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Abstinence is best?

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The people who ran the Northern Lights Manor (the “Manor”), a personal care home in Flin Flon, Manitoba, certainly thought so.  However, their steadfast belief in this approach to dealing with alcohol addiction has now led to a very costly legal decision against the Manor.

Linda Horrocks worked at the Manor as a health care aide for several years before she disclosed the fact that she had been charged with driving under the influence of alcohol in the context of discussions about concerns with her absenteeism.  Six months later, Ms. Horrocks was suspended when she was discovered at work under the influence of alcohol.  In a discussion which followed the incident, Ms. Horrocks revealed that she suffered from alcohol addiction.

In response to this incident, administration presented Ms. Horrocks with a Memorandum of Agreement (the “Agreement”) which she was required to sign if she wished to return to work.  One of the terms of the Agreement was that Ms. Horrocks abstain from alcohol consumption at all times, and any breach of the Agreement would constitute just cause for her termination. On the advice of her union, Ms. Horrocks refused to sign the Agreement and she was fired as a result.

Ms. Horrocks’ union grieved her termination and, following negotiations between the parties, Ms. Horrocks agreed to sign a revised version of the Agreement in order to settle the grievance and be reinstated to her job.  Although revised, the Agreement continued to require that Ms. Horrocks abstain from all alcohol consumption.  Ms. Horrocks did not agree with this provision but signed the Agreement (against the advice of her union) because her financial situation was getting desperate.

Within several weeks of signing the Agreement, someone in the community reported to the Manor that Ms. Horrocks appeared to be under the influence of alcohol at the grocery store.  A representative of the Manor also reported having called Ms. Horrocks on the telephone at home and believed her to be under the influence of alcohol.  In response to these two reports, and Ms. Horrocks subsequent denial that she had been drinking on these occasions, the Manor took the position that the Agreement had been breached and fired Mr. Horrocks for the second time.  Ms. Horrocks filed a complaint with the Manitoba Human Rights Commission alleging that she had been discriminated on the basis of disability and that the Manor had failed to accommodate her.

The decision in this case contains some excellent reminders for employers facing the challenge of accommodating employees with disabilities in the workplace.

The Time to Question the Existence or Nature of the Disability is not at the Hearing

This was not an issue in this case because it likely was clear to all that Ms. Horrocks did suffer from alcohol addiction, which is clearly known to be a disability in human rights law.  In fact, Ms. Horrocks did not even lead medical evidence at the hearing to prove her disability and the Manor did not challenge this.  If they had, however, the time to do this would have been while the employment relationship was ongoing and in the context of the request or need for accommodation.  Requests for such medical confirmation must be done with sensitivity and delicacy but they can be done.

Accommodation Must be an Individualized Process

What became clear at the hearing was that the two administrators at the Manor who drove the decisions associated with crafting the Agreement did so based almost entirely on their own personal experiences with alcohol addiction and their corresponding assumptions about the needs of persons who suffer with this type of condition.  No efforts were ever made to try and determine whether the assumptions on which their decisions were based were actually appropriate in the case of Ms. Horrocks specifically.  The Manor was aware that Ms. Horrocks was actively engaged in addictions counselling and her counsellor had been in contact with the Manor.  Despite this, the Manor never made any efforts to confirm whether the terms of the Agreement were appropriate for use with Ms. Horrocks specifically.  The Board criticized the use of the Agreement as a result, and specifically held that “each individual is entitled to an accommodation which is based on an individualized assessment of his or her specific needs.”

Undue Hardship Arguments Can’t be Impressionistic

The Manor also attempted to rely on evidence that relapse is a recognized part of alcohol use disorder and argued that the risk of relapse in a facility which houses patients mostly over the age of 80 with significant personal care needs would be undue hardship because of safety concerns.  However, it was ultimately held that the Manor did not provide sufficient evidence to establish that it would have been an undue hardship to put in place processes or procedures to accommodate the needs of Ms. Horrocks while also ensuring the safety of co-workers and patients.  In fact, the evidence was that the Manor took no proactive steps to minimize the safety risks associated with returning Ms. Horrocks to the workplace.

Human Rights Cases can be Costly

In the end, the Manor was found to have failed to satisfy either the procedural or substantive elements of the duty to accommodate Ms. Horrocks’ alcohol addiction.  The Manor was ordered to reinstate Ms. Horrocks to their workplace, despite the fact that, by the time of the decision, it had been four years since she was terminated.  The Manor was further required to compensate Ms. Horrocks for all back pay to which she was entitled for the four year period, taking into account any periods within this time when she was not well enough to work and any other income that she earned in the interim.  Finally, the Manor was ordered to pay to Ms. Horrocks an amount of $10,000 for injury to her dignity, feelings and self-respect, and the Manor was further ordered to develop and implement a reasonable accommodation policy.

Christine Thomlinson

About the Author: Toronto Employment Lawyer Christine Thomlinson is a co-founder and co-managing partner of Rubin Thomlinson LLP. Appearing regularly on Best Lawyers and Leading Practioners lists in Canada, Christine is known for her high capability to think strategically, and her ability to find practical, often innovative, legal solutions to her clients’ challenging workplace issues.