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Written by: Christin Elawny, BA, LLB

A recent ruling by an adjudicator in Manitoba has been receiving a lot of media attention lately. Although what the decision has to say is not new in the world of human rights, it contains several valuable reminders in terms of what constitutes a disability, what needs to be considered in determining if the accommodation provided was reasonable, and of the powers of a human rights adjudicator/tribunal.

In the decision of Horrocks v. Northern Regional Health Authority1 , the complainant was a health care aide who was ultimately fired for drinking off of the job.  The adjudicator determined that Ms. Horrocks’ alcohol addiction qualified as a disability and that the employer, the Northern Regional Health Authority, had discriminated against her on the basis of that disability.  Further, the adjudicator held that the employer failed to accommodate the special needs of Ms. Horrocks that were associated with her disability.  Ms. Horrocks was entitled to be reinstated, receive three years back pay and an additional award of $10,000 for injury to her dignity, feelings and self-respect.
By way of background, Ms. Horrocks worked as a health care aide at the Northern Lights Manor, which was a personal care home run by the employer in Flin Flon, Manitoba.  She was suspended from duty in June 2011 when one of her co-workers reported that Ms. Horrocks was under the influence of alcohol while at work.
After returning to work, Ms. Horrocks signed a last-chance agreement with the employer (and her union) that allowed her to return to work on several conditions including that she abstain from the consumption of alcohol both in and outside the workplace and that she attend counselling.  Further, the agreement provided that if Ms. Horrocks breached any of the conditions in the agreement within two years of the date of her return to work, such breach would constitute just cause for termination.
At the end of April 2012, the same month during which Ms. Horrocks’ signed the last-chance agreement, Ms. Horrocks and her union representative were called to a meeting where the employer advised Ms. Horrocks that it had received two reports that she had been drinking since signing the agreement.  One report indicated someone had observed her smelling of alcohol in a grocery store and another report was that a manager believed Ms. Horrocks was intoxicated when the manager phoned her at home.  Ms. Horrocks denied that she had been drinking on either occasion.  The employer terminated Ms. Horrocks’ employment the day after the meeting.

At the hearing the employer argued that it had tried to accommodate Ms. Horrocks but that it also had to protect the safety of the clients and staff at its facility.  It argued that the agreement between the parties represented the employer’s reasonable efforts to accommodate Ms. Horrocks and that to return her to employment without the agreement would have exposed its clients and staff to a safety risk that would constitute undue hardship.  In the alternative, the employer also argued that the terms of the agreement, and in particular the abstinence clause, were bona fide occupational requirements.  The adjudicator determined that the employer had not demonstrated that it had accommodated Ms. Horrocks to the point of undue hardship or that the requirements it imposed as pre-conditions to returning Ms. Horrocks to the workplace were bona fide occupational requirements.

The adjudicator took issue with the employer’s claim that it had made all reasonable efforts to accommodate Ms. Horrocks when it had not based its efforts on an individualized assessment which identified what her special needs were.  The adjudicator noted that it was open to the employer to ask for an independent medical assessment and send Ms. Horrocks to another counsellor or physician for an opinion.  Instead, the adjudicator determined that the employer relied on the experiences of its staff with other staff that had required accommodation relating to addiction and on their own personal experiences.  To that end, the adjudicator stated: 

Information of that sort is precisely the type of information that cannot be relied on as the basis for accommodating an employee.  Each individual is entitled to an accommodation which is based on an individualized assessment of his or her specific needs.

The failure of the employer to consider Ms. Horrocks’ specific needs was fatal to its claim that it had made all reasonable efforts to accommodate her. Interestingly, the employer had a psychiatrist testify at the hearing on its behalf in an effort to justify the reasonableness of its actions. However, the adjudicator noted that an employer cannot justify the reasonableness of its actions by pointing to information it did not rely on at the time it carried out its efforts of accommodation.

