When a disability such as addiction won’t shield employees from being terminated for cause

Skip to Content News Archives Economy Energy Oil & Gas Renewables Electric Vehicles Mining Commodities Agriculture Real Estate Mortgages Mortgage Rates Finance Banking Insurance Fintech Cryptocurrency Work Wealth Smart Money Wealth Management Investor Personal Finance Family Finance Retirement Taxes High Net Worth FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials More Innovation Information Technology FP500 Podcasts Small Business Lives Told Tails Told Shopping Financial Post Store Obituaries Place a Notice Advertising Advertising With Us Advertising Solutions Postmedia Ad Manager Sponsorship Requests Classifieds Place a Classifieds ad Working Profile Settings My Subscriptions My Offers Newsletters Customer Service FAQ News Economy Energy Mining Real Estate Finance Work Wealth Investor FP Comment Executive Women Puzzmo Newsletters Financial Times Business Essentials This advertisement has not loaded yet, but your article continues below.HomeLegal PostWorkWhen a disability such as addiction won't shield employees from being terminated for causeHoward Levitt: Employees have obligations too, and cannot raise a disability or addiction for the first time only after being terminatedLast updated 25 minutes ago If the worker had told his employer that he suffered from addiction or if had produced medical documentation establishing a substance use disorder, the case might have looked very different. Photo by cozyta/Getty ImagesTermination for cause has been described by the courts as the ultimate corporate death penalty. It takes away an employee’s entitlement to notice, termination pay and severance. Courts therefore rightly demand compelling justification before allowing an employer to impose it.THIS CONTENT IS RESERVED FOR SUBSCRIBERS ONLYSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman, and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.SUBSCRIBE TO UNLOCK MORE ARTICLESSubscribe now to read the latest news in your city and across Canada.Exclusive articles from Barbara Shecter, Joe O'Connor, Gabriel Friedman and others.Daily content from Financial Times, the world's leading global business publication.Unlimited online access to read articles from Financial Post, National Post and 15 news sites across Canada with one account.National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.Daily puzzles, including the New York Times Crossword.REGISTER / SIGN IN TO UNLOCK MORE ARTICLESCreate an account or sign in to continue with your reading experience.Access articles from across Canada with one account.Share your thoughts and join the conversation in the comments.Enjoy additional articles per month.Get email updates from your favourite authors.THIS ARTICLE IS FREE TO READ REGISTER TO UNLOCK.Create an account or sign in to continue with your reading experience.Access articles from across Canada with one accountShare your thoughts and join the conversation in the commentsEnjoy additional articles per monthGet email updates from your favourite authorsSign In or Create an AccountBut there are circumstances in which paying someone to leave would be fraught with folly, economically reckless and a poor incentive to your remaining staff.A recent Ontario Superior Court decision involving a long-haul truck driver provides a useful example. It also exposes a misconception that has become increasingly common in workplaces: that invoking addiction or another disability as an excuse for misconduct can shield an employee from the consequences of breaking a workplace rule.FP Work touches on HR strategy, labour economics, office culture, technology and more.By signing up you consent to receive the above newsletter from Postmedia Network Inc.A welcome email is on its way. If you don't see it, please check your junk folder.The next issue of Work will soon be in your inbox.We encountered an issue signing you up. Please try againWhere a genuine disability is involved, employers have a legal obligation to accommodate. But accommodation is not absolution. Employees have obligations too, and cannot raise a disability for the first time only after being terminated.That distinction was decisive in the case of the long-haul trucker, who worked on cross-border routes for four years before failing a random drug test — twice.When he was hired, he signed an acknowledgement agreeing to comply with his employer’s workplace rules, including a zero-tolerance drug and alcohol policy.The employer did not immediately fire him. Instead, it required him to participate in a return-to-work program that included an educational component on testing requirements.He went back to work, passed more random drug testing, and signed another written acknowledgement saying that failure to do so in the future could result in his immediate termination.Then, nearly three years later, he failed again. This time, his employer fired him for cause.The trucker sued for wrongful dismissal. But he did more than challenge the termination. He alleged discrimination, arguing that the employer had unfairly targeted him because of a substance use disorder.That allegation raised an important issue under Canadian human rights law.Employees are protected from discrimination based on specified personal characteristics, including race, religion, age, family status and disability. Addiction can constitute a disability.When a workplace rule adversely affects an employee because of a protected disability, an employer may have a duty to accommodate the employee to the point of undue hardship.But there is a critical point that is often forgotten in discussions about accommodation.Accommodation