Field operator's third relapse causes undue hardship for employer

'They had a very even-handed approach when he relapsed – the response was always 'Let's get you some help''

Field operator's third relapse causes undue hardship for employer

A Newfoundland and Labrador company’s accommodation of a worker with a drug abuse problem reached the point of undue hardship after his third relapse, an arbitrator has ruled.

It’s a case that demonstrates the importance of an employer’s approach to accommodation but also that the employee has a duty to co-operate, says Ruth Trask, an employment lawyer at Stewart McKelvey in St. John’s who was employer counsel in the case.

“The employer has a duty to always take what I'll call the high road, and to make sure that they have a very steady, positive, and professional approach to all employees, and they have this significant duty to be sincere in trying to get people assistance,” says Trask. “Anytime there's an HR professional who's faced with this kind of circumstance, the first question has to be ‘How can I help this person?’”

The worker was hired in 2013 by Corner Brook Pulp and Paper Limited (CBPP) to work at its mill in Corner Brook, NL. He started as a casual employee and eventually became a TMP field operator. The TMP department created liquid stock by applying steam to wood fibre and maintaining it at a high temperature before it was used to make paper.

The worker’s position involved walking around the TMP department, completing a physical check sheet, cleaning equipment, and locking out equipment for maintenance work – a position responsible for the safety of himself and other employees.

CBPP had a drug and alcohol policy that required employees to report fit for work. It banned the use, possession, or being under the influence of illicit or prescription drugs while on company property. The policy stated that breaching it had a usual penalty of termination of employment.

Absenteeism, medical issues

In April 2018, CBPP met with the worker for the first of the four-step disciplinary process for minor absenteeism, which involved a warning. At the meeting, the worker appeared to be asleep. The worker later said that he may have appeared drowsy because he had been taking prescription anxiety medication.

In August, a supervisor observed that the worker looked tired. When he went to check on the worker later, he couldn’t find him or reach him on his cellphone. Concerned that the worker had been injured, he called the company’s emergency response team, who found him asleep in an unused room. Following an investigation, the worker was suspended for six shifts. CBPP instructed him to attend counselling sessions and the counsellor would have to approve his return to work.

In November, the worker asked for help with substance abuse issues and CBPP placed him on short-term disability (STD). A short time later, he provided a medical note stating that he had been diagnosed with depression and anxiety and was taking medication.

The worker returned to work in January 2019, but in March he provided a medical note stating that he was to be off for two weeks. He told CBPP that he had gone from his prescription medication to harder drugs and his addiction was getting worse. He went back on STD and attended an in-patient treatment program.

After the worker was discharged from the program, CBPP’s occupational nurse checked on him with regular phone calls. In August, he received medical approval to return to work and CBPP developed an accommodation agreement with a graduated return, requirements to continue his treatment, and permission to leave work at any time to get medication or attend counselling as long as he informed his supervisor.

Read more: The first relapse of an employee suffering from addiction didn’t reach the point of undue hardship for his employer, an Ontario arbitrator ruled.

CBPP set up a good framework for helping the employee with his drug abuse problem, even with the firm restrictions of the policy, says Trask.

“Everything that they did was designed to help the employee and it wasn’t approached with a disciplinary bent, it was approached with a theme of assisting and communicating,” she says. “And they had a very even-handed approach to him when he relapsed – the response was always ‘Let's get you some help. Please go to the counsellor, please go to the treatment program.’ It was not an idea of punishment.”

The worker agreed to the plan and returned on Sept. 2. On his first regular 12-hour shift on Sept. 13, he appeared to be disoriented with slurred speech and was staggering when he walked. Others thought he appeared “spaced out” and he had trouble performing a task he had been assigned. The worker was pulled into a meeting with management, where he appeared to fall asleep. The worker said he was fit for work, but he was suspended pending investigation.

Three days later, the worker spoke to management. He denied using drugs but said he “messed up” and had no desire to use drugs again.

No acknowledgement of relapse

Other employees were worried about their safety working with the worker, so CBPP called a meeting on Sept. 27. The worker said he had run out of medication and had missed a dose the day before the Sept. 13 incident, but CBPP learned that this wasn’t true. The worker said he was remorseful and wouldn’t do it again, but he didn’t acknowledge relapsing and using drugs.

CBPP terminated the worker’s employment on Oct. 8 for dishonesty and reporting for work while impaired.

The union filed a grievance, arguing that CBPP didn’t accommodate the worker to the point of undue hardship and the worker was unable to comply with the drug and alcohol policy because of his disability.

The arbitrator found that CBPP had grounds to discipline the worker, as the evidence indicated that the worker violated the drug and alcohol policy and the return-to-work plan by showing up for work impaired. In addition, the worker didn’t admit to using drugs or to having a relapse when interviewed, and he lied about missing a dose of medication.

“The [worker] came into that meeting and basically denied responsibility for what had happened,” says Trask. “He didn't actually acknowledge until the arbitration hearing that he was under the influence on that day.”

“In other words, he said, ‘I wish this hadn't happened,’ which is not the same thing as taking responsibility for the choices he had made to end up in that scenario and proactively coming forward.”

Read more: A safety-sensitive BC employer exhausted its duty to accommodate an employee with an addiction after several relapses and rehabilitation attempts.

The arbitrator also found that the worker’s discipline record – a warning for absenteeism and a suspension for sleeping at work – supported termination as an appropriate response.

There was no dispute that the worker had a drug addiction, which is a disability under the province’s Human Rights Act. However, CBPP’s standard that employees not be impaired at work was rationally connected to the job and as adopted in an honest and good-faith belief that it was necessary, the arbitrator said.

The third step of the test for undue hardship was also met, the arbitrator said, pointing to the fact that the worker’s relapse was his third since his warning for absenteeism, CBPP supported his treatment, and the company developed a graduated return-to-work plan to help him resume his employment. It was the worker who failed to do what was necessary to successfully return to work and his failure to acknowledge his third relapse made it impossible for CBPP to accommodate him any longer, the arbitrator said.

Point of undue hardship

As for reaching the point of undue hardship, CBPP couldn’t have done anything else to accommodate the worker, says Trask.

“As the union suggested, he could have had more treatment, he could have been given more time, he could have had some more testing, he could have had more check-ins, but the [worker] was already receiving all of those,” says Trask. “The [worker] was the one who needed to meet them halfway and he demonstrated through his actions that he wasn't able to or wasn't willing.”

Given the safety-sensitive nature of the workplace, the worker’s culpable behaviour, and his dishonesty in the investigation, the arbitrator found that CBPP had just cause to terminate the worker’s employment.

“I don't think that this decision makes any new law, per se, but it reinforces the principles that were already in place,” says Trask. “And the main thing is that the employer [should] have a very steady, positive, professional approach to all employees, and they have this significant duty to be sincere in trying to get people assistance.”

Trask adds that if an employer stays in touch with employees in such circumstances on their progress and their fitness for work, it will go a long way towards meeting the duty to accommodate.

“Staying in touch with them, finding out what it is that they need, making sure that their needs are met to the extent that they express them to you – you'll not really ever go wrong with having made sure that people know that there's help for them,” says Trask. “And you can only do what you can do – then it's on that individual to meet their end of the bargain.”

See Unifor, Local 64 and Corner Brook Pulp and Paper Ltd., Re, 2022 CarswellNfld 166.

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