Written on behalf of Peter McSherry
As noted in the most recent post on the subject of cannabis use in the workplace, the issue of a drug addiction is a complicated question.
Addiction as a Disability
Human rights law prevents an employer from taking adverse action against an employee due to a drug addiction as this issue has been considered on many prior cases to be a “disability” and hence protected by human rights law.
The employer is under a duty to accommodate any disability to the point of “undue hardship”. This does not give the employee a free hand in being at work in a state of impairment or otherwise violating the employer’s requirement for a drug free workplace.
If the employee is indeed suffering from such an addictive disability, they will need to prove this is so by medical evidence to raise a human rights case. They will also need to commit to the same duty of accommodation by sharing such medical evidence with the employer and taking appropriate remedial treatment to treat this disability. Should they fail to do so, there will be no case.
If treatment is taken and the employee shows recovery, the employer would be likely required to re-hire where termination has been effected. The evidence of the rehabilitative conduct must be shared with the employer. Absent a benefits program which is in place, the employer cannot be expected to fund the rehab.
This is again not open-ended. The employer cannot be expected to be perpetually ready to re-hire in cases where the employee has again become addicted. This would likely meet the test of “undue hardship” depending on the individual fact situation.
Perception May be Reality
Human rights law recognizes that the employer’s apparent belief that a worker suffers from a disability is a violation of the same protected right. This is so even when the employee does not in fact have such a disability.
The example is seen more vividly in the following example. If an employee is fired because the employer believes that they are homosexual, it matters not that this person is straight. The important issue is that the company believed this to be so.
The same rule applies to addiction issues. If the company believes that the employee is addicted, and they are not, there is still a valid human rights complaint.
Added to this issue is that for a human rights case to succeed, the human rights violation need only be an influential factor and not the sole cause.
If for example, the worker has been terminated due to allegations of tardiness, or sloppy work and the possible explanation for these issues as drug addiction, there is a valid human rights claim. This is so, again, even where there is no drug addition.
Let Legal Advice Guide Your Actions
This issue of drug addition and employment issues is clearly complex. The remedy in human rights law can be significant. These claims include lost wages to the date of hearing, reinstatement and damages for emotional suffering. Should you face such a case, it is important to take legal advice to understand your rights. If you have questions about such an issue, contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation