'In addition to addressing employee behaviour, they still need to look at the duty to accommodate'
“A policy requiring disclosure [of addiction] doesn't absolve an employer of the duty to accommodate.”
So says Dylan Snowdon, a labour and employment lawyer at Carbert Waite in Calgary, after an arbitrator ordered a railway to reinstate a worker it fired for failing a post-incident alcohol test and breaching company policy.
“The employer was seeking to directly address the employee’s behavior, and they were right to do that,” says Snowdon. “But in addition to addressing employee behavior, they still need to look at the duty to accommodate as that obligation still exists.”
The worker was a train engineer for Canadian Pacific Kansas City Railway (CPR). He had 17 years of service with a good disciplinary record.
CPR had a provision in its collective agreement governing discipline that required a “fair and impartial investigation” before determining discipline or dismissal.
Post-incident testing
In October 2022, the worker was involved in an accident at work, so he was required to undergo post-incident drug and alcohol testing. His test came back positive for a blood-alcohol level above the acceptable minimum. The superintendent spoke to the worker and asked if he was drinking while at work. The worker replied no, but he had been drinking the night before.
The worker’s impairment level was high enough that CPR didn’t permit him to drive his car home.
“Post-incident or near-miss testing is generally supported as part of an investigation process to determine how that incident occurred,” says Snowdon. “The fact that it's post-incident keeps things simple, as compared to pre-employment or random testing that’s less likely to be upheld as reasonably necessary, because it's difficult to prove an increase of safety from pre-employment or random programs.”
CPR conducted an investigation and interviewed the worker. The worker was asked again if he had been drinking at work, and the worker said he had started drinking the previous afternoon from about 3 p.m. to about 10 p.m. He woke up later and “had a couple more drinks” before going back to bed. He couldn’t recall how many drinks he had in total, but he reiterated that he did not have any after he reported to work.
The worker was also asked if he commonly drank prior to being available for duty and in general. The worker said no to the former and yes to the latter. The investigator asked the worker if he suffered from any condition of which CPR should be made aware with regards to alcohol, and the worker said he had started having health issues a year previously and was currently taking steps to deal with his problem.
Dismissed for being impaired at work
The worker also said he was sorry for the incident and grateful that no one was hurt. He added that he was “disappointed and angry with myself” for not seeking help sooner and he would be starting a four-month alcohol recovery program shortly. However, CPR terminated his employment for being impaired at work.
The union grieved the dismissal, arguing that CPR didn’t conduct a fair and impartial investigation as the superintendent informally questioned the worker before the investigation. It also argued that CPR discriminated against the worker by failing to meet its duty to accommodate the worker’s dependence on alcohol to the point of undue hardship.
At step 1 of the grievance, the union stated that the worker had “developed an illness in regards to alcohol consumption.” It requested that the worker be returned to service and considered for accommodation until his medical issues were resolved.
The grievance went to step 2, where the union discussed the worker’s alcohol dependency. CPR acknowledged that the worker was taking steps to recovery, but it didn’t agree that it was a mitigating factor that justified overturning the dismissal.
The worker successfully completed the recovery program and, in August 2023, he found a job with a different railway under a relapse prevention agreement that included total abstinence from drugs and alcohol. He also attended Alcoholics Anonymous meetings three times per week.
Policy required disclosure
The grievance went before the Canadian Railway Office of Arbitration and Dispute Resolution, where CPR pointed out that its alcohol and drug policy and procedures required employees to disclose a substance abuse problem before an incident occurred. CPR also said that the worker never requested accommodation prior to the incident and he wasn’t fired for his alcoholism but for breaching the alcohol and drug policy by testing positive and consuming alcohol prior to reporting for work.
The arbitrator noted that CPR and the union had agreed to a formal investigation process and the superintendent was aware of the possibility of substantial discipline. It may not have been appropriate for him to question the worker prior to the investigation and without union representation for the worker, but the questions he asked were substantially similar to what was asked in the investigative interview, said the arbitrator in finding that the worker wasn’t prejudiced against by the advance questions.
The arbitrator also found that the investigator asked a leading question about whether the worker commonly drank, but it was “an isolated incident and not indicative of the tenor of the vast majority of the questions posed by the investigator.” As a result, the arbitrator determined that any flaws in the investigation process were not significant enough to have “substantially compromised the integrity of the record."
As for discrimination, the arbitrator noted that worker would have to prove three elements – he had a protected characteristic under the Canada Human Rights Code, he experienced an adverse impact, and the protected characteristic was a factor in the adverse impact.
Although CPR argued that the worker never disclosed a disability or requested accommodation, the union repeatedly invoked an alcohol dependency and the need to accommodate during step 1 and 2 of the grievance process.
The arbitrator also noted that CPR’s argument was the failure to disclose prior to an incident under the policy, not that the worker didn’t have a disability related to alcohol dependency. The latter would be a new argument that couldn’t be introduced at this stage of the process, said the arbitrator.
Duty to accommodate
The arbitrator found that the worker clearly had an alcohol dependency at the time of the incident, as he admitted to drinking heavily on the day and night before his shift and told the investigator that he had health issues related to alcohol. Although there was no medical diagnosis, the evidence showed that the worker had a drinking problem that affected his health and he sought treatment, said the arbitrator in determining that the worker suffered from an alcohol dependency of which CPR was aware.
With a protected characteristic evident, the arbitrator also found that the termination of the worker’s employment was an adverse impact.
The arbitrator also found that the worker’s dismissal was related to his illness. His before his shift and resulting breach of the policies were products of his alcoholism, said the arbitrator in finding that the test for prima facie discrimination was met.
With the worker’s disability and CPR’s awareness of it established, the arbitrator found that CPR had a duty to accommodate. However, there was no evidence that the company made any effort to accommodate the worker, meaning that it didn’t prove undue hardship, the arbitrator said.
“There was an alcohol addiction, an adverse impact, and the arbitrator was pretty clear in finding that the alcoholism was a factor in the termination, so the onus shifts to the employer to prove that it fulfilled the duty to accommodate,” says Snowdon. “And there wasn't any proof – we're not evaluating were CPR’s efforts up to a point of undue hardship, there was no attempt to accommodate at all and the employer went straight to a disciplinary system as opposed to an accommodation system.”
Zero-tolerance policy
“The employer treated it essentially as a zero-tolerance or an automatic sanction, but zero-tolerance policies are unlikely to be upheld if they're challenged because they fail to meet the accommodation requirements that human rights law puts to employers,” adds Snowdon.
The arbitrator found that the worker “demonstrated a sincere, concerted and substantial effort to rehabilitate,” so accommodation efforts likely would have had good results. CPR was ordered to reinstate the worker with no loss of seniority but no compensation for any lost wages, although the arbitrator noted that “there will clearly need to be multiple measures put in place to ensure that he can perform his role safely.”
“It's possible that through the [accommodation] process, CPR could have got to a point of undue hardship - different circumstances could have led to the same conclusion, termination of employment,” says Snowdon. “The employer should have taken those steps to at least examine what accommodation would potentially look like and tried to work through it, rather than just deciding it was a breach of policy and terminating without that additional accommodation effort.”
