Alcoholism and drug addiction have been recognized as diseases pursuant to the definition of a “handicap” established within the Quebec Charter of Human Rights and Freedoms. Therefore, an employee suffering from limitations related to his or her addiction is afforded protection against discrimination guaranteed by the Quebec Charter in Article 10.
What does it mean to accommodate an employee with a handicap in the workplace? The Supreme Court of Canada answered this question in 2008 in the Hydro-Québec case. It stated that the duty to accommodate ends where the employee is no longer able to fulfill the basic obligations associated with the employment relationship for the foreseeable future. A certain flexibility must be considered if the employer believes the employee will be able to engage in productive work without causing undue hardship. The main purpose of accommodation is to ensure that an employee who has the capacity and abilities to work is not penalized for his handicap.
Under these circumstances, the main difficulty for an employer is essentially to know how far its duty extends in order to accommodate an employee suffering from alcoholism or drug addiction, and what can constitute an undue hardship which would justify the refusal to accommodate that employee. Case law has given some examples of what could be considered undue hardship for employers:
- The inability to make changes with respect to staffing;
- The substantial impact on the morale of other employees;
- The significant impact on the rules in the collective agreement;
- The accommodation would involve substantial changes to the usual rules of operation;
- The accommodation would involve excessive and unreasonable costs.
Although the concept of undue hardship can seem very demanding for an employer in the normal course of business, the accommodation process has to be bilateral. The cooperation of the employee, in controlling his addiction, and of the union, in the case of an unionised employee, is a key element in establishing whether the employer has a duty to continue to accommodate. As a result, all parties have to participate actively in the accommodation process.
In sum, the accommodation process between an employer and an employee suffering from alcoholism or drug addiction needs to be analyzed based on all the relevant circumstances on a case-by-case basis. The duty to accommodate is a complex notion and employers must prove that they have made concrete attempts to accommodate an employee before any dismissal based on undue hardship can be successfully claimed.
Written with the assistance of Antoine Bourget-Rousseau, summer student.