Addiction as a Mental Disability

Misconduct, Causation and the Duty to Accommodate

Addiction to alcohol or drugs may constitute a mental disability protected by human rights legislation. That proposition, however, is only the beginning of the analysis.

Misconduct

Addiction cases frequently arise after serious workplace misconduct: intoxication at work, theft, dishonesty, threats, violence, absenteeism or a breach of a drug-and-alcohol policy. The difficult question is whether the employee was dismissed because of the protected disability or because of misconduct that was legally distinct from the disability.

The employer must also determine whether it knew, or reasonably ought to have known, that addiction may have influenced the employee’s conduct. Where the necessary connection exists, the employer must investigate accommodation to the point of undue hardship. That obligation does not require the employer to tolerate intoxication, violence or an unacceptable safety risk.

It is important to distinguish employer knowledge from the test for prima facie discrimination. In an adverse-effects case, knowledge is not an additional fourth element of the discrimination test. The protected disability need only be a factor in the adverse impact. Employer knowledge remains particularly important, however, in determining whether a duty to inquire and accommodate arose before discipline or termination.

The cases therefore require a careful separation of four issues:

1. Did the employee have an addiction amounting to a disability?
2. Did the addiction contribute to the conduct relied upon by the employer?
3. Did the employer know, or ought it reasonably to have known, of that possible connection?
4. Could the employee be accommodated without undue hardship?

Addiction and workplace misconduct are not necessarily the same thing

The fact that an employee has an addiction does not mean that every act committed by the employee is disability-related.

The established approach distinguishes between the addiction itself and conduct that may support, conceal or finance the addictive habit. An employer may be entitled to discipline an employee for misconduct even though addiction forms part of the factual background. ¹

The leading case on this distinction is Gooding, which involved an employee who admitted stealing the employer’s property and asserted that the theft was related to alcohol dependency.

The Court of Appeal found that the evidence did not establish that alcohol dependency in the employer’s decision to terminate. The dismissal was based on theft. The fact that addiction may result in deteriorating judgment, ethical behaviour or greater temptation did not, without more, establish that the protected disability was a factor in the termination.

An admitted addiction does not automatically convert all related misconduct into disability discrimination. The evidence must establish that the addiction contributed to the adverse impact, whether by affecting the employee’s conduct, impairing the employee’s capacity to comply with a workplace rule, or otherwise playing a role in the adverse employment decision.

The decision was remitted to the arbitrator to determine the appropriate disciplinary consequence for the misconduct. The significant point for human rights purposes was that addiction and theft were not treated as legally interchangeable.

Was the Addiction a Factor ?

To establish prima facie discrimination, the employee must show that the protected disability was a factor in the adverse treatment. It need not be the only or dominant factor, but there must be more than a historical or background relationship.

The Supreme Court of Canada expressly rejected the addition of qualifying adjectives such as “significant” or “material” to this requirement. The governing question is simply whether the protected characteristic contributed to the adverse treatment. If it did, it was a factor for human rights purposes. ²

The question is not simply whether:

• the employee had an addiction;
• the employee committed misconduct; and
• the employer terminated employment.

The employee must establish that addiction contributed to the adverse impact. This may be shown by evidence that addiction affected the conduct relied upon, impaired the employee’s capacity to comply with the workplace rule, or otherwise played a role in the termination.

The mere existence of addiction in the factual background is insufficient. At the same time, the employee is not required to prove a heightened or especially close causal nexus. Whether addiction was a factor is a fact-specific determination made from the whole of the evidence.

A finding of arbitrary or stereotypical decision-making is also not a separate requirement for prima facie discrimination. Evidence of stereotyping may be relevant, but the legal test remains whether the protected disability was a factor in the adverse impact.

Stewart v Elk Valley Coal Corp.

The decision originally brought in the name of Brent Bish on behalf of Ian Stewart was indexed by the Alberta Court of Appeal and the Supreme Court of Canada as Stewart v Elk Valley Coal Corp. ³

Stewart worked in a safety-sensitive position at a coal mine. The employer’s drug and alcohol policy required employees to disclose a dependency or addiction before a significant workplace incident occurred. An employee who disclosed before such an event could seek treatment without discipline. Disclosure after an accident did not prevent discipline or termination.

