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7. Consequences of a positive test

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7.1. Duty to accommodate

Although the emphasis in the Code is on making sure that people with disabilities are not treated in a discriminatory way, in some circumstances, the nature and/or degree of a person's disability may prevent them from performing the essential duties of a job. Under section 17(1) of the Code, it is not discriminatory to refuse a job or treat someone differently at work because they are incapable of performing or fulfilling the essential duties of the position because of a disability. However, people cannot be presumed to be unable to fulfill the essential duties or requirements of a job based on disability. Instead, there must be objective evaluation of this fact. Assessment of incapacity must be both fair and accurate.

Section 17(2) says that an employee shall not be found incapable of performing the essential duties of a job unless it would cause undue hardship to accommodate the individual employee's needs, taking into account the cost of the accommodation and health and safety concerns.[63]

After a person tests positive on a drug or alcohol test, they should be advised of the availability of accommodation. Employees are entitled to an individualized assessment conducted by someone with expertise in substance use disorders to inquire into possible disability and assess any support needed. Accommodation must be offered unless it causes undue hardship, and any addiction disability will be a mitigating factor in considering if discipline is appropriate.[64] The Code requires individualized or personalized accommodation measures. Therefore, policies that result in the automatic loss of a job, reassignment or inflexible reinstatement conditions, without regard for a person’s individual circumstances, are unlikely to meet this requirement.

7.1.1. Responsibilities of the employee and employer

The accommodation process is a shared responsibility. Everyone involved should co-operatively engage in the process, share information and consider potential accommodation solutions.

The person with a disability is required to:

  • Advise the accommodation provider of the disability (although the accommodation provider does not generally have the right to know what the disability is)
  • Make accommodation needs known to the best of their ability, preferably in writing, so that the person responsible for accommodation can make the requested accommodation
  • Answer questions or provide information about relevant restrictions or limitations, including information from health care professionals, where appropriate and as needed.[65] However, accommodation seekers are not required to discuss their disability or their accommodation needs with anyone other than those individuals directly involved in the accommodation process.[66]
  • Take part in discussions about possible accommodation solutions
  • Co-operate with any experts whose help is needed to manage the accommodation process or when information is needed that is unavailable to the person with a disability
  • Meet agreed-upon performance standards and requirements, such as job standards, once accommodation is provided
  • Work with the accommodation provider on an ongoing basis to manage the accommodation process.

The accommodation provider is required to:

  • Be alert to the possibility that a person may need an accommodation even if they have not made a specific or formal request
  • Accept the person’s request for accommodation in good faith, unless there are legitimate reasons for acting otherwise
  • Get expert opinions or advice where needed (but not as a routine matter)
  • Take an active role in ensuring that alternative approaches and possible accommodation solutions are investigated,[67] and canvass various forms of possible accommodation and alternative solutions[68]
  • Keep a record of the accommodation request and action taken
  • Communicate regularly and effectively with the person, providing updates on
    the status of the accommodation and planned next steps[69]
  • Maintain confidentiality
  • Limit requests for information to those reasonably related to the nature of the limitation or restriction, to be able to respond to the accommodation request
  • Implement accommodations in a timely way,[70] to the point of undue hardship
  • Bear the cost of any required medical information or documentation (for example, the accommodation provider should pay for doctors’ notes, assessments, letters setting out accommodation needs, etc.)
  • Bear the cost of the required accommodation.

Generally, people are expected to make their accommodation needs known to their employers. However, due to the nature of drug and alcohol addictions, people may not realize or be able to admit that they have a disability, or recognize the impact of their addiction on their job.[71] Employers have a duty to inquire if a person has addiction-related needs where someone is clearly unwell or perceived to have needs related to an addiction.[72] An employer should offer assistance and accommodation before imposing discipline and other consequences.[73] When someone tests positive on a drug or alcohol test, this will trigger the “duty to inquire.” This should be done respectfully, and in a way that protects the employee’s confidentiality.

Unions and professional associations are required to take an active role as partners in the accommodation process, share joint responsibility with the employer to facilitate accommodation, and support accommodation measures regardless of collective agreements, unless to do so would create undue hardship.[74]

If an employee's drug or alcohol addiction is interfering with their ability to perform the essential duties of their job, the employer must first provide the support necessary to enable that person to undertake a rehabilitation program unless it can be shown that such accommodation would cause undue hardship.

Generally, if an accommodation is required to allow the person to be able to take part in the organization without impediment due to disability, the organization must arrange and cover the cost of the accommodation needed,[75] unless this would cause undue hardship. However, human rights case law has not yet determined whether this would include the cost of treatment such as therapy, medication, etc.  

