July 26, 2018

Last chance agreements (LCAs) are often used when an employee has been, or is about to be discharged for reasons related to attendance or a substance use disorder. While arbitrators are reluctant to interfere with freely negotiated resolutions between workplace parties, they recognize that the terms of an LCA and any adverse action taken based on it must comply with the duty to accommodate under human rights legislation. In this session, seasoned labour lawyers and a medical expert will explore when LCAs may be appropriate, what terms may be included, and the circumstances in which LCAs will be set aside. Issues to be addressed include:

  • In what circumstances are LCAs appropriate?
  • Can/should LCAs deal with both culpable and non-culpable conduct?
  • What provisions are usually included in an LCA? How can/should the terms be individualized to address an employee’s specific needs?
  • In cases involving substance use disorders, what terms should be included in an LCA? Are conditions requiring an employee to abstain from alcohol or drug use appropriate or helpful? Is it discriminatory not to allow for relapses? Is random drug/alcohol testing permitted? Is a requirement to undergo psychological assessment or an independent medical examination discriminatory? Can/should LCAs require an employee to undergo rehabilitation treatment? If so, what treatment options should be considered? What type of aftercare may be appropriate?
  • Are employers entitled to medical updates or other information about counseling or treatment?
  • Can/should an LCA require an employee to substantiate any absence with a doctor’s note?
  • Can an LCA impose a requirement not imposed on other employees, such as requiring that the employee’s attendance equal or surpass the departmental average?
  • Is it permissible for an LCA to limit an arbitrator’s jurisdiction to determining whether its terms have been violated, and preclude the arbitrator from determining whether the employer has met its duty to accommodate?
  • How much weight is given to an LCA at arbitration?
  • In what circumstances will LCAs be upheld as consistent with the employer’s duty to accommodate to the point of undue hardship, and when will they be found unenforceable? Will an LCA ever be set aside if it includes a term that the employer has reached the point of undue hardship?
  • Does post-termination evidence of rehabilitation carry significant weight at arbitration? When is such evidence admissible?
  • If an employee in a safety-sensitive position breaches an LCA, must the employer consider accommodation in a non-safety sensitive position?
  • If an employer imposes an LCA and it subsequently becomes aware that the employee has a disability, is the LCA enforceable?
  • In what circumstances will arbitrators impose LCAs as a condition of reinstatement?