Alcoholism and drug addiction are considered disabilities. They’re serious problems and workers, employers and courts, for the most part, treat them as such. Courts have imposed an obligation on employers to help employees with addictions. But employees can’t cry wolf and simply claim to be an addict or an alcoholic because it benefits them. They need to prove they actually have an addiction that needs to be accommodated.
Alcoholism and drug addiction are considered disabilities. They’re serious problems and workers, employers and courts, for the most part, treat them as such. Courts have imposed an obligation on employers to help employees with addictions.
But employees can’t cry wolf and simply claim to be an addict or an alcoholic because it benefits them. They need to prove they actually have an addiction that needs to be accommodated.
A recent arbitration decision in Ontario shows that, if a worker isn’t co-operative and refuses to provide any medical evidence, then the employer might very well have grounds to terminate the employment relationship.
A bizarre case
A few years ago Shelley Martel, a provincial New Democratic Party MPP in Ontario, infamously offered to take a lie detector test to prove she was telling the truth about lying previously. An arbitrator recently recounted that story in a ruling involving a worker who took a drug test to prove he was an addict. But the drug test proved anything but, as it came back negative for virtually all drugs.
The worker was a 25-year-old unionized pipe fitter at National Steel Car Ltd. He had been on the job for about nine months when he went off work on May 20, 2005. On that day he went to his supervisor and confessed, stating that he was in no condition to work and that his life was out of control due to drug use.
The supervisor, quite correctly in the arbitrator’s view, chose not to probe the issue further, booked him off work and advised him to see his doctor to get whatever help he needed. The worker remained off work thereafter and, despite several assurances that he would do so, never provided any medical information or documentation certifying his absence for medical reasons.
Worker terminated
He was eventually terminated on Oct. 17, 2005. He filed a grievance, alleging the termination was improper. The worker claimed his five-month absence was related to drug abuse and that he was an addict and partying during that time. He financed his habit during this period with a $15,000 lump-sum settlement he received relating to a workplace injury at Dofasco, his previous employer.
But, as the arbitrator pointed out, there simply wasn’t any evidence to prove the worker actually was a drug addict.
“Drug addiction is now generally recognized as an illness, but there was no evidence of addiction or treatment from a medical doctor or any other professional dealing in substance abuse,” the arbitrator said. No one at the hearing attested to ever seeing the worker take drugs or be under the influence of drugs.
The arbitrator had no doubt the worker had used drugs for the past several years, but that wasn’t enough to show an addiction.
“Even relatively excessive drug use is no more evidence of drug addiction than relatively heavy drinking is of alcoholism,” the arbitrator said. “Alcohol and drug addiction are now generally considered to be an illness and a disability under the Ontario Human Rights Code. However, claims of alcoholism or drug addiction after an employee has been terminated are looked at by arbitrators with some degree of skepticism.”
A ‘relatively heavy’ onus
That’s because the worker must meet a “relatively heavy” onus and prove, by way of cogent, objective evidence (as opposed to subjective, self-serving declarations) that he suffers from drug addiction, the arbitrator said.
“That onus is discharged by producing medical evidence establishing an addiction or compulsive, long-standing drug use as opposed to more recreational use,” the arbitrator said. “That is generally done by calling a credible medical practitioner who has a professional understanding of drug dependency and who has treated the (worker) at the relevant time. Self-serving declarations of drug addiction have, almost universally, been rejected as proof of drug dependency.”
The worker said he did not talk to his doctor about his drug use at the relevant time and did not enter any drug treatment program.
The arbitrator said one of the more bizarre aspects of this case involved the drug test provided by the worker in October 2005.
“Notwithstanding that the (worker) said at the hearing that he has essentially been using drugs all along and is still using drugs and is not ready to go back to work without undergoing some type of treatment first, he produced a drug test showing negative for virtually all drugs,” the arbitrator said. “Therefore, contrary to proving his claim of drug addiction, the drug test which he initiated and produced would, on its face, indicate that he is not.”
The arbitrator pointed out that the union in this case was probably just as shocked by anyone.
“I am quite confident that the (worker) presented (the union) with more than a few surprises during his testimony,” the arbitrator said. “Not the least of those were his admissions that he is an inveterate liar and has been lying to his employer virtually from the first day of his employment through this hearing and, also, that he is still using drugs and not ready to return to work.”
