Case Summary and Analysis: Accommodating Addictions Disabilities in the Workplace
A Case Summary and Analysis of Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association, 2019 CanLII 433 (ON LA)
Accommodating addictions disabilities in the workplace has received various, and at times diametrically different, treatment by provincial human rights tribunals which has led to some confusion, both in regards to what is expected from an employee or union in order to establish a prima facie discrimination, and the steps to be taken by the employer in order to discharge their duty to accommodate up to the point of undue hardship.
However, a recent Ontario labour arbitration decision, Regional Municipality of Waterloo (Sunnyside Home) v Ontario Nurses’ Association (Sunnyside Home), has shed some light on the approach adopted in Ontario in cases concerned with addictions disabilities in the workplace. It emphasizes the fundamental principles of discrimination law, as outlined in Stewart v Elk Valley Coal Corp (Elk Valley), and provides guidance on how those principles should apply in cases where employees with disabilities are terminated for misconduct.
Facts of Sunnyside Home
The grievor, DS, was a registered nurse who worked at The Region of Waterloo’s Sunnyside Home Long Term Care Facility since 2002. Prior to the incidents that led to her termination, DS received excellent performance reviews, came to work well groomed, and was polite and respectful to her co-workers.
In 2014, DS acquired an addiction to narcotics and began to improperly misappropriate narcotics for herself from her workplace. In addition, she falsified patient records to cover for the missing narcotics. According to DS, she needed the narcotics to get through each day and that while she wanted to stop, she could not.
Due to her addictions disability, DS’ behaviour and appearance changed – she lost weight, was no longer well groomed, was rude and irritable towards staff, and was occasionally seen taking her break with her head down on a table. Her co-workers noticed these behavioural changes and reported her to the employer; the employer, however, did not ask DS about these behaviours nor inquired as to whether she needed help.
In September 2016, DS admitted to her employer that she was misappropriating narcotics and falsifying patient charts. DS also disclosed that she had an addictions disability and explained that it was the reason for her actions. The employer terminated her on the grounds of theft and gross misconduct.
After her termination, DS successfully completed a treatment program for her addictions disability and continued to be successful in the aftercare program. The last time she used pain medication was in September 2016.
In 2017, the College of Nurses of Ontario (CNO) placed conditions on DS for her eventual return to work. The conditions included that she must follow her doctor’s treatment plan at all times, not have access to narcotics and other medications at work, and be directly observed by another nurse when she is working.
Following treatment, DS attempted to return to work but her former employer refused to reinstate her as it claimed it could not accommodate the CNO conditions without undue hardship. For example, the employer claimed that all nurses were required to have access to narcotics and other medications as part of their duties and that it would be disruptive and detrimental to patient care to have other nursing staff administer the drugs to DS’ patients. The employer further stated that they did not have enough nurses to have another nurse directly observe DS when she was working.
DS’ union filed a grievance on her behalf alleging that the employer discriminated against her when it terminated her and failed to accommodate her disability-related needs to the point of undue hardship. While the employer agreed that the grievor had established the first two parts of the test for prima facie discrimination, it argued that DS had failed to establish that her disability was a factor in her termination.
In particular, the employer argued that the decision to terminate was based on DS’ theft and gross misconduct. In other words, since DS did not disclose her disability until after the decision to terminate had been made, it could not be said that her disability was a factor in her termination. The employer further argued that the same workplace rule would apply equally to any nurse who engaged in the same misconduct, regardless of whether they identified as a person with a disability. Therefore, the employer argued, DS did not experience discrimination as she did not experience different treatment. Essentially, the employer argued that DS’ misconduct and termination could be considered in isolation from the factors that contributed to the misconduct.
In support of its position, the employer referred to a number of related cases where employees’ claims of discrimination where dismissed on the basis that their addictions disability was not a factor in the decision to terminate. In particular, the employer relied heavily on British Columbia v British Columbia Government and Service Employees’ Union (Gooding), as well as Elk Valley, Bellehumeur v Windsor Factory Supply Ltd and Wright College and Association of Registered Nurses of Alberta.
