Addicted worker’s breach of last chance agreement not the end

Last chance agreements can be benefitical to both the employer and the employee. For the employer, they can protect its business and workplace by providing a definite cause for dismissal if a troublesome worker repeats past misconduct. For the employee, it can give another chance to keep her job following misconduct that might otherwise get her fired.

However, last chance agreements aren’t always black-and-white, especially when the misconduct in question is related to a disability such as alcohol addiction. Regardless of the language of such an agreement, it doesn’t trump human rights legislation. If an employer would normally have a duty to accommodate an employee with a disability related to misconduct, that doesn’t change if the employee is on a last chance agreement.

A British Columbia company discriminated against an addicted worker when it terminated him for breaching a last chance agreement by failing an alcohol test, an arbitrator has ruled.

The 57-year-old worker, referred to as GH in the judgment, was a cook and deckhand for Seaspan, a marine transportation company based in North Vancouver. His duties included maintenance and safety on tugs, usually for two- to three-week trips. He was hired in 2003.

GH had a history of alcohol and drug abuse from his childhood and into his adulthood. He also used prescription drugs and experimented with harder stuff, resulting in depression, paranoia, low self-esteem and suicidal thoughts.

In 2005, GH became involved in attempts to establish an abstinence-based treatment program for addiction at Seaspan. He promoted the program and, facing resistance from workers who thought it was a way to get rid of employees, GH self-disclosed his addiction to Seaspan and entered the treatment program.

When GH was released from the program, he signed a return-to-work agreement where he agreed to abstain from drugs and alcohol for 24 months and granted Seaspan the right to demand testing if it suspected he was impaired. If GH breached the agreement, his employment would be “automatically reviewed.”

GH also signed a “contingency monitored recovery agreement,” which stipulated that an appointed monitor would administer random urine tests at least once a month for two years and GH had to go to Alcoholics Anonymous and Narcotics Anonymous meetings.

GH successfully completed the two-year period without testing positive. However, in May 2009, he told Seaspan he had suffered a relapse. He didn’t have to attend a residential treatment program, but he was put on a two-year monitoring and counselling program.

Worker suffered relapses

In February 2010, GH contracted pneumonia and his depression worsened. He self-medicated with marijuana cookies and tested positive on March 1. In June, his doctor cleared him to return to work in his safety sensitive deckhand job and he signed another monitoring agreement committing him to abstaining from alcohol and drugs, attending support group meetings and anger management counselling, and undergoing random urine or blood tests, for a period of two years.

At a New Year’s Eve party GH unwittingly ate cookies and cakes containing marijuana. He reported to his monitor and tested positive for marijuana.

A doctor concluded GH was “treatment resistant” and unfit for a safety sensitive job. GH was relieved of his duties while Seaspan considered other positions for him, which the union grieved.

In October 2011, they came up with a mediated settlement agreement which specified an independent medical assessment to determine if GH was fit for safety sensitive work. If not, the company would place him in another job. If he was, he would be subject to a two-year monitoring agreement requiring abstinence from alcohol and drugs and random testing. Any positive test or breach of the agreement would result in “the immediate termination of GH’s employment.” The agreement also stated that it “satisfies the duty of the employer to accommodate to the point of undue hardship.”

Return-to-work agreement gave worker specific obligations

The independent medical assessment indicated GH must completely abstain from drugs and alcohol and participate indefinitely in a recovery program, but if he complied the prognosis was for a “sustained recovery and successful return to work.” GH subsequently signed a return-to-work agreement for 27 months in which he had to maintain abstinence from drugs and alcohol, attend support meetings with a sponsor, undertake 12-step programs, and participate in “rigorous medical monitoring.” Eventually, he would be placed back in his deckhand position. If he breached the agreement, “immediate termination” would result.

GH complied with the agreement without event until March 2013, when he suffered a knee injury at work. He was off work until July, though he continued with alcohol and drug testing.

On Aug. 13, GH was told a test he did had come back positive and he would be kept on the payroll until the results from his “B” sample were confirmed. The “B” sample also came back positive and GH’s employment was terminated for breaching the settlement agreement.

The union grieved the termination, arguing it was discrimination based on disability.

The arbitrator noted that the provision in the settlement agreement providing for automatic termination as the result of GH breaching it made it a last chance agreement. Though not part of collective agreements, last chance agreements “should be given contractual force unless there are strong and compelling reasons not do to so,” said the arbitrator.

However, the arbitrator also pointed out that last chance agreements were subject to human rights legislation, making the agreement’s statement that it fulfilled Seaspan’s duty to accommodate irrelevant.

The arbitrator found GH’s drug and alcohol addiction was a disability – a fact acknowledged by Seaspan when it mentioned the duty to accommodate in the settlement agreement. The termination for his relapse was adverse treatment related to that disability, which was the main factor in termination – establishing prima facie discrimination, said the arbitrator.

The arbitrator examined the requirements for determining whether prima facie discrimination was a bona fide occupational requirement:

• The purpose of Seaspan’s substance abuse policy was a drug- and alcohol-free workplace which, given the safety sensitive positions such as deckhand, was rationally connected to the job.

• The policy was meant to provide guidance and treatment for those with addiction and establish ways to test and monitor employees in safety sensitive positions. It was adopted in “an honest and good faith belief that these requirements are necessary for legitimate work related purposes.”

• GH relapsed four times in the previous four years, with Seaspan accommodating GH on three of those occasions.

“...Four relapses in four years (since 2006, five relapses in seven years), in a safety sensitive position, has satisfied the employer’s duty to accommodate to the point of undue hardship,” said the arbitrator. “An additional factor in my analysis of the duty to accommodate to the point of undue hardship has been the settlement/last chance agreement wherein all parties came to a similar conclusion.”

However, in GH’s favour, there was no evidence he used drugs or alcohol at work and he self-disclosed each time he relapsed. After receiving treatment for his depression, GH was given medical clearance that he would be able to return to work. The settlement agreement allowed that if it was determined GH could not return to work in a safety sensitive job, another position could be found for him. Since the possibility of a non-safety sensitive position was raised, the duty to accommodate would necessitate exploring such options, said the arbitrator.

Since GH self-disclosed all his relapses, he was being treated for his depression as well as his addiction, and his relapses were off-duty without any actual workplace misconduct, the arbitrator found it wouldn’t be undue hardship for GH to be placed in a non-safety sensitive position.

The arbitrator also pointed out that the policy encouraging workers to self-disclose addictions and encouraging their recovery along with workplace safety would be put at risk if GH’s conduct resulted in “immediate termination.”

Seaspan was ordered to reinstate GH to a position that was not safety sensitive with no compensation for lost pay. Seaspan was entitled to require an additional independent medical examination to determine GH’s fitness for work and have GH sign another return-to-work agreement with the same terms.

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