Sample Accommodation E-Lert

This sample Accommodation E-Lert was posted on January 14, 2021 within the category "Accommodating drug and alcohol addiction". A one-year subscription to Accommodation E-Lert provides instant access to the latest cases on the duty to accommodate in Canada and their impact on the unionized workplace.


An employee at a safety-sensitive pulp and paper plant was twice charged by police with driving a vehicle under the influence of alcohol.  After the second charge, a counsellor determined that the employee was an alcoholic.  Over the next eight years, the employer undertook substantial measures to accommodate the employee, including two paid leaves to attend a rehabilitation centre.  The employee subsequently failed a random drug-and-alcohol test upon arriving at work, and was terminated.  A New Brunswick arbitrator upheld the termination. 

Legal Citation 

UNIFOR Local 907 and J.B. v Irving Paper Limited, 2020 CanLII 89671 (NB LA) (November 6, 2020) (Michel Doucet)

Facts

Irving Paper Ltd. operates a large paper mill in Saint John, New Brunswick. 

The grievor commenced employment with the employer in February 2003 and was a Third Hand at the time of his termination in October 2019. 

The Third Hand position, along with all other positions at the mill part of the plant, was a safety-sensitive position. 

In 2008, the grievor disclosed to the employer that he had been criminally charged for operating a motor vehicle while under the influence of alcohol. 

The employer referred the grievor to Irving Health Services (IHS) which arranged for the grievor to be assessed by a substance-abuse professional. 

This assessment determined the grievor was only a social drinker, and that there was no disability to be concerned with at that time. 

In the fall of 2011, the grievor informed the employer that he had again been criminally charged for operating a motor vehicle while under the influence of alcohol. 

The employer again referred the grievor to HIS. 

A second professional assessment determined that the grievor suffered from alcoholism, a disability.  

Following this determination, the employer presented the grievor and the union with a substance abuse management agreement (SAM Agreement) allowing for, among other things, unannounced alcohol testing of the grievor. 

Both the grievor and the union agreed to the terms and signed the agreement. 

A number of years passed without incident.  However, in the fall of 2018, the grievor disclosed to the employer that he had recently been in a motor vehicle accident and was criminally charged for refusing to provide a breath sample when demanded by a peace officer. 

The grievor was again referred to HIS; he was professionally assessed; he was again diagnosed with an addiction disability, and he was presented with a new SAM Agreement. 

The grievor and the union signed the new SAM, which acknowledged the seriousness of his off-duty misconduct and the precariousness of his continued employment. 

The following year, the grievor informed the employer that he had been accepted into a 28-day inpatient rehabilitation program, set to being in April 2019 and finish in May. 

The grievor was given a paid short-term leave to attend the program. 

However, on two separate weekends following the commencement of the program, the grievor consumed alcohol and he was removed from the program. 

He advised the employer that he wanted to try again and was approved for another leave between May to June 2019. 

The grievor successfully completed the second rehabilitation program. 

He wanted to return to work in June 2019.  However, before he was allowed to return, the employer required him to sign yet another SAM Agreement, which he agreed to. 

Shortly after his return to work, the grievor was subject to an unannounced alcohol test upon his arrival for his shift.  He performed the breath test twice and both times it resulted in a positive test for alcohol use. 

The grievor denied drinking earlier in that day, but did admit that he was extremely intoxicated the night before.  He was sent home. 

The employer officially terminated him in October 2019 for breaching the employer’s drug and alcohol policy and the conditions of the SAM Agreement. 

Analysis

Arbitrator Michel Doucet began his analysis by deciding whether the union had established a prima facie case of discrimination:

“In this case, there is no debate that the grievor’s addiction to alcohol is a protected characteristic. There is also no dispute that there was an adverse treatment in the form of the termination of his employment. The issue in dispute falls on the third step of the prima facie test, which is establishing that the protected characteristic was a factor in the adverse treatment” [Emphasis added]

The employer relied on Elk Valley for their argument that the grievor’s disability was not a factor in his termination,¹ but Arbitrator Doucet decided that the facts of the present case were easily distinguishable. 

Therefore, he decided that a prima facie case of discrimination had been met. 

With discrimination established, the arbitrator then decided whether the employer could use the defence of a bona fide occupational requirement: specifically, accommodation to the point of undue hardship: 

“The question whether an employer has done what is reasonable to accommodate an employee is a fact-driven analysis. When an employee with alcohol abuse issues has failed to respond to multiple rehabilitation processes and there is no objective evidence that further efforts at accommodation are likely to succeed, it has generally been determined that the employer has accommodated to the point of undue hardship” 

Arbitrator Doucet also reiterated the principle that accommodation is a multi-party process that requires the active participation of the grievor: 

“The Employer having initiated an accommodation that was reasonable, it was the grievor’s duty to help in facilitating its implementation. The grievor’s failure to take the necessary steps to follow the recommendations made by the SAP, which were included in the various Substance Abuse Management Agreements, caused the accommodation process to founder. […] The only thing the Employer could do is offer the grievor assistance and this is what it did.

Any inclination I might have to give the grievor the benefit of the doubt is overwhelmed by his almost complete lack of adherence to the program of treatments set out for him by the SAP and the Substance Abuse Management Agreements. The grievor has no one else to blame but himself for his lack of commitment to recovery. The grievor had a duty to facilitate accommodation and make the necessary efforts to make the programs put in place to help him with his alcohol addiction work. What was required of him was a commitment to the treatment programs and, unfortunately, he did not seem to be willing to do this.” [Emphasis added]

Lastly, the arbitrator relied on the principles from Renaud that employers only have to provide reasonable accommodations:² 

“As I indicated earlier, there is always the possibility that one more thing could be tried and that one more treatment might be sufficient to turn things around. However, the test is not a forward-looking test requiring that the Employer continue looking at possible accommodation forever. If this was the test, it would mean that a disabled employee such as the grievor could never be terminated as long as there was any hope or possibility of recovery over and beyond the standard of undue hardship.” 

Arbitrator Doucet ultimately decided that the employer had provided accommodations to the point of undue hardship and therefore denied the grievance. 

Implications for Employers

Irving Paper sets an important example for employers for how to handle substance addiction cases, particularly in a safety-sensitive workplace.  While these situations often present a challenging and complex management situation, the employer in this case relied upon patience, a best-practice addiction treatment approach and a liberal understanding of the accommodation duty to offer reasonable opportunities to the employee to address his addiction and achieve sobriety.  Ultimately, his failure was not the result of the employer’s efforts.  

Implications for Unions

In substance addiction cases, unions can best assist their members by encouraging them to enter rehabilitation programs, to find positive ways to distance them from the problematic substance, and to accept that not everyone will succeed during their first attempt at sobriety.  The best chance for union success at arbitration will always be a grievor with a supportive medical prognosis for sustained sobriety and a persuasive path to becoming a productive employee again.  


¹  Stewart v Elk Valley Coal Corp., 2017 SCC 30. 
²  Central Okanagan School District No. 23 v Renaud, [1992] 2 SCR 970.