A man takes a drink, the drink takes a drink, the drink takes the man – Irish Proverb
What are an employer’s obligations to an employee with a substance abuse problem?
- Does an employer have to work around the employee’s periods of incapacity until the employee chooses to quit?
- Can the employer take steps to dismiss the employee?
- If so, what kind of impact might the employer face?
The answers depend on:
- what the employer knew about the employee’s situation,
- what steps the employer took, and
- the venue the employee chooses for recourse, if they choose to contest their dismissal.
The Duty to Inquire and to Accommodate
Substance abuse is a disability under human rights law, requiring the employer to accommodate an employee to the point of undue hardship. The duty to accommodate can be triggered in multiple ways: the employee may ask for accommodation, or the potential need may arise out of concerns relating to a performance or behavioral issues.
In some cases, the employer must recognize concerning conduct and ask if accommodation is needed. This “duty to inquire” is part of the employer’s legal obligation. Ignoring signs of a potential disability and not taking any action can lead to a breach of the employee’s human rights.
How to Accommodate an Employee with a Substance Abuse Issue
Fulfilling the duty to accommodate is complex. The employer must determine whether the employee is in need of accommodation, by having the employee and their treating medical professional identify the employee’s functional limitations. The employer must then compare this information to the employee’s duties to identify any areas the employee may need assistance to do their job.
For an employee with a substance abuse issue, accommodation may include providing the employee with:
- flexible hours of work,
- a leave of absence,
- time off for counselling, and/or
- expanding the employer’s benefit package to include counseling.
In Ontario Public Service Employees Union (Anagnostopoulos) v Ontario (Liquor Control Board), the duty to accommodate was satisfied by providing an employee with eight months of paid counselling, among other accommodations. In this case, the court found that these accommodations supported the employer’s decision to dismiss the employee.
Undue Hardship and Accommodation Needs
In some situations, the employer may determine that it cannot accommodate the employee without undue hardship. The employer can assert that the employee’s condition has frustrated the contract of employment and choose to end the employment relationship. If frustration of contract due to illness can be established the employer has no obligation to the employee, and employment ends.
The employee may claim that their employment was wrongfully terminated. To defend itself, the employer must show it took all steps:
- to identify the employee’s limitations,
- to assess these limitations in relation to the employee’s duties, and
- to determine it the accommodations needed were not possible without creating undue hardship.
Even then, a reviewing body may determine that the employer failed to accommodate the employee; the potential outcome is outlined below.
What if the Employee Denies Having a Problem with Substance Abuse?
The duty to accommodate arises only where the employee acknowledges the need for accommodation. If the employer fulfills its duty to inquire and the employee denies any need for accommodation, the employer may treat the employee as any other. This includes addressing any behavioural or performance issues through discipline. A best practice for an employer is to reference the availability of accommodation, and how to request it, in any disciplinary materials/documentation provided to the employee.
Dismissal of an Employee with a Substance Abuse Problem
An employer might choose to dismiss the employee rather than proceeding with accommodation. This may lead to a claim for breach of human rights, in addition to other possible claims. An employee has several venues to contest a dismissal.
Claims Through the Courts
The first option is the courts. The employee may seek their entitlement to reasonable notice at common law and damages for breach of their rights under the applicable human rights statute, and/or for the employer’s bad faith conduct.
Claims Through the Human Rights Tribunal
Alternatively, the employee can proceed through the applicable human rights tribunal, which has authority to award different remedies than the court. For example, the Human Rights Tribunal of Ontario (the “HRTO”), under the Ontario Human Rights Code (the “Code”) can award an employee with:
- lost wages,
- damages for injury due to the breach of their human rights, and
- order the employer to take steps to avoid a future breach of the Code.
Lost Wages
The duration of an award of lost wages varies. Unlike an employee’s entitlement to reasonable notice at common law, there is no twenty-four month “cap” on this amount; nor can it be limited by an enforceable employment agreement. Instead, it is at the HRTO’s discretion, to address the impact of the breach of the employee’s rights under the Code.
An award of lost wages can be from:
- the date of dismissal to the date of the hearing,
- the date the employee located employment, or
- until the date the tribunal believes the employee should have located employment.
The HRTO has awarded an employee lost wages from the date of dismissal until the employee’s intended retirement date, approximately five and a half years.
Takeaways
The reasonable accommodation process is complex. Accommodating an employee with a substance abuse issue can lead to a more complex analysis to determine what accommodations are necessary, and whether these can be implemented without creating undue hardship.
This process can be sufficiently daunting for the employer, and they may ultimately give up by dismissing the employee. This can lead to a significant financial burden for the employer, as well as the reputational impact of having a negative decision made public.
It is up to the employer how it chooses to proceed, but making an effort to reasonably accommodate the employee, even if accommodation turns out to be impossible, is usually the correct decision. The employer may find that the accommodations needed are possible, but even if they aren’t, the employer will have a defence should the matter result in litigation.
We work with employers and employees to address the reasonable accommodation process. We are here to assist you in navigating these complex legal issues, because as we always say: if you think you need an Employment Lawyer, you probably do!
