Canadian Employment Law Today

STUART McKELVEY HALIFAX Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Canadian HR Reporter, a Thomson Reuters business 2015 2 | November 11, 2015 with Brian Johnston Ask an Expert Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Have a question for our experts? Email Jeffrey.R.Smith@thomsonreuters.com Accommodation after employee refuses assistance program Question: If an employer offers a comprehensive employee assistance program (EAP), is there an obligation to further accommodate an employee with an addiction disability if the employee refuses to use the EAP? Accommodating smokers Question: Is smoking considered an addiction disability that needs to be accommodated? Unlike other addictions, this one can affect others through secondhand smoke, so could it be considered undue hardship if an employer doesn't have an area where it can allow smoking? Answer: e grounds of discrimination enumerated in most human rights legisla- tion include "drugs and alcohol." However, addictions to tobacco, tobacco products and nicotine are not specifically mentioned in the legislation. Grounds of discrimination can also be es- tablished through jurisprudence, with a sim- ilar effect as if they appeared in the statute. Surprisingly, there are few cases whether an addiction to tobacco is a new ground or falls under an existing ground. British Columbia is the only province in which nicotine addiction has been found to be a disability constituting a ground for dis- crimination. In a 2000 decision, Cominco Co. and USWA, Local 9705, Re, nicotine addic- tion was found to be a disability within the meaning of the Human Rights Code, and heavily addicted smokers were found to be discriminated against by a no-smoking poli- cy. erefore, in British Columbia, employ- ers have a duty to accommodate smokers who are addicted to nicotine. It is difficult to predict the duty to accom- modate in other provinces, especially be- cause the legal analysis for discrimination has since changed in a way that might affect the outcome were the Cominco case to be decided today. Social policy on smoking has also shifted since 2000 (see the discussion of Smoke Free laws below). e effect of secondhand smoke on non- smokers is certainly a factor to be consid- ered in setting the location of a designated smoking area. e British Columbia Hu- man Rights Tribunal in Borutski v. Crescent Housing Society held that the employer had a duty to accommodate certain tenants for whom exposure to secondhand smoke exac- erbated existing medical conditions. A simi- lar duty could apply in respect of employers. e tribunal in Borutski ultimately held that the Housing Society discharged its ob- ligations by implementing numerous mea- sures, including moving the outdoor smok- ing area well beyond the buffer zone. Many requirements in this regard are now written into law in the form of "Smoke Free" legis- lation. Various provincial and federal acts passed over the last several years generally ban smoking in all indoor public spaces, in- cluding workplaces. e legislative bans on smoking are mostly consistent from one ju- risdiction to another. Some of the provincial bans create smoke-free zones outside public spaces as well — within a certain radius from doors, windows and air intakes. Employers should make themselves aware of the minute differences in the Smoke Free laws of the provinces or territories in which they operate. ese requirements are ever- changing and may require periodic review of policies to remain compliant. In Nova Sco- tia, for example, the Smoke-free Places Act was recently amended to include electronic cigarettes in the definition of "smoke." For more information see: • Kemess Mines Ltd. v. I.U.O.E., Local 115, 2005 CarswellBC 2368 (B.C. Arb.), aff 'd. 2006 CarswellBC 293 (B.C. C.A.). • Stewart v. Elk Valley Coal Corp., 2015 CarswellAlta 1190 (Alta. C.A.). • Cominco Co. and USWA, Local 9705, Re, 2000 CarswellBC 4681 (B.C. Arb.). • Borutski v. Crescent Housing Society, 2014 CarswellBC 1545 (B.C. Human Rights Trib.). Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or bjohnston@stewartmck- elvey.com. Answer: eoretically yes, on the basis that "denial" can be a symptom of addiction. For example, in Kemess Mines Ltd. v. I.U.O.E., Local 115, the arbitrator, Donald R. Munroe, Q.C., found that the employer's duty to accommodate was not met, because the employee was in denial about his addic- tion. e employee, who had not sought as- sistance from the employer's EAP, was dis- missed when caught smoking marijuana. e British Columbia Court of Appeal up- held the arbitrator's decision, stating: "e scope of the employee's duty may vary depending on the relevant factors in the case, including whether the employee is in denial or unaware of his addiction/disabil- ity. I would not say that there can never be a duty on an undiagnosed employee to seek help voluntarily. And once the employee is aware of his addiction, there is no doubt that he must do all he can to facilitate the success of his rehabilitation and treatment. e facts of each situation must be assessed on a case by case basis." On the other hand, in Stewart v. Elk Val- ley Coal Corporation, the dismissal of an employee based on a similar policy was up- held. e employee, a truck driver on a safety sensitive work site, tested positive for cocaine after colliding with another vehicle. e em- ployer's policy allowed drivers to seek assis- tance through an EAP without discipline, but only before the occurrence of a workplace in- cident. e policy clearly stated that dismissal could result if the policy were breached. Following the accident, the employee claimed his failure to take advantage of the policy resulted from his denial of his own addiction. However, the tribunal found no discrimination, because the policy applied equally to drug addicts as it did to drug users who were not addicted. It therefore reasoned that the complainant's dismissal was owing to his breach of the policy, not his addiction. e Alberta Court of Appeal later upheld these reasons. ere is some uncertainty whether the ac- commodation process continues beyond an employee's refusal to use an EAP, and an em- ployer's obligation depends on the circum- stances. e post-refusal incident in Elk Val- ley was more serious than that in Kemess, where the employee was simply caught be- ing intoxicated. CREDIT: LORI SKELTON/SHUTTERSTOCK

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