Under the Canadian Charter of Rights and Freedoms as well as provincial and federal human rights legislation, a person cannot be discriminated against on the basis of disability. Under the Law, substance addictions (e.g., alcohol, marijuana, cocaine, and other stimulants, narcotics, sedatives, tranquilizers or other mood-altering substances, both illicit and prescription medications) are considered a form of mental health disability. This means that an employee cannot be terminated because of a substance addiction (Stewart v. Elk Valley Coal Corp.)

In Ontario, employees are protected by the Human Rights Code and employers have a formal duty to accommodate employees with disabilities. A duty to accommodate means that accommodation must be provided in a way that most respects the dignity of the person. Human dignity encompasses individual self-respect, self-worth and inherent worth as a human being. The Ontario Human Rights Code policy on accommodation of disability provides that “whether the disability is physical or psychological, respect for dignity means being considered as a whole person, not identified by one’s disability or the psychiatric system.” Therefore, human dignity must be at the center of the approach to accommodations for employees and employers. Even if an employee does not openly admit to being an addict, but the signs are there, this still triggers the employer’s duty to accomodate. For example, a common symptom of addiction is denial. 

Examples of Accommodations

Accommodations are never one-size-fits-all and employers as well as employees must engage meaningfully with each other to figure out which accommodation works best for their specific situation. Accommodation should also be compassionate and flexible. Possible accommodations may include: 

• Medical leave 
• Flexible work hours for addiction-support services 
• Financial contribution towards rehabilitation services 
• Modified workplace duties 
• Employer communication with employee’s doctor or therapist
• Regular check-ins 

These accommodations may be accompanied by duties and obligations on the employee’s part: 

• Drug or alcohol testing
• Regular check-ups with the employee’s doctor/therapist
• Open communication between the doctor/therapist and the employer (subject to healthcare confidentiality regulations)
• Completion of rehabilitation programs 
• Abstinence from any/all substances 
• Disclosure of substance use 

Employer Awareness

Employer awareness of the nature of substance abuse issues is crucial to the duty to accommodate. There is a difference in law between employees who work under the influence of drugs or alcohol absent an addiction (not considered a mental disability) and employees who work under the influence due to addiction (considered a disability). Employees using substances that affect their performance at work but who do not suffer from addiction are not a protected group with a disability (Deering v Cougar Helicopters Inc).

Sometimes it may become obvious to the employer that an employee is under the influence of substances but an addiction itself is not so apparent. Until the employer is made aware of an employee’s addiction, it is not up to the employer to assume. The employer may take disciplinary action especially where the employee causes safety hazards or their performance suffers (International Assn of Firefighters v New Westminster (City) [Gilchrist Grievance]).

Undue Hardship

When the employer has been made aware of a drug or alcohol addiction, they become obligated to accommodate the employee until the point of undue hardship. Put simply, undue hardship occurs if an accommodation results in disproportionate or unreasonable burden on the employer, usually due to the cost of the accommodation or due to health and safety risks. 

In the case of OPSEU v. Ontario (LCBO) (Anagnostopoulos Grievance), the employer (the LCBO) paid entirely for at least 8 months of individual counselling sessions, provided flexible work hours, and accommodated approximately four years of consistent absenteeism, workplace intoxication, and poor performance before terminating the employee. At this point and with no optimism for change in the future, the employer reached undue hardship. 

In Uniroyal Goodrich Canada Inc. and United Steelworkers of America, Local 677 (N.S. Grievance), the employee’s conduct endangered himself, fellow employees and caused excessive disruption to the workplace. Corrective and counselling measures, as well as accommodations had no discernible beneficial effect after approximately four years. The employer reached the point of undue hardship.

Takeaway for Employees and Employers

It is important to remember that any issues that may arise in the workplace from substance addiction is not any one person’s fault. Addiction is a mental disability and a person suffering from addiction is entitled to care, compassion and accommodation. The point of undue hardship acts as a defence for employers who have taken all due care of the employee, but the relationship has reached a point of such strain that it is unreasonable to require the employer to sustain the employment relationship. 

When to Speak to a Lawyer 

If you are struggling with an addiction which is interfering with your work performance, you should speak with an employment lawyer to ensure that you are fully aware of your rights. You should also speak with an employment lawyer if your employer has not properly accommodated you, or, if your employer has terminated you as a result of your addiction issues.

Available Resources 

If you or someone you know is suffering from substance addiction, these resources can help: 

• Your family doctor or nurse practitioner can offer treatment options
• Visit Health811 online or call 811 to speak to a registered nurse
• To connect with a mental health professional one-on-one, call 1-866-585-0445 or text WELLNESS to 741741
• Visit Wellness Together Canada to access different levels of support, including:
• one-on-one counselling
• credible articles and information
• self-guided courses and programs
• peer support and coaching
• Canada and Ontario (as well as all other provinces) also provide resources and support: 
• Government of Canada – Mental health support: Get help
• Government of Ontario – Find mental health support
• Government of Ontario – Find mental health and addiction services in your community