- A mining supervisor finds a member of his crew smoking marijuana on the job;
- A hospital catches a registered nurse stealing drugs from the hospital pharmacy; and
- A company learns that one of its workers is driving a company car to an off-site location to buy cocaine during work hours.
All true stories. And in all 3 cases, the worker got fired. But 2 of them actually won reinstatement. The nurse lost, but it was a close call.
The Legal Obstacles of Terminating Drug Addicts
What each of these workers did would seem to constitute just cause for termination. The twist: the worker involved was a drug addict. That’s significant because drug addiction is considered a disability under human rights laws entitled to reasonable accommodations to the point of undue hardship. Such accommodation may include tolerating misconduct that would constitute just cause if it were committed by a worker who isn’t disabled.
4 Situations When Drug Addict Misconduct Is Just Cause
Of course, drug addiction isn’t blanket immunity. Here are 4 situations where addiction doesn’t prevent termination for misconduct:
1. The Addiction Doesn’t Cause the Misconduct
It’s only when the addiction causes the behavior that the right of accommodation kicks in. As explained by a BC Labour Relations Board: “The object of discipline is to bring conduct to an employee’s attention so as to correct or prevent its recurrence. This object cannot be achieved when the conduct at issue is beyond the employee’s control” [Fraser Lake Sawmills Ltd. (Re)].
If behavior is driven by the addiction to such an extent that the worker has no real control, the duty to accommodate kicks in. If the addiction has absolutely no causal connection to the misconduct, it’s subject to discipline. The problem, of course, is that most cases fall somewhere in the middle.
2. Addiction Doesn’t Influence the Termination Decision
If the employer can show that the decision to terminate had nothing to do with the addiction, accommodation is taken out of play. Essentially, you must prove that you either didn’t know or care that the worker had a drug addiction. But that’s extremely difficult, especially when the cause of termination is the actual use of drugs or other behavior closely related to drug use. Thus, the company that caught the miner smoking pot at work had at least some inkling that he had a drug addiction, the arbitrator reasoned [Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115 (Gardiner Grievance)].
3. Worker Doesn’t Cooperate with Accommodation Efforts
Accommodation works both ways. Employers must reach out to determine the accommodations the worker needs; and workers must cooperate with the employer’s accommodation efforts. Thus, a worker’s refusal to admit a problem, provide medical information or attend rehab can put an end to your duty to accommodate. Ditto if a worker violates a “last chance” agreement.
4. The Offence Simply Cannot Be Tolerated
There are some offences that employers simply cannot accept even if the worker who commits them was driven by a drug addiction. For example, a Nova Scotia worker was fired for stealing a debit card from a co-worker and using it to gamble on video lottery terminals. She blamed her behavior on her gambling addiction. But the arbitrator said no dice. Theft irreparably undermines the employer’s trust regardless of its cause. “Does stealing to buy drugs or liquor or to gamble carry less responsibility than stealing to buy expensive cars,” he asked [Energy and Paperworkers Union, Local 40N v. Farmers Co-operative Dairly Ltd.].
Drug and other addictions are a legitimate disability requiring accommodation. But they’re not a licence to misbehave. There are limits to the misconduct you have to tolerate from a drug addict. Unfortunately, the lines are pretty murky. Hopefully, this little piece will help you distinguish them.