Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2014 ject to human rights legislation, making the agreement's statement that it fulfilled Seas- pan's duty to accommodate irrelevant. e arbitrator found GH's drug and al- cohol addiction was a disability – a fact acknowledged by Seaspan when it men- tioned the duty to accommodate in the settlement agreement. e termination for his relapse was adverse treatment re- lated to that disability, which was the main factor in termination – establishing prima facie discrimination, said the arbitrator. e arbitrator examined the require- ments for determining whether prima facie discrimination was a bona fide occu- pational requirement: • e purpose of Seaspan's substance abuse policy was a drug- and alcohol-free work- place which, given the safety sensitive po- sitions such as deckhand, was rationally connected to the job. • e policy was meant to provide guidance and treatment for those with addiction and establish ways to test and monitor em- ployees in safety sensitive positions. It was adopted in "an honest and good faith belief that these requirements are necessary for legitimate work related purposes." • GH relapsed four times in the previous four years, with Seaspan accommodating GH on three of those occasions. "...Four relapses in four years (since 2006, five relapses in seven years), in a safety sensitive position, has satisfied the employer's duty to accommodate to the point of undue hardship," said the arbitra- tor. "An additional factor in my analysis of the duty to accommodate to the point of undue hardship has been the settlement/ last chance agreement wherein all parties came to a similar conclusion." However, in GH's favour, there was no evidence he used drugs or alcohol at work and he self-disclosed each time he re- lapsed. After receiving treatment for his depression, GH was given medical clear- ance that he would be able to return to work. e settlement agreement allowed that if it was determined GH could not return to work in a safety sensitive job, another position could be found for him. Since the possibility of a non-safety sen- sitive position was raised, the duty to ac- commodate would necessitate exploring such options, said the arbitrator. Since GH self-disclosed all his relapses, he was being treated for his depression as well as his addiction, and his relapses were off-duty without any actual work- place misconduct, the arbitrator found it wouldn't be undue hardship for GH to be placed in a non-safety sensitive position. e arbitrator also pointed out that the policy encouraging workers to self-dis- close addictions and encouraging their re- covery along with workplace safety would be put at risk if GH's conduct resulted in "immediate termination." Seaspan was ordered to reinstate GH to a position that was not safety sensitive with no compensation for lost pay. Seas- pan was entitled to require an additional independent medical examination to de- termine GH's fitness for work and have GH sign another return-to-work agree- ment with the same terms. For more information see: • Seaspan ULC and ILWU Canada, Local 400 (H. (G.)), Re, 2014 CarswellNat 4087 (Can. Arb.). November 26, 2014 | Canadian Employment Law Today AbouT THe AuTHoR JEFFREY R. sMIth Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.r.smith@thomsonreuters.com, or visit www.employmentlawtoday.com for more information. cRedit: AleJAndRo dAnS neeRgAARd/ShutteRStock

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