The arbitrator upheld the worker’s dismissal.
For more information see:
• National Steel Car Ltd. v. U.S.W.A., Local 7135, 2006 CarswellOnt 1100 (Ont. Arb. Bd.)
‘Addiction must be clearly established’
In National Steel Car Ltd., the arbitrator said the employee simply didn’t prove he actually had a drug habit, following previous rulings that said medical evidence is essential in establishing a claim of drug addiction.
In Great Atlantic & Pacific Co. of Canada Ltd. v. Retail Wholesale Canada, U.S.W.A., Loc. 412, a 1997 ruling, the arbitrator said:
“Excessive drug or alcohol use does not necessarily imply that the individual is an addict, in whom volition has given way to physical and emotional need for the use. Medical evidence of addiction is mandatory in order for the situation to be viewed as one in which the employee suffers from an illness or disease. Addiction must be clearly established by the evidence if the union seeks to rely upon illness or disease as the root of the problem.”
The arbitrator who made the ruling in National Steel Car Ltd. also dealt with a similar issue in Chatham Public General Hospital v. S.E.I.U., Local 210, a 1991 ruling:
“The (worker’s) claim of alcoholism after the fact is obviously self-serving and arbitrators universally require some objective corroboration in these circumstances. Indeed, if one accepts (as most everyone now does) that alcoholism is an illness, some type of medical confirmation of that illness has now come to be expected. Absent competent medical evidence, there must, at the least, be some other objective evidence indicating alcoholism. Simply declaring oneself an alcoholic does not make it so and chronic lateness for work is not, per se, any indicia of alcoholism.”
For more information see:
• Great Atlantic & Pacific Co. of Canada Ltd. v. Retail Wholesale Canada, U.S.W.A., Local 414, 1997 CarswellOnt 5667, 38 C.C.E.L. (2d) 291 (Ont. Arb. Bd.)
• Chatham Public General Hospital Society v. S.E.I.U., Local 210, (1991) 23 L.A.C. (4th) 35 (Ont. Arb. Bd.)
Addiction lessons from Imperial Oil
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.
This text about the Entrop case was excerpted from an article written by Jeffrey Miller in the Aug. 6, 2003, issue. For more information, click on the link below:
Addiction in the workplace
But employees can’t cry wolf and simply claim to be an addict or an alcoholic because it benefits them. They need to prove they actually have an addiction that needs to be accommodated.
A recent arbitration decision in Ontario shows that, if a worker isn’t co-operative and refuses to provide any medical evidence, then the employer might very well have grounds to terminate the employment relationship.
A bizarre case
A few years ago Shelley Martel, a provincial New Democratic Party MPP in Ontario, infamously offered to take a lie detector test to prove she was telling the truth about lying previously. An arbitrator recently recounted that story in a ruling involving a worker who took a drug test to prove he was an addict. But the drug test proved anything but, as it came back negative for virtually all drugs.
The worker was a 25-year-old unionized pipe fitter at National Steel Car Ltd. He had been on the job for about nine months when he went off work on May 20, 2005. On that day he went to his supervisor and confessed, stating that he was in no condition to work and that his life was out of control due to drug use.
The supervisor, quite correctly in the arbitrator’s view, chose not to probe the issue further, booked him off work and advised him to see his doctor to get whatever help he needed. The worker remained off work thereafter and, despite several assurances that he would do so, never provided any medical information or documentation certifying his absence for medical reasons.
Worker terminated
He was eventually terminated on Oct. 17, 2005. He filed a grievance, alleging the termination was improper. The worker claimed his five-month absence was related to drug abuse and that he was an addict and partying during that time. He financed his habit during this period with a $15,000 lump-sum settlement he received relating to a workplace injury at Dofasco, his previous employer.
But, as the arbitrator pointed out, there simply wasn’t any evidence to prove the worker actually was a drug addict.
“Drug addiction is now generally recognized as an illness, but there was no evidence of addiction or treatment from a medical doctor or any other professional dealing in substance abuse,” the arbitrator said. No one at the hearing attested to ever seeing the worker take drugs or be under the influence of drugs.
