Should employees with addictions get a second chance?
Should an employee with an addiction be given more than one chance to get clean? An arbitrator has said yes.
An employer cannot expect the serious condition of combined mental health challenges and addiction to be cured on the first try, an arbitrator has held.
Clean Harbors Canada Inc. operates a waste transfer station that handles hazardous and non-hazardous materials, and is governed by the federal Drug Free Workplace Act, 1988. The grievor was an operator who, in the context of the “safety sensitive” environment of the plant, was expected to handle equipment, substances and products in an appropriate manner.
In December of 2009, the grievor was discharged for excessive absenteeism. The Teamsters Local Union No 419 successfully grieved that dismissal, and he was reinstated on the condition that he meet a specified level of attendance for the following 18 months. The grievor fulfilled the attendance condition without incident.
A few months later, the grievor requested a leave of absence to deal with major depression and alcoholism. In his written request, he stated that he was waiting for admission to a 35-day residential treatment program at Homewood Health Centre, that he anticipated returning to work in mid-November of 2011, and that he would contact the employer upon his discharge.
The employer granted the leave of absence. However, the grievor did not contact the employer until more than two weeks following the expected return-to-work date, at which time he told the employer that he had checked himself out of the Homewood program, and that he would now prefer to continue to work while attending a 90-day outpatient program. The employer terminated the grievor on the basis that he had failed to contact the employer for two-weeks following the agreed return-to-work date, his unauthorized absence from work, and his failure to provide medical documentation justifying his early departure from the treatment program at Homewood.
Following his discharge, the grievor persevered in obtaining medical treatment, attending and participating actively in a significant part of a three-week non-residential treatment program. He stopped drinking and began to participate in Alcoholics Anonymous meetings.
The arbitrator’s decision
Arbitrator Knopf reinstated the grievor without compensation, but with full seniority, subject to a number of conditions concerning treatment, attendance and alcohol and drug testing.
The arbitrator concluded that the Employer had not reached the threshold of undue hardship in its attempt to accommodate the grievor. She noted the grievor’s conduct, in leaving Homewood early and in failing to advise the Employer about the situation immediately, was typical of someone suffering from mental health issues and, in particular, from addiction. The Employer had unrealistically expected that the grievor’s addiction and mental health problems would be “cured on the first try”:
While addiction is a curable disease, it is not one that is easily remedied. Unlike some metabolic illnesses, it cannot be cured by a simple medication regime or a single course of therapy. Treatment takes time, involve a combination of training, therapies, and opportunities to learn from errors and successes. Addicts may require a combination of lifestyle, behavioral, pharmaceutical and/or cogitative approaches. Medical interventions, as well as group and/or individual sessions, may be needed, the length and frequency of which will vary according to the individual’s needs. It is also an ongoing process, requiring constant attention and consideration by both the addict and his/her family. That is not to say that an employer should have to put up with a dysfunctional and non-productive addicted employee endlessly in the hopes of eventual success. But it does mean that it is unrealistic to expect that the serious condition of combined mental health challenges and cross-addictions could be cured on the first try. This Employer seems to have failed to appreciate this.
The Employer’s decision that the grievor could no longer carry out his obligations as an employee had therefore been premature, the arbitrator held. In the grievor’s absence, the waste transfer station had continued to operate without significant problem without having replaced him. Moreover, the grievor had been following through with counselling and medical treatment, and was not in a hopeless situation. There were a variety of measures of accommodation that the Employer could have attempted before moving to discharge him, but did not. Therefore, while it had suffered “some hardship”, the Employer could not yet be said to have reached the point of “undue hardship”. Distinguishing between these two concepts, the arbitrator noted that “while ‘some hardship’ is an aspect of accommodation, only ‘undue hardship’ relieves an employer of the duty to accommodate.”
The arbitrator also held that, in deciding that it had already accommodated the grievor to the point of undue hardship, the Employer had placed heavy reliance on his previous disciplinary suspension past the time at which it could be relied upon, in violation of the minutes of settlement and the collective agreement.