Canadian Employment Law Today

Addicted worker can't keep afloat Employer dismissed addict worker from safety sensitive job after years of treatment regimes and relapses BY JEFFREY R. SMITH A British Columbia company ex- hausted its duty to accommodate an employee with drug and alco- hol addictions and was entitled to terminate his employment after numer- ous relapses and rehabilitation attempts, an arbitrator has ruled. Seaspan is a marine transportation com- pany providing docking services in the Vancouver and Vancouver Island region. e company employs licensed officers with specialized certifications including captains, mates and engineers to staff the company's tugs and barges. Captains in par - ticular were in safety sensitive positions due to their responsibility for the safety of crew and equipment, as well as avoiding damage to property and the environment. One 55-year-old worker was hired by Seaspan as a captain in April 2007. His en - tire career was spent on boats in various capacities and was considered a competent employee, but before he joined Seaspan he had undergone treatment for various ad - dictions and suffered several relapses over many years. As a result, he underwent a pre-employment medical examination that resulted in a prognosis that he was abstain - ing from alcohol and mood-altering drugs and was going to regular Alcoholics Anony- mous (AA) meetings. A year after he joined Seaspan, in May 2008, the worker suffered a relapse and missed a shift. He was referred for an in - dependent medical assessment, which rec- ommended he complete a 30-day period of continuous abstinence before performing safety-sensitive work. e doctor noted that the worker sincerely wanted to achieve stable abstinence and recovery. e worker attended a treatment pro - gram and returned to work in July 2008 with an agreement that for 24 months he would abstain from mood-altering substances, support all absences "to the satisfaction of the department," report to work every day "in a fit and reliable condition," and immedi - ately withdraw from work if he relapsed. He also agreed to be monitored by a profession- al monitor and therapist during this period. e worker complied with the agreement for two years while he worked as a relief captain and was monitored by the therapist. On Dec. 7, 2010, he missed a shift. e next day he called the rehabilitation con - sultant in the company's wellness depart- ment and reported he had relapsed again. He underwent a medical evaluation on Dec. 23, and the examining doctor determined the worker wasn't fit for safety-sensitive work and must be abstinent from all mood- altering substances. e doctor also rec - ommended the worker must demonstrate at least 30 days of sustained recovery after treatment before returning to work. e worker was off work receiving treat - ment until April 2011, when he returned to work. However, he was only back for a cou- ple of weeks when he relapsed again, using cocaine in early May. Another medical ex- amination determined the worker's addic- tion wasn't a recognized medical disorder, but he needed more treatment. e worker was sent to a top health cen- tre in Toronto — which the doctor referred to as "Canada's gold standard of care for his process addiction" — and returned to Vancouver in December 2011, where an assessment once again required 30 days of abstinence and using an aftercare program before returning to work, plus a further two years of monitoring by the same therapist. e worker returned to work in January 2012. Seaspan provided him with a letter outlining the conditions for his return, in - cluding a last chance agreement that includ- ed the following provisions: • Abstinence from all mood-altering sub- stances except for prescriptions • Working each shift in a fit and reliable con- dition • A two-year monitoring agreement with the therapist • Submitting to breathalyzer, urine tests, or providing a hair sample if the employer rea - sonably believes a relapse has occurred • Immediately withdrawing from the work- place if a relapse occurs. e agreement concluded with the warn- ing that the worker was expected to "comply strictly" with these requirements and a fail- ure to do so would "lead to a review of your employment relationship with Seaspan." e worker followed the agreement for some time, abstaining from drugs and alco - hol and attending up to five support group meetings a week. Occasionally, he would be assigned to a job out of town for a short pe- riod of time, and on such occasion Seaspan accommodated him by not requiring him to report every day or submit to testing. Worker travelled for project with no recovery support nearby In the summer of 2012, the worker volun- teered for a special project outside of Fort McMurray, Alta., which was expected to run between two and four weeks. He was told there were support meetings at the job site, but when he arrived he discovered that wasn't the case. He checked to see if there were any meetings in Fort McMurray, but couldn't find any. e project was extended for a couple of more weeks and the worker ended up spending 57 days on the project, working every day. He hadn't attended any support meetings during that time, nor had he been tested or checked in with his monitor — though the company and the monitor hadn't been concerned, the company was pleased with his efforts, and the worker had in fact avoided drugs and alcohol. Once the worker returned to Vancouver on Aug. 7, he continued to abstain from drugs and alcohol but didn't resume going to meetings, connecting with his sponsor, or any other recovery activities. He felt be - cause he had done well in Fort McMurray, he didn't need to do these things anymore. He continued to check in with his monitor and submit to random tests at work, though he lied to the monitor about attending meetings and performing 12-step work. Latest relapse last straw for monitor, employer On Nov. 16, the worker used crack cocaine at a friend's house. He missed his shift the next day and called Seaspan's rehabilitation consultant to say he had relapsed. ree days later, Seaspan sent him a letter saying he needed to contact his monitor for a re - view of his fitness for work. e worker missed scheduled meetings with his monitor and a doctor for assess- ments, and failed to show when they were rescheduled. e doctor tasked with assess- ing the worker informed Seaspan that the worker was demonstrating "treatment resis- tance" and putting him in a safety sensitive position would be "an unacceptable risk." Seaspan had trouble contacting the worker — other than a brief conversation with the monitor on Dec. 22 — until early January. A meeting was set up for Jan. 8, but the worker had another relapse with alcohol two days before and didn't show. e moni - tor decided he was no long willing to work with the worker. Seaspan management met with the re- habilitation consultant and recommended termination of the worker's employment. On Jan. 13, Seaspan sent the worker a ter- mination letter explaining that his contin- ued relapses and failure to follow his return 4 Canadian HR Reporter, a Thomson Reuters business 2016 CASE IN POINT: ACCOMMODATION

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