Why Should this Matter to You?
Although this decision is out of Manitoba, the principles set out in the decision are equally applicable in Alberta.  As an employer in Alberta, there are several valuable reminders and takeaways that come out of this case: 
  1. An addiction constitutes a disability under human rights legislation in Alberta.  
    This means that when dealing with a situation of an employee who attends work under the influence of alcohol or drugs, or who tests positive for alcohol or drugs after an incident, or who starts having performance issues which you suspect may be related to an addiction, you need to remember that an addiction is a disability.  If the employee has an addiction, the common knee-jerk reaction to terminate employment will most likely not be appropriate.  The situation must be assessed to determine if there is an addiction or not.  If so, then the employer must make efforts to accommodate the employee.  If there is no addiction involved the situation will be different as recreational users of alcohol or drugs are not considered to have a disability under human rights legislation.
  2. An employer has an obligation to accommodate an employee with a disability up to the point of undue hardship unless it can prove that there is a bona fide occupational requirement at play.
    The threshold of undue hardship is a very high one, as is the threshold for proving a bona fide occupational requirement.  The employer in the Horrocks decision tried to argue that the pre-conditions it imposed on Ms. Horrocks return to the workplace were bona fide occupational requirements but was unsuccessful.  This was the case even in an environment where Ms. Horrocks would be responsible for the care of elderly patients who often could not care for themselves and who required high levels of attentiveness to the patients’ needs.  The employer did not demonstrate that it took any proactive measures to minimize safety risks associated with returning Ms. Horrocks to the workplace and therefore its safety obligations also did not create a situation of undue hardship.
    The employer likely stretched the requirements too far in including a ban on alcohol consumption outside of the workplace as well as in it.  Had the ban only been on alcohol consumption in the workplace, or showing up to work under the influence of alcohol, and had Ms. Horrocks violated this provision of the agreement, the employer would likely have had a better chance of being successful.
  3. Each individual is entitled to accommodation which is based on an individualized assessment of his or her specific needs.
    The employer in this case did not conduct an individualized assessment of Ms. Horrocks needs, relying instead on the previous experiences of other employees in dealing with their own addictions or the addictions of others.  The employer did not seek the advice of Ms. Horrocks’ addictions counsellor at the first instance and then, when it later did seek her recommendations regarding Ms. Horrocks’ treatment plan, the employer chose not to follow her recommendations. However, the employer also failed to seek its own independent assessment or to seek other relevant information to guide its efforts to accommodate Ms. Horrocks.
    If an employer is looking to accommodate an individual regarding an addiction, it would be wise to seek advice from that employee’s medical professionals, including their addictions counsellor or doctor, with respect to recommendations regarding the treatment plan and possible accommodations that should be made..  If the employer has some reason to think that the information it has received from the employee’s medical professionals is not satisfactory it may want to have an independent assessment completed by a counsellor or physician.
  4. Thorough investigations should be conducted into alleged violations of any agreement regarding a return to work following an incident related to an addiction.
    In this case, Ms. Horrocks was allegedly consuming alcohol on two occasions outside of work.  The only evidence was that of an individual who observed her in the grocery store and of her manager who thought she sounded intoxicated on the phone based on her slurred speech and mannerisms.  While Ms. Horrocks was asked about these incidents and denied them, the employer did not conduct any further investigation into the grocery store incident (i.e. by speaking to anyone else who might have interacted with Ms. Horrocks at the time) nor did the manager get anyone else to listen in on the telephone call to confirm her suspicions.  Although it was not argued in this case that the investigation was flawed, it definitely would seem that the investigation was not thorough.  A poor investigation can lead to a successful human rights complaint or potentially a successful wrongful dismissal claim for an employee.
  5. The Human Rights Tribunal in Alberta has the power to reinstate a complainant to his or her employment.
    Section 32 of the Alberta Human Rights Act (the “Act”) provides the tribunals with broad powers, including the power to “take any action the tribunal considers proper to place the person dealt with contrary to this Act in the position the person would have been in but for the contravention of this Act.”  This includes reinstating the person to their employment in cases where the employee’s termination was discriminatory under the Act.
    This remedy is rarely awarded as many employees do not want to be reinstated.  However, where it does occur it can be quite difficult for the employer, particularly since a lengthy period of time is likely to have passed between termination and the tribunal hearing.  In Ms. Horrocks’ case the period between her termination and the hearing was 3 years.  As well, she was awarded lost wages for the three year period, taking into account the period she would have been on medical leave and any earnings from other employers during that time.
Although this case was not particularly ground-breaking in any way, it serves as a valuable reminder to employers of their obligations when they have an employee who is struggling with an addiction, as well as their obligations in terms of determining appropriate accommodations for employees with disabilities.  Further, it illustrates the significant costs to an employer of a successful human rights complaint by an employee and highlights the fact that a tribunal can award reinstatement in addition to monetary and other remedies.

Christin Elawny is a senior associate in Field Law's Labour and Employment Group.  She assists employers on a wide range of employment matters including wrongful dismissal claims, employment agreements and workplace human rights issues.  She can be reached at