What to do when the employer is aware of a potential disability
Question: If an employee has performance and behavioral issues in the workplace that are the result of drinking, but the employee doesn’t make any claim that he is an alcoholic, does the employer have to consider the possibility of accommodation before considering discipline? What responsibility is there to determine if there is a disability?
Answer: Dealing with “hidden” or “invisible” disabilities is one of the greatest challenges an employer can face when it comes to accommodating its employees.
Where an employee is suffering from alcohol dependency or substance abuse, it is often a condition of the disability itself that the employee will not self-disclose. They will often try to keep their condition a secret for as long as possible in the hope it will either not be discovered or they can manage their work and life without others knowing.
This presents an obvious problem for employers. On the one hand, employers don’t want to be prying into their employees’ lives. On the other, they are concerned with any health and safety risks in the workplace as a result of the employees’ condition.
Under the Ontario Human Rights Code, employers must accommodate an employees’ disability to the point of “undue hardship.” The term “disability” is broadly defined and has been found to include alcoholism. Factors considered in determining whether an accommodation is to be considered undue hardship include the financial cost, the impact on any collective agreement, the impact on other employees as a result of the accommodation, the size of the employer’s operation and interchangeability of the workforce and facilities, and any safety issues which may arise from the accommodation.
For example, undue hardship might be demonstrated where the accommodation would necessitate a complete reorganization of the workplace, or result in the creation of a new position for an employee which has tasks which have no value to the employer at all — in other words, a “make work project.” Another example might be where the accommodation might cause a health and safety concern to other employees, such as where an employee who suffers from alcoholism who might have driving duties as part of his job.
The fact an employee has not disclosed the disability — in this case alcoholism — does not relieve the employer of its duty to accommodate. Where an employer is in possession of information or knowledge about an employee’s condition and from that information it either knew or “ought to have known” the employee was suffering from a disability, it may trigger the obligation to accommodate, even where the employee does not disclose.
This doesn’t mean the employer has to guess. Instead, it imposes an obligation to make an assessment based on what is seen, and determine if the next step of inquiring into a possible problem is necessary. To meet this obligation, there are a few steps to be considered. First, view the misconduct or behavioral issues objectively. If a reasonable person would believe there are concerns with alcoholism of an employee (slurred speech, the smell of alcohol, complaints from other employees) then consider addressing it as a disability and formulating an accommodation plan.
Second, consider an offer of assistance to the employee based on a concern she is suffering from alcoholism, such as a referral to an employee assistance plan or other organization which is suited to assist. Should the employee insist there is no problem, provide her with the information anyway and offer continued assistance in the future if necessary.
Finally, if ongoing employment may be a serious safety issue due to the condition, consider imposing conditions which will either make it necessary for the employee to seek assistance prior to a return to work.Lorenzo Lisi practices employment and labour law with Aird & Berlis LLP in Toronto. Aird & Berlis can be reached at (416) 863-1500 or by visiting www.airdberlis.com.