Employment and human rights law routinely deal with issues of discrimination based on characteristics like gender, ethnic origin, sexual orientation, or disabilities. However, many people may not be aware that our laws also recognize that an addiction to substances like alcohol or narcotics may also constitute a disability. An employer may be held liable under human rights law for failure to accommodate by not getting an addicted employee into a counselling/recovery program.

This was addressed in a recent decision of an Alberta Human Rights Tribunal (the Tribunal) available at Gregg v CanWest Building Materials Ltd.,  2022 AHRC 28 https://canlii.ca/t/jmqqt.  James Gregg made a complaint to the Alberta Human Rights Commission against his employer, CanWest Building Materials, after he was fired subsequent to disclosing to his supervisor that he had a drinking problem. Section 7 of the Alberta Human Rights Act lists several grounds of prohibited areas of discrimination, two of them being mental and physical disability.

The parties agreed that Mr. Gregg had performed his work as a warehouse forklift driver well, with no alcohol-related incidents while on the job. Evidence led by both parties at the Tribunal hearing established that Mr. Gregg had notified his supervisor that he was an alcoholic shortly before he was terminated. Although the employer had suspected that several absences were linked to Mr. Gregg’s alcohol consumption, no further inquiries were made to confirm this. The employer’s knowledge and affirmative belief of Mr. Gregg’s disability invited a legal duty to inquire and assess whether this was a disability that might be accommodated. However, the employer failed to follow-up in this matter, so discrimination was established.

CanWest denied any basis for Mr. Gregg’s complaint and said it was justified in firing Mr. Gregg because of a history of absenteeism. These absences typically occurred on weekends close to pay days. The company argued that Mr. Gregg’s various absences and failure to call in to inform his supervisor that he was going to be absent contravened the company’s attendance policy, a policy of which he and all employees were aware. No medical documentation of the alcoholism was provided, and no other reasonable excuse was provided for Mr. Gregg’s absences. CanWest argued that it ended Mr. Gregg’s employment because of his failure to adhere to the company attendance policy and that an allegation of alcoholism as a disability had nothing to do with the matter. Furthermore, even if there were such a disability, that should not have hindered Mr. Gregg from complying with the attendance policy. Finally, Mr. Gregg neither participated in nor even tried to access the company Employee Assistance Program (EAP).

At the Tribunal hearing, the witnesses (both Mr. Gregg and his supervisor) testified that Mr. Gregg had disclosed his alcoholism to the supervisor roughly six weeks before he was terminated. There was some ambiguity as to whether Mr. Gregg actually admitted to being an alcoholic; there was at least an admission by Mr. Gregg that he had missed work on several occasions because he had been drinking with a friend. There was contradictory evidence as to whether Mr. Gregg had been fully informed about the company EAP, let alone consented to participate. His supervisor testified that he thought he had tried to give an EAP brochure to Mr. Gregg, but, in any event, he was certain Mr. Gregg had spoken about attending Alcoholics Anonymous meetings. The supervisor also testified his manager was aware of Mr. Gregg’s disclosure. Finally, the supervisor testified that he had verbally reprimanded Mr. Gregg about his absences and failure to call into work.

A huge evidentiary issue in this case was the employer’s lack of any corroborating documentary record, which the Tribunal pointed to as raising serious doubt regarding the employer’s reliability and credibility. So, that being said, the Tribunal apparently had to impute knowledge of Mr. Gregg’s alcoholism to CanWest, with the implications that necessarily flow from that, including the duties to make further inquiry into Mr. Gregg;\’s condition and to accommodate his disability by getting him into an EAP rather than, it should go without saying, terminating employment.   

The Tribunal’s framework for analysis of Mr. Gregg’s human rights complaint involved looking at Supreme Court of Canada decisions in other, similar cases. The benchmark case is that of Moore v British Columbia (Education), 2012 SCC 61, which provides a three-part test for determining whether an apparent case for discrimination under human rights law has been established. The three parts or questions to be asked are:

1. Did the complainant establish on a balance of probabilities that he had a mental or physical disability?
2. Did the complainant establish on a balance of probabilities that he experienced an adverse impact?
3. Did the complainant establish on a balance of probabilities that his disability was a factor in the adverse impact?

As has been pointed out, the company had no documentary record regarding performance warnings, knowledge of Mr. Gregg’s alcohol problem, or discussion regarding the company EAP. As it is the Tribunal’s job to weigh whatever evidence there is before it, in the absence of a documentary record, the Tribunal had to look at the admission by the supervisor that he knew about Mr. Gregg’s alcoholism. This was deemed to be corroboration of Mr. Gregg’s own testimony that he had informed his supervisor of his drinking problem. Since addiction has been recognized as a form of mental and physical disability, the first part of the test was met. Furthermore, when Mr. Gregg’s alcoholism began to manifest as increasing absences from work to the point that the company was considering termination of employment, a duty arose for the company to make formal inquiries that may have helped in the accommodation process of getting Mr. Gregg into the company EAP.

Both parties agreed that the termination of employment constituted an adverse impact, so the second part of the test set out in the Moore decision was established.

Finally, in looking at whether Mr. Gregg had shown that his disability had been a factor in the adverse impact, the Tribunal held that because the supervisor admitted to knowledge of Mr. Gregg’s drinking problem through conversations with him, the duty to make further inquiries arose. The company had a related duty to accommodate Mr. Gregg by getting him into counselling and treatment for his alcohol addiction, rather than ending his employment for the putative reason that he had violated the company’s attendance policy without providing satisfactory reasons.

The human rights Complaint of discrimination in employment practices having been established, the Tribunal awarded $25,000 in general damages plus four months of lost wages, all of which was subject to judgment interest.