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Workers share duty in addiction fight

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Workers share duty in addiction fight

OTTAWA—The Supreme Court of Canada has declined to hear appeals of two British Columbia court decisions concerning an employer's duty to accommodate employees with drug addictions.

In British Columbia Nurses' Union vs. Health Employers Assn. of British Columbia, the British Columbia Court of Appeal reinstated an employer's decision to terminate an employee who had been fired in relation to his drug addiction.

Ron Bergen, a registered nurse at the Kootenay Boundary Regional Hospital, was fired in spring 2003 for failing to abstain from using drugs, stealing drugs and dishonesty--a termination that became the basis of a grievance filed by his union.

A grievance arbitrator overturned the hospital's decision to terminate the nurse, saying that Mr. Bergen's drug addiction was an illness and a disability under provincial human rights law, that his addiction was causally connected with his misconduct at work and that the employer failed to consider accommodating him by finding a job where he would have no access to drugs.

In February, the Court of Appeal overturned the arbitrator's decision and cited the arbitrator's failure to consider that Mr. Bergen had a duty to facilitate the accommodation process and that he had been given two previous opportunities to rehabilitate his addiction. "Addiction, as a treatable illness, requires an employee to take some responsibility for his rehabilitation program," the ruling said. "Mr. Bergen failed to discharge that duty, and the duty to accommodate was exhausted."

The court's statement that employees have an obligation to participate in the accommodation process was beneficial to Canadian employers, said Andrea York, a partner in the labor and employment practice of Blake, Cassels & Graydon L.L.P. in Toronto. "The employee basically can't sit back and let the employer do all the work, which is good news for employers," she said.

In Kemess Mines Ltd. vs. International Union of Operating Engineers, Local 115, the Court of Appeal upheld an arbitrator's finding that the employer had not accommodated the employee to the point of undue hardship.

The case began when Mark Gardiner, an employee of Kemess Mines, was fired in August 2004 after he was caught smoking marijuana in his room at the mine site, contrary to the employer's zero-tolerance policy on drug use.

At an arbitration hearing, the employer said Mr. Gardiner's conduct warranted dismissal, but the union argued that the firing violated the provincial human rights code because the employer had not accommodated Mr. Gardiner to the point of undue hardship.

The arbitrator ordered the mine to reinstate Mr. Gardiner, finding that the employer had not fulfilled its duty to accommodate. Instead, the arbitrator imposed a 10-month disciplinary suspension on Mr. Gardiner and ordered him to abstain from drugs, complete a treatment program and attend substance abuse support meetings.

In appealing the decision, the mine company argued that it was not discriminatory to dismiss an employee for failing to abide by its drug policy unless the employee can show that his addiction actually prevented him from complying with that policy. The employer expressed concern that accommodation of employees such as Mr. Gardiner would undermine the purpose of its policy, which was designed to address valid workplace safety issues. The employer also argued that it accommodated all its employees proactively by providing an employee and family assistance program that an employee could contact to seek assistance with drug problems.

While acknowledging that an addicted employee does have a duty to facilitate accommodation through rehabilitation, the Court of Appeal said the scope of the employee's duty varies depending on several factors, including whether the employee is in denial or unaware of the addiction. The court upheld the arbitrator's finding that Mr. Gardiner was not fully aware of his addiction and that it would be wrong to conclude that his failure to seek help ended the employer's duty to accommodate.

While also acknowledging the employer's legitimate safety concerns in establishing its drug policy, the court found that the deterrent nature of the policy would not be seriously undermined by the arbitrator's decision, especially since the arbitrator imposed a suspension on the employee.

"I don't think you can say there will be zero tolerance and everybody will be terminated," Ms. York said. "The level of discipline has to vary depending on the case."

Last week's refusal by the Supreme Court of Canada to consider either appeal allowed the Court of Appeal rulings to stand.

British Columbia Nurses' Union vs. Health Employers Assn. of British Columbia (Kootenay Boundary Regional Hospital) (B.C.) (31417)

Kemess Mines Ltd. v. International Union of Operating Engineers, Local 115 (B.C.) (31415)