Working from home during a pandemic, in addition to addiction substance abuse, employees are at greater risks to develop habits not readily available in the office.
In Ontario, addiction, substance abuse, and substance dependency are considered disabilities and as such are protected by the Ontario Human Rights Code and the Canadian Human Rights Act.
In the employment context, employers cannot discriminate against employees based on addiction or substance abuse issues and must accommodate them up to the point of undue hardship if accommodations are requested or their accommodation need is apparent. Employers must always balance this accommodation obligation with their duty to ensure a safe and healthy workplace environment as required by Ontario’s Occupational Health and Safety Act.
With many businesses switching to remote work due to the pandemic, an employer’s duty to accommodate may require a different approach.
The Risks of Failing to Accommodate Addiction and Substance Abuse
Discriminating against an employee dealing with addiction or substance abuse issues can cause an employer to become liable for damages at the Human Rights Tribunal of Ontario or the Canadian Human Rights Commission.
If an employee discloses to an employer that they have an addiction or substance abuse issue that can affect work performance, employers must determine whether the employee needs accommodations and implement them accordingly up to the point of a significant and devastating impact on the business’ ability to operate and function – also known as the point of “undue hardship”.
Something employers should be careful of, however, is assuming an employee has an addiction or substance abuse issue when they have not disclosed it to the employer. Doing so can be seen as discriminating against the employee for a presumed disability.
New Difficulties Caused by Work-From-Home
While working from home, it can be far more difficult for an employer to determine whether an employee is suffering from any issues that can negatively affect work performance. As well, employees no longer have the option to meet with an employer in person to discuss accommodation needs and instead must rely on other means, where a discussion can seem more distant and less personal.
Additionally, an employee suffering from a severe addiction or substance abuse problem may not recognize there is an issue and/or find it difficult to disclose same, as working remotely often results in isolation and minimal face-to-face interactions. It can also be more difficult to discipline such an employee on health and safety grounds.
Accommodation options themselves may also be more limited, as certain services may be inconvenient to access or may not be operating under the present circumstances.
Therefore, these new difficulties may aggravate an employee’s disability, and employers may find their ability to properly accommodate an employee limited due to fewer resources being available.
What Employers Can Do
An employer with an employee who has an addiction or substance abuse issue while working from home still has a duty to accommodate.
One option an employer can consider in such a situation is to hold regular private discussions or calls with employees to check up on how they are doing amid the pandemic generally. In such conversations, employers can make it clear that they are willing to assist the employee if there are any issues.
If an employee discloses an addiction or substance abuse issue, employers should treat the situation no differently than he or she would if it took place at the workplace. In such a situation, however, employers should consider the ongoing pandemic (see our article on mental health in the workplace) and ensure they act reasonably.
Employers can also consider providing employees with resources regarding who to call if they need help and assistance.
If you are an employer looking for advice on how best to accommodate an employee, or an employee who may be suffering from an addiction or substance abuse issue who wants to know more about your rights and options, our team of experienced legal professional at Achkar Law can help. Contact us by phone toll-free at 1-(800)771-7882 or email us at firstname.lastname@example.org and we would be happy to assist.
If you are a small or medium size company looking for full-service support, visit our CLO program page for our strategic solutions.
Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email email@example.com.
BOOK A CONSULTATION TODAY