In circumstances where people are not able to recognize that they have an addiction, policies that discipline people for not coming forward and disclosing a drug or alcohol addiction may be found to be discriminatory.[76]

Even if a person with an addiction or perceived addiction refuses accommodation, this does not justify immediate dismissal. The employer has to show, through progressive discipline, that the employee has been warned and is unable to perform the essential duties of the position. If the employee refuses offered accommodation and if progressive discipline and performance management have been implemented, dismissal may occur.

This approach applies to workplaces where testing takes place, and those where testing does not take place.

Example: An employee in a clerical position appears to be inebriated often during work hours, and the employer has a conversation to address the problem. The employee refuses to acknowledge the problem or seek counselling at the employer's expense. Shortly after, the employee is fired without formal warning. This may be a violation of the employee’s rights under the Code.

See section 13.6.1 of the Policy on preventing discrimination based on mental health disabilities and addictions for more details.

Refusing to take a drug or alcohol test should not automatically lead to the conclusion that the employee would test positive. A refusal should not lead to consequences that treat the person as if they have an addiction (e.g. being suspended from his or her position and not being allowed to return to work unless he or she attends counselling for substance use). Instead, the circumstances should be examined on a case-by-case basis, considering the reasons for refusing the test and other relevant factors, such as the employee’s service record. Otherwise, such actions may amount to discrimination based on perceived disability.[77]

7.1.2. Undue hardship

The employer will be relieved of the duty to accommodate the needs of the employee with an alcohol or drug addiction if it can show that the accommodation would cause undue hardship, that is, that:

  1. 1The cost of the accommodation is so high that it would alter the nature or affect the viability of the enterprise. This analysis must take into account outside sources of funding and other attempts to offset costs 
  2. The health or safety risks to workers, members of the public or the environment are so serious that they outweigh the benefits of the requested accommodation. This analysis must take place after accommodations and precautions to reduce any risks have been made.

The employer is responsible for proving that an accommodation would cause undue hardship, using evidence that is direct, real and objective and in the case of costs, quantifiable. A mere claim without supporting evidence that the risk or cost is “too high” based on impressionistic views or stereotypes will not be enough.

The test for undue hardship is set out fully in the OHRC’s Policy on preventing discrimination based on mental health disabilities and addictions.

7.2. Recreational users of alcohol or drugs

Using substances does not necessarily mean someone has an addiction (substance use disorder). Because of the nature of addictions, some people who claim to be recreational users may have an addiction.[78] The Code protects these individuals based on disability. Otherwise, the Code only protects people who are casual or recreational users of substances if they are perceived to have an addiction.[79]

If an employer believes a casual user has an addiction or a drug and alcohol testing policy treats a casual user as if they have an addiction, human rights concerns may arise based on “perceived disability.”[80]

Example: During a site visit, a manager in a safety-sensitive work environment notices that one of her employees appears to be under the influence of alcohol when he returns from lunch. The company has a drug and alcohol testing policy in place. Before he goes back to his job, the employee has to take an alcohol test. The result is positive, and the employee admits to being a social drinker. In response, the employer automatically fires him. He is also barred from working at the company in the future unless he provides medical documentation that he is fit to work. This documentation is not expected of other job applicants. These actions may raise human rights concerns based on “perceived disability.”

Employers should be aware of their duty to inquire into the possibility that a disability may exist, but should not act based on stereotypes. They should also design policies in a way that does not conflate substance use with substance addiction.

Following a positive alcohol or drug test, an employee may be individually assessed and found to be a casual user, as opposed to a person with an addiction. As a preferred approach in these situations, employers should consider tailoring any sanctions to the circumstances.

[63] See section 7.1.2. on undue hardship.

[64] See Krieger v Toronto Police Services Board, 2010 HRTO 1361 (CanLII) [“Krieger”] at para 157; Kemess Mines Ltd v International Union of Operating Engineers, Local 115, 2006 BCCA 58 (CanLII) (leave to appeal to SCC denied) [“Kemess Mines Ltd”]; Bowden v Yellow Cab and others (No 2), 2011 BCHRT 14 (CanLII). In cases of misconduct, a person with a psychosocial disability would have to show a causal relationship between the misconduct and a psychosocial disability to engage the Code’s protection. See Fleming v North Bay (City), 2010 HRTO 355 (CanLII); Walton Enterprises v Lombardi, 2013 ONSC 4218 (CanLII); McLean v Riverside Health Care Facilities Inc, 2014 HRTO 1621 (CanLII)
at para 27.  

