Canadian Employment Law Today

October 25, 2017

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Employee addictions and undue hardship Employer discovers that the duty to accommodate an employee's addiction doesn't end with the first relapse BY JEFFREY R. SMITH A n Ontario employer that sup- ported an employee who came forward with a drug addiction did not live up to its duty to accom- modate when it dismissed him after one re- lapse, an arbitrator has ruled. Taylor Letwin was hired as a seasonal la- bourer in the Niagara region of Ontario by Toronto-based natural gas company En- bridge Gas Distribution in May 2010. About one year later, the company made him a full- time labourer. His job duties included oper- ating a directional drill and hand tools to dig, set up traffic controls, helping equipment operators, and manning a fire extinguisher during installation and repairs. While he worked, Letwin was expected to learn the tasks and work under the direction of gas technicians, as well as familiarize him - self with safety procedures and Enbridge pro- cesses. It was common practice for labourers who did well to attend Enbridge's training program and become gas technicians them- selves. Letwin had a history of substance abuse beginning when he was 13 and involving co- caine, marijuana, speed, and crystal meth. He had attended a treatment program on two occasions, achieved sobriety in 1999 and re- mained sober for 12 years until he began us- ing cocaine and marijuana in late 2011 when he started a relationship with a woman who was a drug user. During his sober period, he attended Narcotics Anonymous meetings but didn't follow the principles of the 12-step program or avoid temptation. ere were no issues with Letwin's job performance nor did he have any discipline over his first two years with Enbridge. On May 9, 2012, he drove in his own vehicle from the Niagara region to Toronto. At the time, he was using cocaine and continued to use it during the trip. ough he hadn't intended to go to Enbridge's head office, he ended up there and called his supervisor to say he was "messed up" and needed help. His supervisor contacted Enbridge's man - ager of operations for Niagara, who was at the head office at the time, and he tracked down Letwin in the parking lot. Soon after, Enbridge made arrangements and paid for Letwin's placement in a 30-day residential treatment program that cost $25,000. Letwin was also placed on short- term sickness benefits while he attended the program, and his supervisor and the man - ager of occupational health both visited Le- twin in the program to assure him he had the company's support. Letwin's initial assessment in the program identified another non-substance addiction in addition to his drug addiction, so he stayed for longer than 30 days. When he was dis - charged, the facility's report indicated it was "very important for him to participate regu- larly in a 12-step program and work with a sponsor." It also recommended an aftercare program in Niagara and that he should join a 12-step group with at least three weekly meetings. Return to work conditions Enbridge management met with Letwin and a union representative on July 3, 2012, to discuss Letwin's return to work. It was determined that Letwin could not operate a company vehicle or have equip- ment, he couldn't work alone in a safety- sensitive position — a position "where impaired performance could result in a catastrophic incident affecting the health and safety of the employee, co-workers, the public or the environment" — and Letwin would be subject to "close super- vision and monitoring." Enbridge also required Letwin to attend an aftercare program that included a mini program at the rehabilitation facility four times per year, weekly meetings at a local support network — with proof of atten - dance — and random urine testing. is was sealed with a letter stating that Enbridge wouldn't pay for any further treatment costs and "if you are found to be under influence of drugs or alcohol in the workplace and when driving a company vehicle you will be terminated for cause." e manager of occupational health kept in touch with Letwin, first weekly and then bi-weekly, to monitor his progress. Letwin reported that everything was going well without any problems. Letwin kept good at - tendance and continued to perform well, so in August 2012 the company lifted his limita- tion on driving company vehicles. However, Letwin didn't tell anyone that he wasn't following his aftercare program or at- tending 12-step meetings regularly, nor did he provide any meeting attendance records. He also didn't have a sponsor and Enbridge didn't request any urine samples for testing. In September 2012, he started using cocaine on the weekends. On the morning of Oct. 29, Letwin texted his supervisor to say he wasn't coming into work because he had food poisoning. His su - pervisor couldn't reach him on his personal phone after several attempts — which was unusual — and worried that Letwin had re- lapsed because of a verbal altercation at work the previous week. e next day, Letwin reported for work and his supervisor and the manager met with him to discuss the fact Letwin had breached company procedure by texting instead of calling to report his absence. e supervi - sor observed that Letwin seemed fidgety and unable to settle down. Letwin showed them an ingrown toenail that was bothering him and talked disjointedly about his foot and the food poisoning. ey sent Letwin to another area of the office to catch up on some online training. While at the computer, Letwin spoke to the manager of occupational health and told her he hadn't relapsed. e OHS manager thought he was fine and told the supervisor and manager he could go back to work. How - ever, they were still worried, especially when Letwin kept getting up from the computer to come by and say things like "I'm totally clean," and seemed nervous and "hyped up." ey decided Letwin was high and he should take a urine test. Letwin said, "No problem, I'm clean, let's go." However, when they arrived at the testing facility, Letwin said, "I've been using, I'm going to fail." EMPLOYERS ARE required to accommodate employee disabilities such as drug addictions to the point of undue hardship. But when is undue hardship reached? To one Ontario employer's surprise, not after the first relapse. 4 Canadian HR Reporter, a Thomson Reuters business 2017 CASE IN POINT: ACCOMMODATION BACKGROUND

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