If an employee has a chance to come clean without penalty before causing a workplace accident, should there be a duty to accommodate afterwards?
By Jeffrey R. Smith
An employer’s duty to accommodate can extend pretty far if an employee suffers from a disability that’s protected under human rights legislation. The need for accommodation exists when an employer’s rules, policies or practices place an employee at a disadvantage compared to other employees, as a result of the employee’s disability. When the employer is or should be aware of a disability, the duty to accommodate to the point of undue hardship kicks in.
Determining what the point of undue hardship is can be difficult and is different for every case, but it basically means accommodation as far as is possible where it doesn’t significantly harm the employer and is feasible. This doesn’t just mean it’s difficult for the employer, as many employers may hope. There have been many cases where employers have been found to have not lived up to their duty to accommodate because it got too difficult and they determined that was it, but, alas, there was still more they could have done to investigate options. Accommodation is likely going to be hard, but it must pursued until it’s impossible.
Accommodation efforts generally have to be considered once there’s an inkling of a disability. The employee also has a duty to participate in the process and usually must request accommodation for the employer’s duty to kick in – unless there are obvious signs the employer should have picked up on and creating an “ought to have known” situation. If the employee doesn’t participate, that can sometimes relieve the employer of the duty to accommodate.
An Alberta mining company found itself in an interesting situation when an employee got into an accident with one of its big hauler trucks. Post-incident testing revealed the employee had cocaine in his system. The company had an alcohol and drug policy that allowed employees who thought they might have addictions to proactively seek help through the company’s employee assistance plan with no disciplinary action, as long as they did so before anything happened at work. If they did so after a workplace accident, the policy made it clear discipline and possibly dismissal could result, since the workplace was dangerous and all positions were safety sensitive. The company wanted to prevent workplace accidents caused by intoxicated employees.
The employee was dismissed and the union challenged the dismissal because the employee complained he didn’t take advantage of the policy earlier because he didn’t think he had a problem. After the truck crash, the employee realized he may have a cocaine addiction and sought help and reinstatement.
The Alberta Human Rights Tribunal and two appeal courts found there was no discrimination because the company’s policy gave equal treatment to every employee, whether addicted or not. They all had the chance to seek help and if they did so, they suffered no disadvantage. The policy also provided the same opportunity for addicts as well as drug users who weren’t addicted. The employee made a conscious decision to conceal his drug use, so it wasn’t a situation where the addiction controlled his actions and he was a slave to his disability, said the courts.
Essentially, the company dismissed the employee because he breached the alcohol and drug policy, not because of his drug addition, said the tribunal, with support from the appeal courts. The policy was sufficient accommodation for an employer with significant safety concerns. See Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225 (Alta. C.A.).
A proactive alcohol and drug policy can serve as effective accommodation. Like that of the employer above, there needs to be participation from employees for such a policy to serve its purpose – provide help for employees with a drug addiction disability and ensure a safe workplace. But it can be fine balance if an addiction disability affects an employee’s judgment.
In the case above, there was a dissenting judge who felt the employee’s disability played a role in his breach of the policy and therefore the dismissal. It can be a fine line. When it comes to addiction, should any decision the employee makes be considered unaffected by it?