to get a clear explanation on how to deal with it and what the employee was doing. It was concerned with negative feedback it had received from other employees and safety concerns with the employee continuing to work with his addiction. Without a clear plan for dealing with the addictions, Dover decided to terminate the employee for unapproved absences without adequate medical information.

The arbitrator noted that “there was no dispute” that the employee’s addictions and mental health issues constituted a disability. He found Dover had made several efforts to accommodate the employee, including three leaves of absence from which the employee returned early, changes in his shift schedule and time off for group therapy. However, the employee failed to maintain his treatment and didn’t provide enough information on his accommodation in 2010.

The arbitrator found Dover made reasonable efforts to accommodate the employee, but the employee was still unable to attend work regularly without numerous absences. The continued difficulties and a lack of a clear plan for further accommodation made it doubtful any more accommodation would finally improve the employee’s attendance, said the arbitrator.

The arbitrator found the likelihood that the employee would change his behaviour to allow him to be a safe and productive employee was small, so Dover should not be expected to continue to accommodate him indefinitely.

“In my opinion, it would be an undue hardship to reinstate the (employee) if he could not alter his behaviour and control his addictions so that he can fulfill his basic obligation to attend work regularly in the foreseeable future,” said the arbitrator.

The arbitrator acknowledged that since the employee’s termination, the employee had made efforts to clean up and had entered another treatment program. However, given the employee’s history, there was no evidence the employee wouldn’t relapse again and fail to meet his employment obligations. The arbitrator upheld the termination, finding Dover had just cause for dismissal.

For more information see:

•Dover Flour Mills v. U.F.C.W., Local 175, 2012 CarswellOnt 4835 (Ont. Arb. Bd.).

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