Addiction in the workplace

The employer’s duty to accommodate addictions

Employers in Canada have a duty to accommodate disabled employees. In recent years, it has become clear that addiction is a disability and employees have a duty to accommodate workers with substance abuse problems.

A recent case involving an undercover Toronto police officer who developed a cocaine addiction, while not a court ruling, provides employers a bit of a blueprint for accommodating such a disability. Another case out of Saskatchewan from late last year, involving an alcoholic worker, is of interest because in that case the court said disability plans must cover workers who are suffering from alcoholism even if the worker denies he has a problem.

Police officer’s addiction to cocaine

The Ontario Civilian Commission on Police Services (OCCPS), an independent civilian commission, recently said a Toronto police officer who developed a cocaine addiction should be able to keep his job, subject to a number of conditions.

Constable Robert Kelly, 38, was hired by Toronto police in May 1989 as a police cadet. From 1994 to 1996, Kelly was assigned to plainclothes work. From 1996 until he was arrested in November 2001, he served as an undercover officer with the drug squad.

In this role he was required to assume the persona of a mid-level drug dealer, to maintain false identities for varying periods of time and to behave in a consistent manner so as to develop relationships with his targets and gain their confidence.

During his time in the drug squad, he experienced a number of traumatic personal events. His partner was shot in front of him. A suspect Kelly was chasing turned and pointed a shotgun at him. His father passed away after a lingering illness. His common-law wife of nine years left him. He became depressed.

He asked about being transferred out of the drug unit, but no formal request was completed. In 2001 he was introduced to “RC”, a police agent. He subsequently developed a personal relationship with RC. The relationship included placing bets with RC based on inside information about predetermined horse race outcomes and sharing a percentage of the winnings with RC.

The two consumed small quantities of cocaine together. The cocaine was sometimes provided by Kelly. In October 2001, as a result of inside information provided by RC, Kelly won $25,000. A dispute arose about payment of the money owed and a falling out occurred. RC contacted the police service’s internal affairs department. Based on her information, the department began a 17-day investigation and surveillance.

On Nov. 16, 2001, Kelly was arrested in a sting operation and charged criminally. He admitted his addiction to cocaine and entered into treatment.

On June 23, 2003, Kelly appeared before a court and pled guilty to two counts of simple possession of cocaine. On March 4, 2004, the court handed down its sentence. Given Kelly’s substantial effort at rehabilitation and his prior impeccable police record, the court suspended his sentence and placed him on probation for two years. He was also given 200 hours of community service.

On June 16, 2004, Toronto police began disciplinary proceedings against Kelly. He pled guilty to being in a bar where he ordered alcohol and supplied RC with about three grams of cocaine while on duty.

He also pled guilty to a second charge that he arranged to meet RC, while on duty, at a bar where the two went out to the parking lot and used cocaine. He also had marijuana in the vehicle.

A joint submission was filed between police and Kelly. Given his guilty plea to the criminal charges and his substantial efforts at rehab, the police were of the opinion that Kelly should have the opportunity to resurrect his career.

A last-chance agreement was presented to the hearing officer, outlining 13 conditions, designed to facilitate Kelly once again becoming a productive member of the police service.

On Sept. 30, 2004, the hearing officer issued his decision. He said he was not satisfied that the joint submission properly addressed significant areas of concern such as public interest, the reputation of the police service, general deterrence and the continued usefulness of Kelly to the service. He said Kelly must resign within seven days or be dismissed.

That ruling was appealed to the OCCPS. Kelly argued the joint submission was appropriate and should be reinstated, and that the hearing officer’s decision was harsh and excessive.

Kelly’s counsel said the hearing officer failed to give adequate consideration to the employer’s duty to accommodate an officer with a disability. They noted that sections of Ontario’s Human Rights Code have been interpreted to include drug or alcohol addiction as a disability that employers must accommodate to the point of undue hardship.

