March 30, 2017

Employers and unions face a myriad of challenges when an employee engages in workplace misconduct that may be attributable to a substance use disorder. Given the obligation under human rights law to accommodate persons with disabilities, workplace parties often struggle to determine whether discipline or accommodation is warranted in such circumstances. If accommodation is required, parties must also decide what measures can be implemented in the workplace to assist employees and minimize the risk of future incidents. Lancaster’s experienced counsel will canvass a range of legal issues in this area and provide strategies that employers and unions can use to address alcohol- and drug-related misconduct in the workplace. Topics to be discussed include:

  • Clarifying the duty to inquire: Are there certain signs or symptoms that are indicative of someone who suffers from a substance use disorder? When is an employer obligated to inquire as to whether substance dependency played a role in an employee’s misconduct? Does a union bear any duty to make inquiries if it suspects workplace misconduct is disability-related? How does an employee’s failure to disclose his or her addiction affect the duty to accommodate?
  • Contemplating discipline and fulfilling the duty to accommodate: What are the employer and union’s obligations towards an alcohol- or drug-dependent employee in the accommodation process? What misconduct, if any, must an employer tolerate as part of this process? How should employers put employees on notice that they are at risk of disciplinary measures as a result of their conduct? What is the distinction between testing for current impairment versus testing for abstinence? Are there different testing protocols for employees who work in safety sensitive versus non-safety sensitive positions?
  • Establishing undue hardship: How common is the prospect of relapse for individuals living with alcohol or drug dependencies? What factors impact the success or failure rate of those who seek to manage their condition? At what point will an employer be able to establish that it has accommodated substance dependency to the point of undue hardship? How many relapses, if any, is an employer obligated to tolerate before its accommodation reaches the point of undue hardship?
  • Last-chance agreements: Are last chance agreements enforceable if the employee in question suffers from a substance abuse disorder? What are the alternatives to a last chance agreement?
  • Litigating disability-related misconduct: What can a medical assessment tell us about the relationship between certain behaviours (e.g. theft of narcotics, excessive absenteeism) and addiction-related disabilities? What legal tests do adjudicators apply in determining whether workplace misconduct is causally connected to a substance use disorder? What medical evidence is needed to establish a causal link between misconduct and an employee’s disability? Can arbitrators rely on medical evidence of an employee’s disability which comes to light only after disciplinary action has been taken? How much weight, if any, do arbitrators place on post-discharge evidence of successful rehabilitation?