What is the Duty to Accommodate Disability in Ontario?
What does the Ontario Human Rights Code say about substance abuse as a disability?
The Ontario Human Rights Code protects employees from discrimination in employment on several grounds, including disability. Disability encompasses several physical, psychological and mental conditions. Severe substance abuse is considered a form of substance dependence, which is recognized as a form of disability. Abuse of substances including alcohol, legal drugs, and illicit drugs constitute examples of disability within the meaning of the Code.
An employee has a responsibility to communicate the need for accommodation to their employer and to cooperate to allow the employer to provide the appropriate accommodations. If an employee refuses accommodation offered by the employer, and if progressive discipline and performance management steps have been implemented, then the employer may seek additional steps to address the employee’s conduct, which may include suspension or termination of employment.
What is the employer’s duty to accommodate substance abuse?
Otherwise, if an employee’s drug or alcohol addiction is interfering with an employee’s ability to perform the essential duties of their position and the employee seeks accommodations from the employer, the employer has the duty to accommodate the employee’s substance abuse to the point of undue hardship. If an employer can demonstrate that implementing the required accommodations would cause undue hardship, the employer will be relieved of the duty to accommodate. Undue hardship may include demonstrating that the cost of the accommodation would alter the nature or viability of the business, or that the health or safety risks to workers or the public are serious that it outweighs the benefits of providing equal treatment to the worker with an addiction or dependency.
When can employers require drug and alcohol testing?
Several options that employers can use to accommodate an employee suffering from substance abuse include requiring the employee to go on leave to seek treatment and recovery, reduced hours to accommodate disability-related needs, or placing the employee in rehabilitation programs. Employers may also initiate drug and alcohol testing, however the employer must show that the drug and alcohol testing is essential for the employee to perform their job. Drug and alcohol testing is more frequent for jobs that are safety-sensitive. Employers should considering having a comprehensive policy on drug and alcohol accommodation to address drug and alcohol dependence in the workplace and to provide employees with information to request accommodation if needed.
How can Whitten & Lublin help?
If you are an employee who needs further information with respect to seeking accommodation for drug or alcohol abuse, or if you are an employer seeking further information with respect to the employer’s duty to accommodate employees with substance abuse issues, contact us for further information online or by calling (416) 640-2667.
Author – Abby Leung