Stewart used cocaine while off duty. He did not disclose his drug use because, before the workplace accident, he did not believe that he had a drug problem. After the accident and a positive drug test, he acknowledged that he believed he was addicted.

The Tribunal nevertheless found that Stewart had been suffering from a cocaine addiction at the material time. His failure to identify or admit the addiction before the accident did not prevent a finding that he had a protected disability.

The decisive issue was not whether Stewart had admitted his addiction. It was whether the addiction contributed to his failure to comply with the policy or otherwise played a role in his termination.

The Tribunal found that:

• Stewart knew that he should not use drugs before working;
• he retained the ability to refrain from using cocaine before work;
• he had the capacity to disclose his drug use to the employer;
• denial of his addiction did not deprive him of those capacities; and
• he would have been terminated for breaching the policy whether he was an addicted user or a casual user.

The Alberta Court of Appeal upheld the Tribunal’s finding that Stewart was terminated for violating the policy rather than because of his addiction.

The Supreme Court majority also upheld that conclusion as reasonable.

The Court did not hold as a general proposition that addiction-related conduct is always separable from the addiction. It upheld a particular factual finding that Stewart’s addiction did not impair his capacity to comply with the disclosure and abstinence requirements of the policy.

The employer was therefore entitled, on those findings, to apply the policy to Stewart’s conduct. The policy applied to both casual and addicted users, and the Tribunal found that Stewart retained the ability to comply with it.

Whether addiction was a factor in the adverse impact is a fact-specific determination. It requires the decision maker to apply the legal test to the evidence concerning the employee’s addiction, conduct, capacity to comply and the operation of the workplace rule.

Capacity to comply with the workplace rule

The employee’s capacity to comply with the workplace rule is often central.

An employee may have an addiction while remaining capable of:

• reporting drug or alcohol use;
• attending treatment;
• complying with an abstinence agreement;
• reporting an impairment concern;
• refraining from theft or dishonesty; or
• following a safety policy.

In such a case, the employer may be disciplining a voluntary breach rather than conduct caused by disability.

In other cases, addiction may substantially impair the employee’s ability to comply. The breach may then be inseparable from the disability.

The Supreme Court described these cases as falling along a factual spectrum. In some cases, a person with an addiction may be fully capable of complying with workplace rules. In others, the addiction may effectively deprive the employee of that capacity, making the breach inextricably connected with the addiction. Many cases will fall somewhere between those two extremes.

Residual control does not create a universal rule against discrimination claims. The relevant factual question is what capacity the particular employee retained and whether the addiction nonetheless contributed to the conduct or adverse impact.

The majority accepted the Tribunal’s factual finding that Stewart remained capable of complying with the policy.

Two judges, Moldaver and Wagner JJ., disagreed on this point. They concluded that Stewart’s residual control reduced the extent to which addiction contributed to his termination but did not eliminate addiction as a factor. They nevertheless agreed that the appeal should be dismissed because the employer had accommodated Stewart to the point of undue hardship.

Justice Gascon dissented and would have found both prima facie discrimination and a failure to accommodate.

The divided reasons reinforce that Stewart should be applied as a fact-specific authority, not as a blanket rule that termination for breach of a drug policy is necessarily unrelated to addiction.

Kvaska: Addiction Impaired the Capacity to Comply

This distinction was important in Kvaska v Gateway Motors (Edmonton) Ltd., 2020 AHRC 94.

Kvaska attended work severely intoxicated and behaved belligerently. The employer maintained an implied rule prohibiting employees from attending work while impaired. That rule was entirely legitimate, particularly because the position involved dealing with the public and operating vehicles.

The Tribunal nevertheless found that Kvaska’s alcohol addiction impaired his ability to comply with the rule. He knew that the employer prohibited intoxication, feared losing his job, recognized that he needed help, investigated rehabilitation and obtained disability forms, but continued drinking heavily and attended work intoxicated.