[65] In Baber v York Region Dist. School Board (No 3) (2011), 2011 HRTO 213 (CanLII), the HRTO found that even if the duty to accommodate was triggered, the employer had fulfilled its duty to accommodate because the claimant failed to co-operate in the accommodation process by refusing reasonable requests for information that would confirm her needs. She consistently refused to provide the necessary medical information. The HRTO found that the employer did not breach its duty to accommodate her when it terminated her employment.

[66] In Ravi DeSouza v 1469328 Ontario Inc, 2008 HRTO 23 (CanLII), the HRTO found that a tennis
club discriminated against a tennis instructor based on disability when it imposed requirements on the instructor that he tell all private clients about his epilepsy and instruct all staff how to deal with a seizure.

[67] Meiorin, supra note 25 at paras 65-66.

[68] Lane v ADGA Group Consultants Inc, 2007 HRTO 34 (CanLII) [“Lane”]; ADGA Group Consultants Inc v Lane, 2008 CanLII 39605 (Ont Div Ct) [“ADGA”]; Krieger, supra note 64; MacLeod v Lambton (County), 2014 HRTO 1330 (CanLII). 

[69] Hodkin v SCM Supply Chain Management Inc, 2013 HRTO 923 (CanLII).

[70] In Turnbull v Famous Players Inc, 2001 CanLII 26228 (ON HRT), the HRTO upheld a discrimination complaint finding that although Famous Players had taken steps to comply with the Code by providing equal access to its movie theatres for people with disabilities, it had not done so quickly enough, and had failed to act with “due diligence and dispatch” (para. 216).

[71] See Kemess Mines Ltd, supra note 64; Primary Care Addiction Toolkit: Fundamentals of Addiction, 2010, What is addiction? Online: CAMH and St. Joseph's Health Centre. (retrieved June 24, 2015). People with addictions may also be reluctant to disclose their disability due to the considerable stigma that surrounds addictions. See Centre for Addiction and Mental Health, The Stigma of Substance Abuse: A Review of the Literature (18 August 1999), online: CAMH
 (retrieved January 22, 2016) at 6-7.

[72] Wall, supra note 60 at para 80; Krieger, supra note 64.

[73] See Lane, supra note 68; ADGA, supra note 68; Kriegersupra note 68; Wall, supra note 60; Mellon
v Human Resources Development Canada
, 2006 CHRT 3 (CanLII) at paras 97-98; Willems-Wilson v Allbright Drycleaners Ltd [1997] BCHRTD No 26 (QL).

[74] The Supreme Court of Canada’s decision in Central Okanagan School Dist. No 23 v Renaud, [“Renaud”], [1992] 2 SCR 970 sets out the obligations of unions. See also Bubb-Clarke v Toronto Transit Commission, 2002 CanLII 46503 (HRTO). 

[75] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624. 

[76] But see Stewart v. Elk Valley Coal Corporation, 2015 ABCA 225 (CanLII), in which a majority of the Alberta Court of Appeal found that the dismissal of an employee with an addiction who did not self-disclose did not amount to discrimination. The majority found that based on the evidence, the employee did not have sufficient loss of control and could have complied with the self-disclosure requirements. Leave to appeal has been granted by the Supreme Court of Canada.

[77] Sterling Crane, supra note 42.

[78] See CAMH and St. Joseph's Health Centre, supra note 71.

[79] Entrop, supra note 9, at para 92. Note that in several cases, decision-makers have dismissed the discrimination claims of people who experienced sanctions (such as termination or failure to hire) after failing a drug or alcohol test, because they could not show they had a disability or perceived disability. See for example, Chornyj, supra note 36. 

[80] Chornyjsupra note 36. At para 29, the Ontario Divisional Court stated:

The decisions in Entrop and Kellogg do not stand for the proposition that the mere existence of a drug testing policy is prima facie discriminatory on the ground of perceived disability. The effect of the drug testing policy must be examined in each particular case to determine if a claim of perceived disability is supportable.

Severe or harsh consequences, such as automatic dismissal, may be seen as evidence that the employer’s policy treats the employee as if they have a disability. In Entropsupra note 9, the Ontario Court of Appeal examined Imperial Oil’s drug and alcohol testing policy, which characterized substance abuse as often beginning with experimental use. It found that Imperial Oil applied sanctions to any person testing positive, on the assumption that the person is likely to be impaired at work currently or in the future, and therefore not “fit for duty.” On this basis it concluded that the pre-employment and random testing provisions of the policy were prima facie discriminatory against perceived or actual substance abusers (at paras. 90-92). See also Greater Toronto Airports Authority v Public Service Alliance of Canada, Local 0004 [2007] CLAD No 243 (QL) at para 297. 

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