When an employee is facing addiction issues to drugs and/or alcohol and impacting their own safety as well as that of their colleagues, is a difficult issue for the worker and the employer alike.
The basic premise of human rights law is that an employer cannot treat an employee unfairly because of an addiction, as this is considered a disability under the human rights regime.
Once a disability is proven, the employer must accommodate to the point of “undue hardship”, which is generally considered a difficult burden for the employer to overcome.
To make matters even more complex for the company, an employer is not permitted to treat the employee adversely because it believes the employee has an addiction, even if they do not.
This Theory in Practice
A recent human rights case reveals these issues in real life. To give away the ending in advance, the employee recovered a lost wage claim of 16 months and compensatory damages for emotional suffering of $25,000.
The case all started when the employee, a Journeyman Millwright Assembler, tested positive for drug use at work. He was immediately removed from work, without pay, and asked to attend an assessment with a substance abuse professional. (“SAP”). After meeting, the SAP recommended a residential treatment program on the basis that the employee was at high risk for a severe substance abuse problem with respect to alcohol and drugs.
The employee denied the addiction but agreed to comply with this recommendation to preserve his employment status. He then applied for and was rejected by a residential treatment program.
He next requested an outpatient program to which the employer said no. He then filed this human rights complaint. While off work, he made an independent review with a second SAP, who concluded he did not meet the test for an addictive disorder. He then returned to work, by which time he had been absent for 16 months.
He was successful in this case, not because he had an addiction, which the employee had always denied, but because the employer treated him as if he had such a disability. Again, in human rights law, the perception by the employer that the employee has a disability, in this case, an addiction, violated Ontario’s Human Rights Code.
Once he had successfully demonstrated a violation, then the employer was obliged to show accommodation of this situation. The fact that the company refused to allow the employee to attend an outpatient program was fatal to the case, as this showed such a failure to accommodate.
On the positive side for the employer, at least in the abstract, was the conclusion made by the tribunal that the employer was not required to wait for a workplace event, such as an accident, to take action.
This is a very difficult issue for the employer. Management must proceed cautiously, even when the best interests of the company are apparently at risk.
This case shows that a positive drug test need not be a death knell for an employee. No one encourages drug use at work. But should this happen, and should you be an addict, the best course may be to admit it, agree to seek treatment and do so. If you are not an addict, then it will depend on the context as to what action should be taken.
Get Advice and Know Your Rights
For advice on this issue and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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