What kind of addictions warrant accommodation at work?
Question: Can any addiction – such as gambling, video games, etc. – affecting an employee's ability to do her job be considered a disability requiring accommodation before looking at dismissal?
Answer: As set out in the answer to the first question, it is well-established that employers must accommodate disability to the point of undue hardship unless a bona fide occupational requirement would nullify this obligation. Certain addictions, such as alcohol and drugs, have been recognized as legitimate disabilities which entitle the employee to the protection of human rights legislation.
Whether or not a particular addiction is a true disability will be a question of fact. Recently, some employees have alleged that they were addicted to pornography in order to justify surfing pornographic websites at work. So far, that has not been accepted by our courts. However, gambling is recognized at a societal level as a form of addiction, and others will be more readily accepted as time passes.
Just like a “traditional" disability, every case where novel disabilities are alleged will have to be assessed based upon its own particular set of circumstances and medical documentation. In order to satisfy a court or tribunal that she is truly suffering from a disability, an employee will have to produce satisfactory medical evidence to that effect, which could be tested by medical scrutiny and, where appropriate, independent medical examination.
Stuart Rudner is a founding partner of Rudner MacDonald LLP, a Toronto-based employment law firm. He is the author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell, a Thomson Reuters business. He can be reached at [email protected]
