Addiction is a disability like any other

Alcohol and drug addiction are considered by the Ontario Human Rights Code to be a disability on the same footing as any physical impairment.  The Code requires employers to accommodate disabilities to the point of undue hardship.  My experience is that with addiction issues that accommodation is primarily related to absences and punctuality issues.  Although it happens, people showing up under the influence is not usually the problem.

If you are an employer and you knew or ought to have known that an employee’s absences were related to an addiction issue, firing them out of hand may land you in hot water. If there is reasonable grounds to suspect that it is an addiction issue you need to sit the employee down and ask them.  If they deny it, proceed with the termination as planned. If they acknowledge the problem, you need to think about what you can do to accommodate them.  That usually involves giving the employee a leave of absence so they can obtain treatment. It means researching any support your benefits insurer will provide.  Depending on the size of the employer some case indicates that the company may be responsible for paying the costs of a rehabilitation program.

For some employees, that time off and support for rehabilitation does the trick. For some it does not.
If they return to work and the absentee and punctuality issues continue they may be asked to sign a Last Chance Agreement.  That is a usually lengthy document that lays out specific and particular expectations of the employer.  The employee is required to sign the document to be permitted  to work.  They have to agree that if they do not meet the expectations laid out in writing, usually with respect to attendance, they can be terminated without notice.

Often, employers jump to a Last Chance Agreement too early in the process. It is not appropriate to ask an employee to sign a Last Chance Agreement unless their performance has been so bad that in the absence of a disability there would be just cause to terminate them without any notice.  Even if the employee signs and agrees, if the Last Chance Agreement should not have been proffered in the first place it is void and the Ontario Human Rights Tribunal will ignore it.

Expectations must not be put on employees that are higher than their colleagues. In 2 cases an employee was asked to sign agreeing that if they did not maintain at least the average attendance level of the plant they could be fired without notice.  They successfully challenged their terminations because the higher expectation was discriminatory; the non-disabled could have a worse attendance record and keep their jobs. 

At the end of the day employers have an obligation to accommodate to the point of undue hardship.  Undue hardship is determined on a very case by case basis and is what lawyers call “fact specific”.  Having a Last Chance Agreement signed does not excuse an employer from doing everything they can to assist their addicted employee.
 
The temptation to view addiction as a disability less worthy of accommodation than others comes from our Victorian prudery. Think of all the pejorative terms you have used in your life to describe someone you thought consumed too much alcohol. We are, almost all of us, guilty. We view addiction as a self-inflicted bad choice rather than the disability it is that is in need of treatment. At every step in accommodation employers should reflect and ensure their choices are not influenced by outdated prejudices.


 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com