The arbitrator had no doubt the worker had used drugs for the past several years, but that wasn’t enough to show an addiction.
“Even relatively excessive drug use is no more evidence of drug addiction than relatively heavy drinking is of alcoholism,” the arbitrator said. “Alcohol and drug addiction are now generally considered to be an illness and a disability under the Ontario Human Rights Code. However, claims of alcoholism or drug addiction after an employee has been terminated are looked at by arbitrators with some degree of skepticism.”
A ‘relatively heavy’ onus
That’s because the worker must meet a “relatively heavy” onus and prove, by way of cogent, objective evidence (as opposed to subjective, self-serving declarations) that he suffers from drug addiction, the arbitrator said.
“That onus is discharged by producing medical evidence establishing an addiction or compulsive, long-standing drug use as opposed to more recreational use,” the arbitrator said. “That is generally done by calling a credible medical practitioner who has a professional understanding of drug dependency and who has treated the (worker) at the relevant time. Self-serving declarations of drug addiction have, almost universally, been rejected as proof of drug dependency.”
The worker said he did not talk to his doctor about his drug use at the relevant time and did not enter any drug treatment program.
The arbitrator said one of the more bizarre aspects of this case involved the drug test provided by the worker in October 2005.
“Notwithstanding that the (worker) said at the hearing that he has essentially been using drugs all along and is still using drugs and is not ready to go back to work without undergoing some type of treatment first, he produced a drug test showing negative for virtually all drugs,” the arbitrator said. “Therefore, contrary to proving his claim of drug addiction, the drug test which he initiated and produced would, on its face, indicate that he is not.”
The arbitrator pointed out that the union in this case was probably just as shocked by anyone.
“I am quite confident that the (worker) presented (the union) with more than a few surprises during his testimony,” the arbitrator said. “Not the least of those were his admissions that he is an inveterate liar and has been lying to his employer virtually from the first day of his employment through this hearing and, also, that he is still using drugs and not ready to return to work.”
The arbitrator upheld the worker’s dismissal.
For more information see:
• National Steel Car Ltd. v. U.S.W.A., Local 7135, 2006 CarswellOnt 1100 (Ont. Arb. Bd.)
‘Addiction must be clearly established’
In National Steel Car Ltd., the arbitrator said the employee simply didn’t prove he actually had a drug habit, following previous rulings that said medical evidence is essential in establishing a claim of drug addiction.
In Great Atlantic & Pacific Co. of Canada Ltd. v. Retail Wholesale Canada, U.S.W.A., Loc. 412, a 1997 ruling, the arbitrator said:
“Excessive drug or alcohol use does not necessarily imply that the individual is an addict, in whom volition has given way to physical and emotional need for the use. Medical evidence of addiction is mandatory in order for the situation to be viewed as one in which the employee suffers from an illness or disease. Addiction must be clearly established by the evidence if the union seeks to rely upon illness or disease as the root of the problem.”
The arbitrator who made the ruling in National Steel Car Ltd. also dealt with a similar issue in Chatham Public General Hospital v. S.E.I.U., Local 210, a 1991 ruling:
“The (worker’s) claim of alcoholism after the fact is obviously self-serving and arbitrators universally require some objective corroboration in these circumstances. Indeed, if one accepts (as most everyone now does) that alcoholism is an illness, some type of medical confirmation of that illness has now come to be expected. Absent competent medical evidence, there must, at the least, be some other objective evidence indicating alcoholism. Simply declaring oneself an alcoholic does not make it so and chronic lateness for work is not, per se, any indicia of alcoholism.”
For more information see:
• Great Atlantic & Pacific Co. of Canada Ltd. v. Retail Wholesale Canada, U.S.W.A., Local 414, 1997 CarswellOnt 5667, 38 C.C.E.L. (2d) 291 (Ont. Arb. Bd.)
• Chatham Public General Hospital Society v. S.E.I.U., Local 210, (1991) 23 L.A.C. (4th) 35 (Ont. Arb. Bd.)
Addiction lessons from Imperial Oil
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.
This text about the Entrop case was excerpted from an article written by Jeffrey Miller in the Aug. 6, 2003, issue. For more information, click on the link below:
Addiction in the workplace
