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Separating Misconduct from Discriminatory Grounds of Illness/Disability

Whitten and Lublin | Apr 18, 2018

Human Rights law protects individuals in a workplace setting from being discriminated against on the basis of illness/disability. This applies whether the policy or practice overtly discriminates against an employee or has an unintentional discriminatory effect upon an employee’s disability/illness.

A common example is attendance policy and absenteeism due to an illness or disability. Suppose employees under such a policy are disciplined for absenteeism after 10 absences. Employees that are absent due to an illness or disability would undoubtedly face adverse discrimination as a result of their illness. An employer here would be in violation if accommodation did not result in undue hardship. Conversely, if an employee with an illness/disability fails to comply with an aspect of an attendance policy that his/her illness/disability had no impact in complying, then disciplinary action would be permissible. This simply could be requiring an employee to call in before the start of a shift for which he/she will be absent due to illness/disability. If the illness/disability plays no part in preventing an employee from calling in, then the policy would have no discriminatory effect.

An example that illustrates the above includes Stewart v. Elk Valley Coal Corp (SCC 2017). In this case, the employer (Elk Valley) had a policy in place that required those that used drugs to disclose any addiction or usage issues to their employer. The employer would then offer the employee treatment. However, if an incident occurred and the employee then tested positive for drugs, this would result in a dismissal. After an incident in which Stewart’s (the employee) loader truck he was operating struck another loader truck, Stewart admitted to frequent use of cocaine. Stewart was offered treatment as a condition to remain employed, however, did not accept and was therefore terminated.

Although this workplace policy had an adverse effect upon employees suffering from an addiction (which is classified as a disability under human rights law), it was determined that an addiction does not prevent someone from reporting this to their employer. Further, the policy targeted those that failed to follow the policy (report an addiction and attend/seek treatment) and not specifically the disability of addiction itself. Overall, it is a fine balance when enforcing a policy and imposing the ultimate penalty of termination when dealing with substance abuse and addiction in the workplace. If it is found that just part of the reason for discharge was a result of the addiction, employers that do not fulfill their duty to accommodate may be liable for significant monetary damages. It is always advisable to seek consultation with an employment lawyer for implementing and enforcing such policies as mentioned above.

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