Battling personal demons while surrounded by them

Should employers who make drugs and alcohol be expected to keep on employees who are addicts?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Addiction to drugs and alcohol can cause disruption in all aspects of one’s life. When it flows into a person’s professional life, it causes problems for the employer as well.

It can be a sticky area when an addict starts causing trouble at work since, in most cases, the employer can’t simply fire her for misconduct. Addiction is a disability and if the employee’s misconduct is in any way tied to the addiction, the employer is required to look at accommodation to give the employee a chance to rehabilitate and save her job.

But what if the job involves being around the source of the addiction? What if it isn’t the misconduct or unreliability caused by the addiction but the addiction itself that puts the employer at risk because of the nature of its business?

A couple of years ago, Moosehead Brewery had to deal with an employee who was an alcoholic. The brewery initially dismissed the employee, but later relented and hired him back under a “last-chance” agreement the provided for periodic unannounced drug and alcohol tests.

Less than two months after signing the agreement, the employee tested positive for marijuana use and the employee admitted to smoking it six hours before a shift. The employee argued the test, which was administered eight days after he smoked the drug, wasn’t evidence of on-duty impairment, just past use.

But the arbitrator found the last-chance agreement prohibited any use of drugs or alcohol, since he was an alcoholic and “complete sobriety and total abstention from mood altering drugs was critical to his recovery.” The arbitrator, and two appeal courts earlier this year, upheld the dismissal.

Moosehead accommodated the employee by allowing him to continue to work under a last-chance agreement. Though the violation of the agreement was from drug use, the fact it was an alcoholic working at a brewery raises other questions. Does the fact the employee’s disability is related to the employer’s business lower the requirement for undue hardship?

It wouldn’t be surprising for a brewery, or any other manufacturer of alcoholic beverages, to be more than a little nervous to find out one of its employees was an alcoholic, particularly if the employee was directly involved in the handling of or had easy access to the product. The same could be said for pharmacies, medical centres or drug companies who employed drug addicts. The possibility for relapse and theft of product, as well as perhaps even insurance complications, might be an issue. Should they be forced to accommodate individuals with these conditions at the risk of harm to their business?

People with addictions are faced with tough battles and should be given assistance to fight their addictions as much as possible, including help from their employer in getting treatment. But if their job involves easy access to that which they are fighting against, the temptation to relapse and the financial risk to the employer could be great.

It’s been said that it’s common for recovering addicts to relapse at least once or twice before they beat their addiction. Can an employer whose business relies on the source of the addiction afford to keep them around?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com

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