Responding to Disability-Related Misconduct: Discipline or accommodation?

What happens when an employee with a mental health issue or addiction engages in workplace misconduct that may be attributable to the disability? Can an employer dismiss an employee for misconduct caused, in whole or in part, by a disability? In light of the obligation under human rights law to accommodate persons with disabilities, how should workplace parties determine whether discipline or accommodation is called for? Lancaster’s panel of experts will address these issues as well as the following questions:

• Duty to inquire: Is an employer required to investigate whether disability played a role in an employee’s misconduct prior to imposing discipline? What steps should an employer take if management suspects that an employee’s disability has contributed to misconduct? Are there typical behaviours or warning signs that may alert an employer to the possibility that misconduct is disability-related? What happens when an employee denies she or he has a mental health issue or addiction? Does a union bear any duty to make inquiries if it suspects workplace misconduct is disability-related?
• Right to information: What type of information is an employer entitled to receive in order to facilitate accommodation of an employee with a mental health issue or addiction? Is an employer entitled to a specific diagnosis? Is information from a family physician sufficient or can an employer require evidence from a specialist? Can an employee with a suspected or known mental health or addiction-related disability be removed from the workplace pending a satisfactory medical assessment on grounds of safety? How does an employee’s failure to disclose his or her mental health issue or addiction affect an employer’s duty to accommodate? What if an employee only becomes aware of a mental health issue or addiction after termination?
• Accommodation: What types of misconduct, if any, must an employer accept? Does an employer have the right to discipline an employee with a pornography or gambling addiction for inappropriate internet use in the workplace? Will alcoholism or drug addiction vitiate culpability for absenteeism or on-the-job inebriation? Must an employer tolerate workplace theft that is causally linked to an employee’s addiction? What about emotional or violent outbursts caused by an employee’s mental health issues? Must an employer accept dishonest conduct related to an employee’s disability? Is an employee with a history of mental health issues or addiction required to pursue treatment in order to be entitled to accommodation? Is it discriminatory to require random drug testing of an employee involved in addiction-related misconduct? Can an employer impose special medical reporting conditions on employees recovering from other types of addictions? When, if ever, will last-chance agreements be appropriate? What about written “return to work” plans? Are “zero tolerance” policies defensible in relation to an employee with a disability? Are different approaches warranted in different industries? Are employers required to take the possibility of relapse into account when accommodating an employee with an addiction? Should employees who successfully undergo rehabilitation post-discharge be reinstated?
• Undue hardship: How much misconduct is an employer expected to accommodate? That is, when will the employer reach the point of undue hardship in accommodating an employee with a mental health issue or addiction that results in misconduct? Does it matter if the conduct is violent? Does it matter if the employee occupies a position of trust usually held to a very high standard (e.g. teachers, health care workers, etc.)? How many relapses must an employer tolerate before its accommodation reaches the point of undue hardship? Can last chance agreements be used by an employer to establish that accommodation has reached the point of undue hardship?
• Arbitral approach: What is the “hybrid” approach? How does it differ from the disciplinary and therapeutic approaches? Do arbitrators still actively employ the “hybrid approach” when assessing cases of disability-related misconduct? What evidence is required to establish a nexus between the disability and the misconduct? Does it matter if the workplace is a safety-sensitive environment? Can arbitrators rely on medical evidence of an employee’s disability that 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?