By Jeffrey R. Smith ([email protected])
Addiction to drugs and alcohol has been recognized as a physical disability that must be accommodated by the employer to the point of undue hardship. Much of the rationale for this is that addiction is considered a disease those who suffer from it can’t control. For example, an employee could show up for work intoxicated or have a drink while on the job because she was unable to suppress the desire for a fix. This lack of control is important in determining if an addiction is truly a disability.
However, it can be difficult for employers to determine if an employee is addicted, particularly if it involves a drug such as marijuana. The effects of marijuana are generally considered to be not as serious as harder drugs or alcohol and cases of users losing complete control of themselves are not as common.
A long-time Alcan worker in British Columbia was caught smoking marijuana in the workplace and fired, since he worked with dangerous materials and machinery and the employer had a zero-tolerance policy towards drug and alcohol use in its safety-sensitive workplace. However, when he was let go, the worker claimed he had a “problem.”
The British Columbia Arbitration Board recently found the worker had an addiction to the drug. He was fully aware of the employer’s zero-tolerance policy, the potential danger of smoking marijuana in the workplace and made a conscious choice to do it anyway, but the board ruled his addiction influenced his choice, causing a moderate loss of control. This was enough, according to the board, to rate the marijuana addiction as a physical disability that had to be accommodated.
This raises some red flags for employers, as it might make it harder to fire employees who make conscious decisions to flout drug and alcohol use policies — and then claim addiction as an excuse.
While nobody would deny addiction is real, and can be a disability, this ruling (and other rulings on accommodating addiction related to substance abuse) raises a number of interesting questions: Are employees abusing the employer''s duty to accommodate disability to the point of undue hardship as a "get out of jail free" card when they''re caught? Or are employers simply being too hard handed and zealous in firing workers for using drugs in the workplace, bypassing things like progressive discipline and accommodation?
And if only a “moderate loss control” is considered a disability, how much culpability does the employee have in making the choice to use drugs at work?
For more information see:
•Rio Tinto Alcan Primary Metal v. CAW-Canada, Local 2301, 2008 CarswellBC 3072 (B.C. Arb. Bd.).
