Addiction, as discussed elsewhere, has been recognized as a protected ground as a disability.
The issue becomes, particularly in addiction cases, an analysis of the termination decision to determine if it was casually linked to the addictive behaviour when it was ostensibly due to the offensive conduct, such as stealing the employer’s property, to support the protected ground of addictive behaviour.
The general view is that there is marked distinction between conduct which is supportive of the addictive habit and the addiction itself. 1 The leading case involved an employee who admitted to theft and proclaimed his addiction.
The court saw no role which the dependence on alcohol played in the decision to terminate. The fact that persons suffering from such a disability may reflect “deterioration in ethical or moral behaviour” and hence suffer from greater temptation does not allow for the inference that the termination decision was influenced by the dependency on alcohol. The termination decision was based on the misconduct solely.
Even if the dependency was admitted, it does not follow that this therefore played a role in the termination decision. The decision was reversed. The case was remitted back to the arbitrator for the determination of the appropriate level of discipline.
Such a drug addiction which had background relevance to the offensive workplace conduct was not sufficiently close to create the nexus for the third ground of the test.
Similarly a tribunal finding that the termination was due to the failure of the employee to stop using drugs and for the failure to disclose drug use was not sufficient to see a link to termination due to the addictive disability. 2The employee had not at the relevant time admitted to his addictive propensity. The requirement to disclose drug use was by the employer policy document.
This case raised also the issue of how to determine the existence of the addiction. Must the user admit to his addictive behaviour to be an addict, or might the evident conduct be sufficient to allow an impartial decision maker to come to his conclusion? The need for such an admission carried the day in this instance. This was the basis for the conclusion that the employer was correct to treat the employee as a user in breach of the policy requirements and not as an addict. 3
An important factual finding underpinned this decision, namely, that the employee had the capacity to control his use of drugs and that his breach of the policy was hence not due to his inability to control his drug use.
The finding of this link is considered a question of mixed fact and law. 4
An employee suffering from addiction to drugs or alcohol must accept and pursue treatment to deal with the disability. Presuming that is so, the employer then has an obligation to accommodate up to the point of undue hardship, particularly where the employee has by medical evidence, established that he is fit to return to work.
The above decision of Collingwood General 5 was cited with approval in the London Health Sciences case. The point made is that an employee suffering from drug dependency must accept and follow the treatment plan. Where this is so, then the employer will have a duty to accommodate, given medical evidence showing that the employee is able to return to work. The employer must do so or prove undue hardship:
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.