The Tribunal distinguished the circumstances from cases in which the employee retained the ability to comply with a disclosure policy. In Kvaska’s case, the addiction affected his capacity to comply with the rule that directly resulted in his dismissal.

This distinguished Kvaska from Stewart. Stewart retained the capacity to comply with the disclosure rule. Kvaska’s addiction was found to have impaired his ability to comply with the rule against attending work intoxicated.

The correct question is therefore not simply whether the rule was reasonable. The question is whether the disability affected the employee’s ability to comply with it.

Proving addiction

An employee does not necessarily need a contemporaneous medical diagnosis to establish addiction.

The proposition that an employee must admit the addiction before it can be recognized as a disability is not supported by the Supreme Court’s decision in Stewart. The Tribunal found that Stewart had been addicted at the relevant time despite his failure to identify himself as addicted before the accident.

In Kvaska, the employer argued that the evidence established alcohol abuse, not addiction, and emphasized the absence of complete medical records from before the termination.

The Tribunal considered the whole of the evidence, including:

• very heavy daily alcohol consumption;
• repeated visible impairment;
• continued drinking despite fear of losing employment;
• an expressed loss of control;
• efforts to obtain disability benefits and treatment;
• observations made by the employee’s spouse and coworkers;
• the severe workplace incident; and
• later medical notes and rehabilitation treatment.

The totality of the evidence established alcohol addiction. Medical evidence was relevant but was not the only means of proving disability.

This is important because denial and reluctance to disclose are common features of addiction. An employee’s failure to use the word “addiction” is relevant, but it does not invariably determine the issue.

The employer’s duty to inquire

An employee ordinarily has an obligation to communicate a disability and the need for accommodation. An employer is not expected to diagnose every employee who engages in misconduct or appears to use alcohol or drugs.

There is, however, a duty to inquire where the employer knows, or reasonably ought to know, that disability may be affecting performance or conduct.

In Kvaska, the information available to the employer included:

• an alcohol-related driving offence;
• visible and repeated impairment;
• a warning from the finance manager about drinking at work;
• Kvaska’s questions about taking medical leave;
• his request for disability and short-term leave forms;
• severe intoxication in the workplace;
• his spouse’s statement that he had a drinking problem;
• the general manager’s response that “everybody knows”; and
• Kvaska’s direct disclosure of addiction and request for rehabilitation when the termination was communicated.

Viewed cumulatively, these facts required the employer to inquire whether addiction contributed to the conduct and whether accommodation was possible. It could not simply characterize the incident as culpable misconduct and proceed directly to dismissal.

The duty was not necessarily to accept Kvaska’s account immediately. The employer was entitled to request medical confirmation and information about his limitations, treatment needs, prognosis and ability to return safely. Its error was failing to ask.

Safety concerns remain legitimate

Recognizing addiction as a disability does not mean that an employer must leave an intoxicated or dangerous employee in the workplace.

An employer may be required to act immediately where the conduct creates a risk to:

• coworkers;
• customers;
• the public;
• equipment;
• vehicles; or
• the employee personally.

Immediate removal from active duties may be entirely appropriate. In some circumstances, it may be required by occupational health and safety obligations.

But removal from the workplace and termination of employment are different decisions.

The employer must first control the immediate danger. It must then consider whether the employment relationship can continue through leave, treatment, restrictions, modified duties or another reasonable accommodation.

Andrusiw v Westcon Precast: addiction was known

The distinction between immediate safety measures and the longer-term accommodation decision is central to Andrusiw v Westcon Precast Inc., 2025 AHRC 128.

Andrusiw had worked for the family-owned company since 2001 and had become a managing partner and director. He was sent home after management believed that he attended work under the influence of alcohol. The employer later discontinued his pay and purported to terminate his employment.

Unlike a conventional duty-to-inquire case, the employer’s awareness of addiction was clear.

Management:

• believed Andrusiw had attended work after drinking;
• referred to him as an alcoholic;
• stopped his pay in an effort to force him into treatment;
• required treatment before a return to work;
• received medical information; and
• expressly referred to alcohol addiction in the termination letter.

The Tribunal found that alcohol-use disorder was a factor in the termination.

