Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2014 Addicted worker's breach of last chance agreement not the end Keeping worker employed in safety sensitive position would be undue hardship, but there were other possibilities for worker after multiple relapses By JEffrEy r. SmiTh A British Columbia company dis- criminated against an addicted worker when it terminated him for breaching a last chance agreement by failing an alcohol test, an arbitrator has ruled. e 57-year-old worker, referred to as GH in the judgment, was a cook and deckhand for Seaspan, a marine trans- portation company based in North Van- couver. His duties included maintenance and safety on tugs, usually for two- to three-week trips. He was hired in 2003. GH had a history of alcohol and drug abuse from his childhood and into his adulthood. He also used prescription drugs and experimented with harder stuff, resulting in depression, paranoia, low self-esteem and suicidal thoughts. In 2005, GH became involved in attempts to establish an abstinence-based treat- ment program for addiction at Seaspan. He promoted the program and, facing resistance from workers who thought it was a way to get rid of employees, GH self-disclosed his addiction to Seaspan and entered the treatment program. When GH was released from the pro- gram, he signed a return-to-work agree- ment where he agreed to abstain from drugs and alcohol for 24 months and granted Seaspan the right to demand testing if it suspected he was impaired. If GH breached the agreement, his employ- ment would be "automatically reviewed." GH also signed a "contingency moni- tored recovery agreement," which stipu- lated that an appointed monitor would administer random urine tests at least once a month for two years and GH had to go to Alcoholics Anonymous and Nar- cotics Anonymous meetings. GH successfully completed the two- year period without testing positive. However, in May 2009, he told Seaspan he had suffered a relapse. He didn't have to attend a residential treatment pro- gram, but he was put on a two-year mon- itoring and counselling program. Worker suffered relapses In February 2010, GH contracted pneu- monia and his depression worsened. He self-medicated with marijuana cookies and tested positive on March 1. In June, his doctor cleared him to return to work in his safety sensitive deckhand job and he signed another monitoring agreement committing him to abstaining from alco- hol and drugs, attending support group meetings and anger management coun- selling, and undergoing random urine or blood tests, for a period of two years. At a New Year's Eve party GH unwit- tingly ate cookies and cakes containing marijuana. He reported to his monitor and tested positive for marijuana. A doctor concluded GH was "treat- ment resistant" and unfit for a safety sen- sitive job. GH was relieved of his duties while Seaspan considered other positions for him, which the union grieved. In October 2011, they came up with a mediated settlement agreement which specified an independent medical as- sessment to determine if GH was fit for safety sensitive work. If not, the company would place him in another job. If he was, he would be subject to a two-year moni- toring agreement requiring abstinence from alcohol and drugs and random test- ing. Any positive test or breach of the agreement would result in "the imme- diate termination of GH's employment." e agreement also stated that it "satis- fies the duty of the employer to accom- modate to the point of undue hardship." Return-to-work agreement gave worker specific obligations e independent medical assessment indicated GH must completely abstain from drugs and alcohol and participate indefinitely in a recovery program, but if he complied the prognosis was for a "sustained recovery and successful re- turn to work." GH subsequently signed a return-to-work agreement for 27 months in which he had to maintain abstinence from drugs and alcohol, attend support meetings with a sponsor, undertake 12- step programs, and participate in "rigor- ous medical monitoring." Eventually, he would be placed back in his deckhand position. If he breached the agreement, "immediate termination" would result. GH complied with the agreement without event until March 2013, when he suffered a knee injury at work. He was off work until July, though he continued with alcohol and drug testing. On Aug. 13, GH was told a test he did had come back positive and he would be kept on the payroll until the results from his "B" sample were confirmed. e "B" sample also came back positive and GH's employment was terminated for breach- ing the settlement agreement. e union grieved the termination, arguing it was discrimination based on disability. e arbitrator noted that the provision in the settlement agreement providing for automatic termination as the result of GH breaching it made it a last chance agreement. ough not part of collec- tive agreements, last chance agreements "should be given contractual force unless there are strong and compelling reasons not do to so," said the arbitrator. However, the arbitrator also pointed out that last chance agreements were sub- case in PoinT: ACCOMMODATION LAst chAncE agreements can be beneficial to both the employer and the employee. For the employer, they can protect its business and workplace by providing a definite cause for dismissal if a troublesome worker repeats past misconduct. For the employee, it can give another chance to keep her job following misconduct that might otherwise get her fired. However, last chance agreements aren't always black-and-white, especially when the misconduct in question is related to a disability such as alcohol addiction. Regardless of the language of such an agreement, it doesn't trump human rights legislation. If an employer would normally have a duty to accommodate an employee with a disability related to misconduct, that doesn't change if the employee is on a last chance agreement. BAcKGROUnD

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