But doing nothing can leave employer vulnerable
In many cases, the duty to accommodate an employee who suffers from an addiction to drugs or alcohol means the employer must take steps to allow the individual to obtain help. This can include participation in external counselling or seeking assistance through a company-funded employee assistance program (EAP). Sometimes employers will require an employee to obtain counselling as part of the disciplinary process. Typically, employers in such circumstances say failure to participate in the mandated treatment will be just cause for dismissal.
But what happens if an employee fails to live up to her end of the bargain? What if she doesn’t seek or continue the mandated treatment? Can the employer terminate the employment relationship? Conversely, if the employer lets it slide, and the employee subsequently causes an accident that results in personal injury, can the employer be held liable?
A couple of arbitration decisions out of Ontario provide good examples of what happens when workers don’t comply with mandatory counselling.
In Ontario Hydro v. Ontario Hydro Employees’ Union, Local 1000, a 1986 decision, the employer made treatment for alcoholism a condition of a return-to-work agreement. To keep his job, the employee had to be in a followup treatment program for one year after returning to work and his work performance was not to be affected by the use of intoxicants. According to the agreement, failure to comply with this condition would result in immediate termination. The employee missed work on two occasions, 13 months apart, due to alcohol abuse. Ontario Hydro dismissed him, alleging he had not complied with the terms regarding treatment under the EAP.
The board found the employee’s capacity to control his drinking problem had greatly improved through attendance at Alcoholics Anonymous meetings. Given there were only two instances of alcohol-related absenteeism over a lengthy period, the board reinstated the employee, finding that just cause for dismissal did not exist.
An employer may be entitled to require participation in an EAP in situations where there is already just cause to terminate the employee. However, in this case the board noted the employer did not have just cause for dismissal prior to the return-to-work agreement. As a result, the board found the employer could not mandate participation in the EAP. Moreover, the board cautiously suggested that in running a successful EAP, an employer should make a second mandatory referral in the event that an employee suffers a relapse.
In National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 524 v. General Electric Canada Inc., the arbitrator found the employer had just cause to terminate the worker after he had been given several opportunities to obtain alcohol counselling. The worker had been discharged once before for issues related to alcoholism. He brought this grievance after a second discharge, which he claimed was without cause.
The employer had assisted the worker through four different treatment programs, supported him in Alcoholics Anonymous meetings and invited him to use the company’s EAP. When the worker was reinstated, his return was subject to several counselling conditions. Despite these conditions, he missed work, struggled with the EAP and failed to seek out local counselling as recommended by the employer. The arbitrator found the company was not obliged to do any more.
Employers who create a dangerous situation can be subject to criminal charges under s. 217.1 of the Criminal Code. This relatively new section provides that those responsible for directing the work of others have a legal duty to take reasonable steps to prevent bodily harm arising from such work. Employees, managers, and directors can all be prosecuted where the health and safety of others is jeopardized.
If an employer does not terminate an employee who has an addiction that affects his own safety or the safety of others, representatives of the employer could be criminally prosecuted. Employers should therefore be wary of allowing a substance-addicted employee to continue, without treatment, in a position where there can be risk to the safety of the employee, his colleagues or anyone else.
Employers must walk a fine line in balancing safety concerns with the human rights of their employees. If there is a real chance the employee might cause harm to himself or others, then the balance would seem to tip in favour of dismissal once the employee has been given sufficient opportunity to get with the program. Otherwise, the employer could face serious liability. Conversely, dismissing the employee might result in a finding that the employee’s human rights were breached.
Stuart Rudner is a partner with Miller Thomson LLP’s Toronto office. He practices commercial litigation and employment law and can be reached at (416) 595-8672.
But what happens if an employee fails to live up to her end of the bargain? What if she doesn’t seek or continue the mandated treatment? Can the employer terminate the employment relationship? Conversely, if the employer lets it slide, and the employee subsequently causes an accident that results in personal injury, can the employer be held liable?
A couple of arbitration decisions out of Ontario provide good examples of what happens when workers don’t comply with mandatory counselling.
In Ontario Hydro v. Ontario Hydro Employees’ Union, Local 1000, a 1986 decision, the employer made treatment for alcoholism a condition of a return-to-work agreement. To keep his job, the employee had to be in a followup treatment program for one year after returning to work and his work performance was not to be affected by the use of intoxicants. According to the agreement, failure to comply with this condition would result in immediate termination. The employee missed work on two occasions, 13 months apart, due to alcohol abuse. Ontario Hydro dismissed him, alleging he had not complied with the terms regarding treatment under the EAP.
The board found the employee’s capacity to control his drinking problem had greatly improved through attendance at Alcoholics Anonymous meetings. Given there were only two instances of alcohol-related absenteeism over a lengthy period, the board reinstated the employee, finding that just cause for dismissal did not exist.
An employer may be entitled to require participation in an EAP in situations where there is already just cause to terminate the employee. However, in this case the board noted the employer did not have just cause for dismissal prior to the return-to-work agreement. As a result, the board found the employer could not mandate participation in the EAP. Moreover, the board cautiously suggested that in running a successful EAP, an employer should make a second mandatory referral in the event that an employee suffers a relapse.
In National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 524 v. General Electric Canada Inc., the arbitrator found the employer had just cause to terminate the worker after he had been given several opportunities to obtain alcohol counselling. The worker had been discharged once before for issues related to alcoholism. He brought this grievance after a second discharge, which he claimed was without cause.
The employer had assisted the worker through four different treatment programs, supported him in Alcoholics Anonymous meetings and invited him to use the company’s EAP. When the worker was reinstated, his return was subject to several counselling conditions. Despite these conditions, he missed work, struggled with the EAP and failed to seek out local counselling as recommended by the employer. The arbitrator found the company was not obliged to do any more.
Employers who create a dangerous situation can be subject to criminal charges under s. 217.1 of the Criminal Code. This relatively new section provides that those responsible for directing the work of others have a legal duty to take reasonable steps to prevent bodily harm arising from such work. Employees, managers, and directors can all be prosecuted where the health and safety of others is jeopardized.
If an employer does not terminate an employee who has an addiction that affects his own safety or the safety of others, representatives of the employer could be criminally prosecuted. Employers should therefore be wary of allowing a substance-addicted employee to continue, without treatment, in a position where there can be risk to the safety of the employee, his colleagues or anyone else.
Employers must walk a fine line in balancing safety concerns with the human rights of their employees. If there is a real chance the employee might cause harm to himself or others, then the balance would seem to tip in favour of dismissal once the employee has been given sufficient opportunity to get with the program. Otherwise, the employer could face serious liability. Conversely, dismissing the employee might result in a finding that the employee’s human rights were breached.
Stuart Rudner is a partner with Miller Thomson LLP’s Toronto office. He practices commercial litigation and employment law and can be reached at (416) 595-8672.