A representative for the Toronto police service defended the hearing officer’s decision, stating that the disability of drug addiction cannot be used as a shield against the consequences of misconduct. He noted the purpose of dismissal is to rid an employer of the burden of an employee who has, by his actions, demonstrated he is not fit to remain employed. He said the issue of public safety must take precedence over any sympathy one might have for a disabled employee facing dismissal.

But the OCCPS said the penalty of dismissal was too harsh. It said there is a legal duty on employers to accommodate employees with such disabilities. At the time of Kelly’s arrest and conviction, the police service did not have a program in place to assist undercover officers with job-related stress and substance abuse.

But on his arrest, Kelly admitted he had a problem. He sought and underwent extensive treatment. He entered a 21-day inpatient program. He successfully completed that program and entered aftercare at the Bellwood Health Services Unit. He subsequently accepted a volunteer position at Bellwood to help others with substance abuse problems.

In total he attended about 400 hours of counseling. His psychologist concluded he had learned to cope with his problems and had a very low risk of relapse. He attended a substance abuse assessment, as required by the service, and it concluded he was fit to return to work.

The OCCPS agreed with the hearing officer that the personal challenges faced by Kelly were no excuse for his choice to break the law and take illegal drugs.

”However, where an addiction is in some fashion work related, is acknowledged, treated and is unlikely to reoccur, these are elements that bear significantly on the broader question of rehabilitation,” it said.

It said it was clear Kelly had been an exemplary officer whose misconduct was out of character. It said the penalty of dismissal was unduly harsh and punitive. While Kelly’s actions were inexcusable and reprehensible, he did everything possible to make things right, it said.

It said the police service could accommodate Kelly without undue hardship. He had agreed to accept demotion to the lowest rank possible, work as a booking officer without his firearm and be subject to rigorous work and medical monitoring conditions. It said Kelly’s continued presence in the service would serve as a constant reminder of the professional consequences of a conviction for serious misconduct.

It overturned the hearing officer’s penalty and restored what was proposed in the joint submission. (For a list of what was proposed in the joint submission, click here.)

Denial no reason to refuse benefits

The Saskatchewan Court of Appeal has struck down a portion of the province’s Disability Income Plan because it discriminated on the basis of a disability — addiction to alcohol. It also said that workers don’t need to admit to having a problem to qualify for benefits.

The section in question placed a different onus on alcoholics than on other disabled workers. The province said the distinction was designed to limit liability to disabilities that occur as a result of deliberate or catastrophic action. But the court said that reflects an outdated view of addictions and treats them as the result of some deliberate act or weakness of character rather than a disease.

The province contended the different treatment afforded alcoholics under the plan is not discriminatory but rather a reflection of the difference between alcoholism and other disabilities. The court also refuted that argument.

“Alcoholics are a vulnerable minority who are stereotyped and discriminated against,” the court said, adding that everyone who is disabled is in need of protection from the effects of income loss.

The court went a step further, stating that refusing coverage to workers who have not yet recognized they have a problem imposes a “burden of disadvantage” on the disabled alcoholic that is not imposed upon other disabled persons seeking coverage under the plan.

“It seems rather incongruous to commence with the assumption that alcoholism is characterized by denial — denial by the alcoholic that the consumption of alcohol is the cause of his disability — and yet expect the alcoholic, of his own volition, to seek out and undergo active treatment before he is even eligible to apply for disability benefits,” the court said. “An employee disabled because of mental health problems would be entitled to receive benefits, even although he may refuse to acknowledge the cause of his disability. Only if the employee failed to attend for regular treatments prescribed by a physician — presumably psychiatric treatment — would benefits be denied. Surely it cannot be said that the distinction is not prejudicial to the disabled alcoholic, or does not place the disabled alcoholic at a disadvantage.”

For more information see:

Saskatchewan (Department of Finance) v. Saskatchewan (Human Rights Commission), 2004 CarswellSask 680 (Sask. C.A.)

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How Const. Kelly kept his job — the 14 conditions imposed on him

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