I don't practice in a specific area of labour law. However, I represent many businesses, and employment issues are usually the single largest potential liability area. As a business lawyer, I think it's important to understand all of the legal factors that can affect a small business.
While addressing the issue of employees a liabilities sounds ominous, I would also like to point out the flip side of this observation (or the reverse side of the same coin) is that employees are also our biggest strength. If, as a business owner, you are lucky enough to employ dedicated, competent employees, you will understand what I mean by this. A good team not only makes an owner's job so much easier, but it also guarantees and stabilizes the fundamentals of our businesses.
But this article is not about running a business with a great team. This article is about the challenges a business owner (or manager) faces when a team member falters.
In Manitoba (actually in all provinces, as each province enacted similar legislation), the government enacted The Human Rights Code. The Code forbids employers from discriminating against their employees. Discrimination is also defined. The law (or Code, if you prefer) establishes discrimination occurs when (in the case of employment) an employee is treated differently based on a characteristic listed below or based on that employee's association with a class or group of people instead of personal merit.
(a) ancestry, including colour and perceived race;
(b) nationality or national origin;
(c) ethnic background or origin;
(d) religion or creed, or religious belief, religious association or religious activity;
(e) age;
(f) sex, including sex-determined characteristics or circumstances, such as pregnancy, the possibility of pregnancy, or circumstances related to pregnancy;
(g) gender identity;
(h) sexual orientation;
(i) marital or family status;
(j) source of income;
(k) political belief, political association or political activity;
(l) physical or mental disability or related characteristics or circumstances, including reliance on a service animal, a wheelchair, or any other remedial appliance or device;
(m) social disadvantage.
If an employee exhibits or presents any of these characteristics and that characteristic requires the employer to change something in the workplace, then the employer must accommodate.
For example, if you employ someone who is later involved in an accident and the employee becomes confined to a wheelchair, the employer will have a duty to accommodate the employee by ensuring they can enter the building, use the washrooms, and continue performing duties they had before. If that is not possible, then the employer must move that employee to another position where accommodation is possible.
However, an employer has no obligation to accommodate an employee at all costs. This is reasonable because, especially in a small business, the accommodation types could bankrupt the small business. From a policy perspective, governments don't want viable and profitable small businesses to go bankrupt for something out of their control. However, the keyword in this phrase is UNDUE.
The Supreme Court of Canada stated the following: "Morethan mere negligible effort is required to satisfy the duty to accommodate. The use of the term "undue" infers that some hardship is acceptable; it is only "undue" hardship that satisfies this test. This means that an employer must make a significant effort to accommodate. Human rights tribunals will not look kindly upon those who make little effort.
Unfortunately, as in most legal concepts, courts and tribunals have not established a clear and specific test to determine whether an accommodation results in an undue hardship. The Supreme Court listed some of the factors that may be considered but emphasized that each case must be judged on the specific facts of the situation. The court listed the following factors:
The size of the employer's operation may influence whether a given financial cost is undue for the ease with which the workforce and facilities can be adapted to the circumstances. Where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations.
The medical establishment has long accepted that addiction is a mental health problem. Courts and tribunals have also accepted this idea. In fact, in most of the cases I reviewed, the decision-maker spends little time discussing the applicability. Rather, most decisions resolve the issue of accommodation.
So, to answer the questions above: Yes, an employer must accommodate an employee with addictions.
In Manitoba, Horrocks v. Northern Regional Health Authority, 2015 MBHR 3, the Manitoba Human Rights Tribunal adjudicated on an addiction issue. In this case, as stated above, the employee missed several days of work, and her supervisor found her intoxicated at work. The Health Authority met with the employee and requested that she sign an agreement whereby she would abstain from alcohol at home and at work, attend AA meetings, participate in counselling with a mental health worker, and attend a treatment facility for a 21-day program. Finally, the agreement included a clause stating that she would be terminated for just cause if she breached the agreement.
The employee refused to sign the agreement as she found it was too demanding. Through her efforts, she had also already started similar programs and activities. Consequently, the employer terminated her.
The Tribunal reviewed the facts, the arguments from both sides and the law. The employer argued that the agreement was necessary; otherwise, returning the employee to work would constitute a risk to the other staff and patients' safety. They could not accommodate that without undue hardship.
The Tribunal ultimately rejected the argument. The employer failed to consider the employee's particular circumstances and build a plan based on her needs. Instead, it took a unilateral approach, which, in my opinion, was over-broad. For example, why did the employer insist on AA when the employee was already attending AFM (Addiction Foundation of Manitoba)?
The Tribunal ordered the employer must develop a more reasonable policy to deal with this situation. It further ordered that the employer reinstate the employee and pay her for lost wages for the period she did not work for them. Finally, the Tribunal ordered the employer to pay an additional $10,000.00 in damages for; "the injury to her dignity, feelings, and self-respect."
As you can see from this example, the Human Rights Tribunal exercises a considerable amount of power. While in that case, the Health Authority could easily absorb these types of expenses, a small business would not fare as well. Consider the cost of retaining legal counsel; in addition to the damages ordered, one could easily see how an event like this could result in tens or even hundreds of thousands of dollars. In this case, the Tribunal rendered its decision in 2015. The employee was terminated in 2011. That amounts to approximately four years of salary.
Consequently, employers who ignore the law and act unilaterally face considerable liability. In business, it pays to educate yourself. In this case, the payoff is in the avoidance of unnecessary costs. If you have an employee with addiction issues, consult a lawyer before taking action. The short-term costs will far outweigh the long-term liability. Interested in this subject? Read about how the legalization of marijuana will impact Manitoba and how wages in lieu of notice works.
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact Philippe Richer at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).
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