Serious and abusive conduct

The evidence concerning Andrusiw’s conduct was highly unfavourable.

It included evidence of:

• intoxication;
• abusive and insulting language;
• threats;
• kicking a hole in a wall;
• threatening to strike an employee;
• comments interpreted as threats of violence; and
• workplace behaviour that caused employees to fear him.

The Tribunal did not minimize these concerns. The employer had ample reason to remove him from active duties and address workplace safety.

However, the employer’s own evidence was that it stopped his pay because of his alcohol use and to pressure him into obtaining treatment. It did not establish that the employment decision was made through a structured response to the historical misconduct or after an accommodation analysis.

The employer addressed the immediate workplace problem by keeping Andrusiw away. It did not properly determine whether the disability could be accommodated without undue hardship.

Safety and accommodation must both be considered

The Tribunal relied upon Kvaska for the proposition that an employer does not have to accept a serious safety risk merely because the employee has a disability.

The employer must do both:

1. address the safety risk; and
2. investigate whether the disability can be accommodated.

Possible accommodations in Andrusiw included:

• paid or unpaid treatment leave;
• time to attend rehabilitation;
• temporary replacement by another manager;
• longer-term substitution of duties; and
• medically supported conditions for a possible return.

The Tribunal did not decide that one of these arrangements would necessarily have succeeded. The problem was that the employer considered none of them before ending the employment relationship.

Medical information must be requested and considered

Westcon argued that Andrusiw failed to provide adequate medical documentation.

The Tribunal rejected this position. The employer did not request medical information until February 2022. Andrusiw’s lawyer supplied information the following month. Management received and reviewed it but did not respond before proceeding with termination.

Where the employer needs medical information, it should ask focused questions concerning:

• the existence of a disability;
• functional restrictions and limitations;
• the relationship between the disability and the workplace conduct;
• recommended treatment;
• the anticipated duration of leave;
• fitness to return;
• any continuing safety risks; and
• conditions required for a safe return.

If the information is unclear or incomplete, the employer should request clarification. It should not ignore the material and later assert that the employee failed to cooperate.

The employer may not dictate treatment without medical support

Westcon’s termination letter stated that it might consider rehiring Andrusiw if he completed residential treatment and met other conditions.

The Tribunal found that this was not proper accommodation. The proposal arose after termination and could not correct the failure to accommodate beforehand.

The employer was also not entitled to dictate residential treatment contrary to the recommendation of Andrusiw’s medical professional without obtaining a contrary medical opinion.

An employer may require an employee to participate in appropriate treatment where treatment is necessary to address the workplace effects of the disability. It may also insist on reliable evidence of fitness before permitting a return to safety-sensitive work.

It does not follow that the employer may unilaterally prescribe the particular medical program the employee must follow.

The employee’s obligation to participate in treatment

Accommodation is a cooperative process.

Once the need for accommodation has been identified, the employee must participate reasonably in the process. Depending upon the medical evidence and the circumstances, this may require the employee to:

• acknowledge the need for assistance;
• provide relevant medical and functional information;
• pursue appropriate treatment;
• participate in a reasonable rehabilitation or return-to-work plan; and
• comply with legitimate medical and safety conditions.

The employee cannot demand accommodation while refusing the measures reasonably required to control the workplace effects of the disability.

The above decision of Collingwood General ⁴ was cited with approval in the London Health Sciences case. It states the principle in this manner:

It is clear that in order to be entitled to accommodation, any disabled employee, including one suffering from a dependence on drugs or alcohol, must accept and pursue necessary treatment to alleviate the effects of the disability. Where an employee accepts and pursues such treatment, then the employer will be required to accommodate the employee’s disability up to the point of undue hardship, particularly where the medical evidence establishes that the employee is fit to return to work. Even where medical evidence establishes that fitness to return to work is subject to conditions, an employer will be required to determine whether it can accommodate those conditions without suffering undue hardship. That is what the employer was required to do in William Osler Health Centre.

The employee’s duty to participate does not excuse an employer that failed to initiate a proper accommodation process. Equally, the employer’s duty to accommodate does not excuse an employee who refuses appropriate treatment, rejects a reasonable accommodation proposal or fails to provide information reasonably required to assess accommodation.

