This blog is written by our articling student, William Caven
People are often surprised to find out that employers do NOT have an automatic right to fire someone or terminate employees with addictions if they suffer from an addiction to drugs or alcohol. Under what caselaw refers to as the “duty to accommodate,” once an employer becomes aware that an employee suffers from some form of addiction, one that impedes their job performance because of absenteeism or onsite behavior, they cannot immediately fire that worker. Rather, it is accepted that the employer has the duty to accommodate the addicted employee, for no other reasons than simply because their addiction is considered a “disability” under the Ontario Human Rights Code.
However, the duty to accommodate is not endless. Employers are not expected to stand in the position of natural support groups like family and friends. A line must be drawn somewhere, and that line is typically called “undue hardship,” or when the continued efforts to accommodate an employee with an addiction become too much to bear.
The Toronto Transit Commission dealt with a situation regarding the termination of an addicted employee last year. The employee – who will not be named, but the full text of his decision can be read here – had a long history of struggling with drug and alcohol addiction. Since starting work at the TTC in 1998 as a rack worker and janitor, his addiction issues became a significant problem for his employers. Beginning in 2004, he racked up a significant disciplinary record including insubordination, absenteeism, lateness, and failure to provide medical reasons for missing work. Despite this, the TTC took great strides to accommodate his issues, including providing sick benefits to cover the cost of his rehab programs. Eventually the employee was asked to sign a “last chance agreement,” and yet despite frequently breaching the conditions of this agreement, the TTC continued to accommodate him.
Finally, things came to a head one day in September 2009. The employee had called his foreperson to advise he would be late for work. The foreperson noticed the employee’s speech was slurred and he was incoherent. Suspecting the employee was intoxicated, the foreperson met the employee upon his late arrival for work, along with several Transit Constables and another supervisor. The employee was described as follows: “his eyes were glassy, his pupils dilated, and he was waving his arms around and quacking like a duck. He was disheveled, fidgety and restless, unsteadily pacing the floor while talking to himself in slurred speech.” The employee was sent home and, three weeks later, his employment was terminated.
The employee appealed his termination and that grievance was heard by Arbitrator Robert Howe of the Ontario Labour Relations Board between March 2011 and July 2012. In his decision rendered August 3, 2012, Arbitrator Howe found that the TTC had been justified in terminating the employee due to their extensive efforts to accommodate his addiction. Finding that it would constitute undue hardship on the TTC to give the employee his job back, Arbitrator Howe wrote how the TTC had already borne significant financial and management resource costs to accommodate the employee’s addiction and related behavior.
There is, however, some very interesting subtext to Arbitrator Howe’s decision. First, it is important to note that the reason of undue hardship was not the primary reason he chose not to overturn the TTC’s decision to terminate the employee. Rather, he felt he was precluded from making such a decision, because the employee was a member of a union and subject to a collective bargaining agreement. The penalty the TTC had enforced – termination – was specifically permitted in cases where an employee showed up for work intoxicated. Moreover, Arbitrator Howe actually wanted to give the employee his job back, writing at the end of his decision that “[i]f I have the power to decide this case on compassionate grounds, I would be inclined to reinstate the griever… under very strict conditions, as the prospect of continued employment with the Commission would provide the grievor (sic) with an additional incentive to remain clean…”
It should also be borne in mind that searching for a precise definition of “undue hardship” will lead to a Quixotic saga through the annals of recent and antiquated Canadian employment caselaw. However, perhaps Justice Deschamps of the Supreme Court said it best, writing:
“The test is not whether it was impossible for the employer to accommodate the employee’s characteristics. The employer does not have a duty to change working conditions in a fundamental way, but does have a duty, if it can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to do his or her work. Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided.”
For other employment grievance decisions relating to the termination of employees because of addiction, see this case and this case. For further information or assistance in regards to terminating employees with addictions, please contact one of our Toronto employment lawyers.