Addiction in the workplace

The employer’s duty to accommodate

Background

Canadian law defines alcoholism and many other addictions as illnesses. Under human rights legislation, this makes them “disabilities” or “handicaps.” Generally speaking, employers have a duty to reasonably accommodate employees with disabilities, including employees with substance abuse problems.

Usually the law requires that employers attempt to help the workers rehabilitate themselves and hold onto their jobs. However, the employer does not have a duty to accommodate the worker to the point of “undue” or “unreasonable” hardship. That is, if the only available methods of accommodation interfere unreasonably with the employer’s operations, the employer can terminate the alcoholic or addict “for cause.”

Still, as the Chopra case shows below, the employer’s duty to assist can be quite extensive, particularly among larger employers with significant resources.

The case: Chopra v. Syncrude Canada Ltd.

His supervisors described Viney Chopra as “one of the most technically proficient electrical engineers in the company.” Chopra had worked at Syncrude Canada in Fort McMurray, Alta., for 14 years, and early retirement was on the horizon for him, only eight months away.

Then Chopra’s alcoholism and depression flared up big-time in the workplace. First, he was found drunk at the wheel of his car in the company lot. Chopra’s supervisors held a termination meeting with him, but decided to try to help him rehabilitate himself. Chopra accepted a mandatory referral to Syncrude’s employee assistance program, and he promised never to violate its workplace drug and alcohol policy again. As well, he agreed to get permission before taking time off.

Just 10 days later, a supervisor noticed the smell of alcohol on Chopra’s breath. The supervisor asked Chopra to accompany him to Syncrude’s medical centre. Instead, Chopra fled the building and phoned in sick.

Shortly thereafter, Chopra was kicked out of the residential treatment program on suspicion that he had been drinking over the weekend. However, he eventually completed the full 45-day regime, and his doctor reported that it had helped Chopra’s depression and addiction.

Then, Chopra seemed to fall off the wagon again, phoning in sick with slurred speech. He agreed in writing to stricter monitoring, including random drug and alcohol testing.

About three weeks later, Chopra attended a computer course that Syncrude provided during work hours. The instructor noticed that Chopra smelled of drink and was not following instructions. Chopra left the course two hours early, but a human resources officer found him in the building, apparently impaired. Chopra tested positive for alcohol consumption and Syncrude fired him.

Chopra unsuccessfully appealed his termination, although Syncrude continued his medical benefits so that he could take counselling. In a wrongful dismissal suit against Syncrude, Chopra complained that his former employer had not gone far enough to accommodate his illness. His most innovative argument asserted that he was entitled to 260 days of short-term disability leave, which Syncrude should have offered him. He contended that his early retirement would have kicked in near the end of that period, had Syncrude shown compassion in providing the leave.

But the Alberta Court of Queen’s Bench ruled that Syncrude had done its duty. Chopra knowingly had breached the company’s policies as well as his rehabilitation agreements. Only if Chopra had been in a treatment program, the court found, did Syncrude’s policy require the company to offer him disability leave. Syncrude had already paid for Chopra to attend one program that did no long-term good, and not even Chopra’s own doctor had recommended another program.

The court noted that disability leave was not meant as a form of bridge financing. “To suggest that Mr. Chopra should have been put on temporary disability with the primary purpose of getting him to his early retirement date, and without any medical indication that it would help him recover, would be an abuse of the benefit... . There was no reasonable prospect that further accommodation would have restored his ability to comply with Syncrude’s drug and alcohol policy in a reasonable time.”

For more information:

Chopra v. Syncrude Canada Ltd., 2003 CarswellAlta 813 (Alta. Q.B.)

Syncrude did everything right

The Chopra case highlights an employer who did just about everything right in “reasonably accommodating” an employee with a substance-abuse illness.

Note that Syncrude (the employer) never “over-accommodated,” so to speak, or turned a blind eye so as to “condone” Chopra’s substance abuse: Chopra always knew that he was expected to comply with company policy.

Where an employer reacts ambivalently or with wilful blindness, this can lull the employee into a sense of complacency or an expectation that the offending conduct will be tolerated. An ambivalent employer who suddenly gets fed up and acts more vigorously to discipline the employee may well find itself paying damages in a wrongful dismissal lawsuit. The employee could argue that the employer’s lackadaisical attitude “lulled” him into a false sense of security.

In Chopra, Syncrude successfully accommodated a substance-abuse situation by:

•Having a clearly-posted drug and alcohol policy.

•Providing the employee clear, written warnings that his employment was in jeopardy if he did not work with the employer in addressing the problem.

•Asking the employee to sign fair agreements that he would respect the workplace policy, attend appropriate therapy or counselling, and submit to testing.

•Remaining firm while attempting to accommodate relapses — making the employee aware that his job was increasingly in jeopardy if he failed to cooperate with reasonable demands of compliance and rehabilitation.

•Making certain that the employee and workplace were monitored for the safety and comfort of all workers.

Note that while freedom from the effects of drugs or alcohol can be a “bona fide occupational requirement” (a genuine pre-requisite for the job), the employer is still obliged to reasonably accommodate the worker who fails to meet such a requirement.

This in-depth look at accommodating substance abuse was provided by Jeffrey Miller, a Toronto writer, lawyer, and translator. His latest books are Where There’s Life, There’s Lawsuits: Not Altogether Serious Ruminations on Law and Life and Ardor in the Court! Sex and the Law. Web site: www.jeffreymiller.ca.

Case of note

Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18]

In 2000, Ontario’s highest court provided a comprehensive statement on workplace substance abuse policies and reasonable accommodation. Imperial Oil’s drug and alcohol policy required that employees in safety-sensitive positions undergo unannounced, random alcohol and drug testing. A positive test or other policy violation led to automatic dismissal.

Martin Entrop held one of the safety-sensitive jobs. As Imperial’s policy required, he disclosed he once had been an alcoholic but added that he had not touched alcohol in seven years. Nonetheless Imperial immediately re-assigned Entrop to less sensitive work.

Entrop complained to the Ontario Human Rights Commission and Imperial amended its policy. If employees like Entrop agreed to undergo strict monitoring, including random drug testing, they could be reinstated to safety-sensitive jobs.

The court formally recognized alcoholism as a “handicap” under human rights legislation. It also affirmed Imperial’s right to require employees to be mentally unimpaired at work.

But it noted a positive drug test did not show a person was incapable of performing a certain job — only that some drug residue was in the worker’s body. The court agreed some employers could justify such serious intrusions into personal privacy where safety or security was a significant concern. But it still required that employers reasonably accommodate those who tested positive. Immediate dismissal for failing a random drug test could be too draconian in many circumstances.

The court found Imperial’s policy unlawful where it called for automatic reassignment of employees with a history or symptoms of substance abuse. And the judges gave the thumbs-down to Imperial’s mandatory conditions for reinstatement, considering that the requirements were not tailored to individual circumstances and therefore could be more severe than was necessary in any given case.

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