The remedy in Andrusiw

Although the complaint succeeded, the Tribunal awarded only $7,500 in general damages and declined to award lost wages.

The modest award reflected the employee’s serious history of abusive conduct and the uncertainty surrounding whether his employment would have continued even if the employer had followed a proper accommodation process.

The Tribunal treated the central breach as a procedural failure to consider accommodation. It did not find that Andrusiw was necessarily entitled to resume his former position or that his misconduct was without consequence.

The decision demonstrates that a finding of discrimination does not erase legitimate misconduct. The misconduct may remain relevant to:

• the feasibility of accommodation;
• workplace safety;
• whether continued employment was probable;
• the appropriate disciplinary response; and
• the amount of compensation.

A practical framework for addiction cases

An employer dealing with apparent addiction-related conduct should avoid jumping directly from the incident to termination.

The preferable analysis is:

First: secure the workplace

Remove the employee from safety-sensitive or active duties where necessary. Arrange safe transportation if the employee is impaired. Protect coworkers, customers and the public.

Second: investigate the conduct

Determine what happened, what workplace rules were breached and whether the conduct presents an ongoing risk.

Third: consider whether addiction may be involved

Review what the employer knew before and during the incident. Consider visible impairment, prior alcohol-related events, requests for leave, treatment discussions, benefit forms, medical information and statements from the employee or family.

Fourth: examine the causal connection

Ask whether addiction may have contributed to the conduct or adverse impact, including whether it impaired the employee’s capacity to comply with the workplace rule. Do not assume that all misconduct is caused by addiction, but do not assume that the misconduct and the addiction are unrelated. Do not assume that all misconduct is caused by addiction, but do not assume that the two are unrelated.

Fifth: obtain appropriate medical information

Seek information about disability, restrictions, treatment, prognosis, safety and fitness. Focus on functional information rather than demanding unnecessary diagnostic detail.

Sixth: consider accommodation

Assess leave for treatment, modified duties, temporary replacement, restrictions, monitoring, benefit continuation and a structured return-to-work plan.

Seventh: assess undue hardship

Consider actual evidence concerning safety, cost, workforce disruption and operational requirements. The employer should document why proposed options are or are not workable.

Eighth: require employee participation

The employee must cooperate, pursue appropriate treatment and comply with reasonable medical and safety conditions.

Conclusion

Addiction as a mental disability does not provide immunity from discipline. Nor does it mean that every theft, threat, act of dishonesty or policy violation is legally caused by addiction.

The employee must establish that the addiction was a factor in the adverse impact. The test does not require proof that addiction was the sole, dominant, significant or material cause.

A critical factual issue will often be whether addiction affected the employee’s capacity to comply with the workplace rule. In Stewart, the Tribunal reasonably found that the employee retained that capacity. In Kvaska, the Tribunal found that addiction impaired it.

Where no such connection exists, the employer may be entitled to discipline the misconduct independently of the addiction.

Where the employer knows, or reasonably ought to know, that addiction may have contributed to the conduct, it must inquire before terminating. If the connection is established, it must investigate accommodation to the point of undue hardship.

The governing principle from Kvaska and Andrusiw is that safety and accommodation are not competing alternatives. The employer may remove an impaired or dangerous employee from active work, but it must still consider whether treatment leave, medical restrictions, temporary replacement or another safe accommodation can preserve the employment relationship.

Addiction requires neither automatic forgiveness nor automatic dismissal. It requires a careful, evidence-based examination of disability, causation, safety, treatment and accommodation.

 

1. BC v BC Government and Service Employees Union “Gooding” B.C. Court of Appeal; leave to appeal refused 2008 SCCA 460; also to the same effect Wright v College of Nurses Alberta Court of Appeal; leave to appeal refused [2012] SCCA No. 486; Bish v Elk Valley
2. Stewart v Elk Valley 
3. Stewart v Elk Valley Coal Corp., 2015 ABCA 225, aff’d 2017 SCC 30.
4. not on Canlii