is a two-way street.An employee cannot remain silent about a disability, withhold the information necessary to permit accommodation and then, after being fired, argue that the employer should somehow have known what was never disclosed.This advertisement has not loaded yet.This advertisement has not loaded yet, but your article continues below.Employees have obligations in the accommodation process. They may have to provide medical information, cooperate with reasonable requests and participate in finding a workable solution. They do not get to dictate the accommodation they prefer.The duty to accommodate extends to the point of undue hardship — a high threshold assessed on recognized factors including excessive cost, available outside funding and health and safety considerations.That last factor is particularly important in an industry where safety is paramount.Plus, the employee never reached the accommodation stage.There was no assertion that he had a substance use disorder requiring accommodation, no medical documentation establishing dependency and no evidence that management perceived him to have a disability.What was evident was a second positive drug test, in a safety sensitive job — cross border commercial trucking — and a zero-tolerance drug policy.There was a signed acknowledgement that he knew the rule. And a previous opportunity to correct his conduct.The employer had warned him. It had put him through a return-to-work program. It had given him another chance, but he failed again.The court found that termination for cause was justified and appropriate.This decision should not be misunderstood. It does not give employers permission to slap a zero tolerance label on a policy and fire employees whenever they want. Quite the opposite.A zero-tolerance policy is only as valuable as the process surrounding it.Employers need clear policies, written in language employees can understand. They should have employees acknowledge those policies in writing. They should enforce them consistently, and they should document what happens when an employee violates them.The employer succeeded in this case because it could prove all those things.It could produce the rule. It could produce the signed acknowledgement. It could demonstrate the violation. And it could show that it had not rushed to fire the worker the first time.The return-to-work program was particularly important. It was not evidence of employer weakness but of employer fairness.That distinction can be worth a fortune in litigation. Courts scrutinize drug and alcohol testing policies carefully. Rightly so. Employers cannot simply impose invasive testing regimes because they find them convenient. Proportionality matters.A truck driver hauling commercial freight across an international border is not the same as an employee sitting at a desk. When an employee’s impairment can put other motorists, pedestrians and co-workers at serious risk, the employer’s legitimate safety interests become far more compelling.That is why employers need to distinguish between rules that are merely convenient and those that are genuinely necessary to protect people.There is another lesson here that may be even more important.The moment an employee says, in substance, “I have an addiction and I need accommodation,” the employer should not quickly proceed with the termination. That disclosure may fundamentally change the legal analysis.If the trucker had told his employer that he suffered from addiction or if had produced medical documentation establishing a substance use disorder, the case might have looked very different.The employer would have had to consider its accommodation obligations.Managers therefore need to understand that an employee raising a disability is not necessarily making an excuse, and that the admission may trigger a legal obligation.Stop. Ask the right questions. Obtain appropriate medical information. Then decide what to do.Employees cannot have it both ways. Human rights legislation protects people from discrimination because of disabilities. It does not give employees retroactive immunity from legitimate workplace rules.For employers, the broader lesson is brutally simple. Cause is won long before the termination meeting.It is won when the policy is drafted, and when employees acknowledge it. It is won when managers apply it consistently and when warnings are documented. It is won again when an employee is given a genuine opportunity to correct misconduct.It is also won when management recognizes a disciplinary problem may involve a disability requiring accommodation and chooses to do nothing precipitous.By the time an employer is sitting across the table from an employee holding a termination letter, the legal battle has usually already been fought.Smart employers do not wait until then to find out if they have cause.They build the case in advance.And before pulling the trigger on a for-cause dismissal, they should spend a little money having employment counsel test the decision.A lawyer’s bill for that call will always cost less than the cost of discovering six months later, in a courtroom, that the company’s supposedly ironclad case was anything but.Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practises employment law in all provinces and is the author of six books, including the Law of Dismissal in Canada. Michael Kennedy is an associate at Levitt LLP.We apologize, but this video has failed to load.Notice for the Postmedia NetworkThis website uses cookies to personalize your content (including ads), and allows us to analyze our traffic. Read more about cookies here. By continuing to use our site, you agree to our Terms of Use and Privacy Policy.