Typically, employees are not permitted to use drugs in the workplace. However, there are cases where employees will use drugs and/or alcohol in the workplace because of an addiction. Both the Ontario Human Rights Code and the Canadian Human Rights Act have been interpreted to find addiction to be a disability. Therefore, employers are required to accommodate employees who are addicted to drugs and/or alcohol up to the point of undue hardship.

Addressing drug addiction in the workplace is difficult. It tends to be a balance of allowing the employee to try to get clean while also dealing with the risk of a relapse. Typically, it is best to seek advice from a human rights or employment lawyer when trying to accommodate an employee who is struggling with addiction. Even with good representation, it can still be easy to get it wrong. Such was the case in Canadian National Railway Company v Teamsters Canada Rail Conference (2024 CanLII 87128).

Canadian National Railway Company v Teamsters Canada Rail Conference (2024 CanLII 87128)

In Canadian National Railway Company v Teamsters Canada Rail Conference, Jason Gillis who worked for thirteen years as a train conductor had a lengthy history of drug addiction. Mr. Gillis self-disclosed that he had a drug dependency on cocaine. This led the Canadian National Railway Company (CN) to get Mr. Gillis to sign a Relapse Prevention Agreement (RPA), which required him to abstain from drugs, participate in treatment programs, and be monitored on his process for two years. Approximately nine months later, Mr. Gillis relapsed and tested positive for illegal drug use. CN got Mr. Gillis to sign a new agreement, which is the same as the RPA, but extended the monitoring to five years. Only two months later, Mr. Gillis was in a car accident, which he later pleaded guilty to being impaired while driving, which he admits was caused by a relapse. This violated the second RPA, which the employer used as grounds to terminate Mr. Gillis for cause. The union, on behalf of Mr. Gillis, grieved his termination.

The arbitrator allowed the grievance. The arbitrator found that Mr. Gillis has a diagnosed substance abuse disorder and is therefore entitled to human rights protections. The arbitrator found that Mr. Gillis’ substance abuse caused him to violate the agreements. Ultimately, the arbitrator found that there was a prima facie case of discrimination. Though CN tried to argue that its previous attempts at accommodating Mr. Gillies demonstrated that they were at the point of undue hardship, the arbitrator disagreed. The arbitrator found that based on the facts of this case, Mr. Gillis was entitled to a last chance agreement, especially considering the improvements Mr. Gillis had made in his treatment since his termination. Therefore, Mr. Gillis was reinstated with the pay he would have been entitled to had he been permitted to get short-term disability payments.

Takeaways from Canadian National Railway Company v Teamsters Canada Rail Conference

This case shows that there is no set way of addressing an employee’s drug dependency. Arbitrators will look at the specific facts of the case. How they will interpret the attempts to accommodate an employee is challenging. CN is a sophisticated employer, that had capable legal counsel, who to the arbitrator’s findings, almost established cause to terminate Mr. Gillies, but still got the ultimate issue of undue hardship wrong. Therefore, it is important to retain a lawyer who is up to date on the law regarding accommodating an employee who suffers from a substance abuse disorder.

How Suzanne Desrosiers Professional Corporation can help

At Suzanne Desrosiers Professional Corporation we have a team of employment lawyers who keep up to date on the evolving field of employment law. If you are an employer who is dealing with an employee who has a substance abuse disorder, we can help you through the process of trying to accommodate the employee up to the point of undue hardship. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.