One of the more difficult situations in which an employee and employer will find themselves, is the case of an employee with addiction issues. Addiction is a disability recognized under the Alberta Human Rights Act and as such, employees have a right to be free from discrimination on this ground. Addictions can be challenging for all concerned parties given they may occur in sporadic episodes and are often related to mental health challenges generally.
In the event an employee does have an addiction, the employer has a duty to accommodate them as they would in the case of any other disability. The duty of accommodation is to the point of “undue hardship”. Further, as is illustrated below, the employer has a duty to inquire if it suspects an employee has an addiction and determine if they can be accommodated.
A recent case from the Alberta Human Rights Commission is illustrative of the discrimination that can be faced as a result of an addiction, in this case, that of alcoholism. Here, JG alleged that CW, his employer, discriminated against him on the basis of a mental and physical disability arising from alcohol addiction. Unlike many other cases, JG did not have any performance issues, there were no work incidents related to alcohol and JG never attended work while impaired. However, JG did have many absences from work due to his alcoholism.
JG had informed his employer prior to his termination that he was an alcoholic. The employer gave evidence that it had suspected the employee’s absences were connected to his alcoholism but it failed to explore that connection. The Tribunal found the employer had a duty to inquire and assess whether JG’s disability could be accommodated. As a result, discrimination was established.
The evidence in this case is particularly interesting on the issue of JG expressing his desire to CW for treatment and a return to AA. JG’s supervisor testified that he had no training on how to address substance abuse use issues of employees. The Tribunal found that a lack of training when an employee discloses such a disability does not remove the employer’s obligation to engage in a discussion about the disability, potential treatment and accommodation. JG also expressed a desire for treatment on the day he was terminated but the Manager stated “It was too late for that.”
The Tribunal highlighted the ongoing duty of inquiry placed on employers to inquire about a disability before imposing disciplinary steps. As stated here, citing an earlier decision: “[A] dangerous precedent would arise if employers knew or reasonably suspected the existence of a disability and moved to terminate an employee rather than enquiring as to the nature of the disability and examining whether it could be accommodated.”
Finally, the Tribunal discussed what remedy was appropriate for JG. Relying on a previous case concerning alcoholism, the Tribunal awarded the employee $25,000.00 in general damages and four months of lost wages, less statutory deductions. With respect to the general damages award, the Tribunal indicated that a two part approach is taken. The Tribunal must consider both the particular effect of the discrimination on an individual as well as the objective seriousness of the discrimination. Here, JG experienced feelings of share and worthlessness for a long period of time following his termination. Further, the employer’s failure to conduct any inquiries made the complaint “serious”.
With respect to lost wages, JG was out of work for 16 months. The Tribunal found a significant discount was warranted in an award of the full 16 months given there was no evidence that JG would have attended treatment and continued his employment for that amount of time. Further, there was limited evidence of JG’s mitigation efforts. The Tribunal also questioned whether JG would have maintained full employment in the absence of discrimination. As a result, a discount of 75% was applied to allow for a four month lost wages claim.
If you have been terminated from your employee due to an addiction, your rights may have been infringed. Contact Cashion Legal and our Calgary employment lawyers can help you determine what your next steps might be.