In Gooding, a store manager of a liquor store was terminated for theft. At the time of his termination, he disclosed that he had an alcohol addictions disability which contributed to the theft. In finding that Mr. Gooding’s termination was not discriminatory, the British Columbia Court of Appeal (BCCA) focused on the employer’s decision to terminate, inter alia:
That his conduct may have been influenced by his alcohol dependency is irrelevant if that admitted dependency played no part in the employer’s decision to terminate his employment and he suffered no impact for his misconduct greater than that another employee would have suffered for the same misconduct.(para 15 of Gooding)
The union argued that the employer’s rule had a discriminatory impact against DS because DS’ addictions disability was a factor that contributed to her misappropriation of narcotics. The union argued that the test for discrimination is not concerned with whether a rule applies equally to everyone, but rather whether the application of the rule has an adverse impact on a person because of their disability. The union argued that the grievor had established prima facie discrimination because there was a “nexus” between DS’ disability and the misconduct and, therefore, terminating her on the basis of the misconduct had an adverse impact on her.
Arbitrator Steinberg considered these arguments and the award in Humber River Hospital v Ontario Nurses’ Association (Humber River), which was released as the decision of Sunnyside Home was being prepared. Similar in facts to Sunnyside Home, the arbitrator in Humber River found that the termination of a nurse with an addictions disability for the theft of narcotics was prima facie discriminatory since the nurse’s disability contributed to the misconduct for which she was terminated.
In Humber River, the arbitrator distinguished Gooding finding its decision inconsistent with established human rights principles (para 99 of Humber River). In Sunnyside Home, Arbitrator Steinberg adopted a similar analysis. With respect to the employer’s assertion that the decision to terminate had nothing to do with DS’ disability, Arbitrator Steinberg cited the following passage from Humber River with approval, inter alia:
The court in Gooding here effectively concludes that even though the employee’s addiction may have affected his ability to comply with the workplace rule (i.e. no theft) it is “irrelevant” because the employer’s decision was not based on its attitude towards the employee as an addict, but rather its attitude toward the employee as a thief. This distinction, which goes so far as to deem “irrelevant” the effect of the employee’s disability to comply with the rule by virtue of having a characteristic protected by discrimination, is precisely what the Supreme [sic] of Canada rejects in cases such as Meiron, as reinforced in Elk Valley. To adopt the Gooding approach would be to read adverse effect discrimination out of our human rights analysis and to embrace a superficial understanding of discrimination that the Supreme Court of Canada has rejected.(para 113 of Humber River)
In declining to follow the analysis as set out in Gooding, Arbitrator Steinberg further noted that it was “obvious that the court was influenced by a concept of formal equality to the exclusion of the principles underlying indirect discrimination.” (para 157 of Sunnyside Home).
Ultimately, Arbitrator Steinberg agreed with the union and found that the employer’s decision to terminate DS had a discriminatory impact, even though the same workplace rule applied equally to all nurses. He found that DS’ actions could not be looked at in isolation of her addictions disability, which impacted her ability to comply with the workplace rule.
On the issue of accommodation, Arbitrator Steinberg found that the employer failed to accommodate DS to the point of undue hardship for two reasons:
- Despite being alerted to observed changes in DS, the employer failed to inquire as to whether DS required accommodations; and,
- The employer failed to consider how the workplace could be changed to accommodate DS. For example, the employer did not have any evidence to demonstrate that it considered alternate staffing arrangements to allow for another nurse be present to observe DS while on shift.
In sum, Arbitrator Steinberg agreed with DS and found that the employer discriminated against her on the basis of disability when it terminated her, because there was a nexus or connection between the misconduct and DS’ disability. He found that the employer did not satisfy its onus of demonstrating that it could not accommodate DS to the point of undue hardship. Arbitrator Steinberg awarded DS reinstatement with accommodations for her disability-related needs.
Sunnyside Home can be seen as a positive development in the law for persons with addictions disabilities as it suggests that there is a preferred approach in Ontario for analyzing whether a valid workplace rule had a discriminatory impact on a person where the person’s disability may have contributed to their violation of a workplace rule. While not binding on future arbitrators or other courts or tribunals, Sunnyside Homes presents a thorough and reasoned critique of decisions such as Gooding, which has been characterized as a superficial or “formal” application of the law of discrimination. Gooding, and cases which follow its reasoning, are especially disconcerting in how swiftly the BCCA is able to sever any relation between the disability and the misconduct that led to the termination. If the termination was based on the misconduct, but the misconduct was a part of the disability, then by extension how can the disability not be a factor in the termination?
Sunnyside Home also confirms that the duty to accommodate includes the duty to inquire where an employer is notified of notable changes in the employee’s workplace conduct. It confirms that the duty to accommodate requires employers to meaningfully turn their minds to and to think creatively about how they might make changes in a workplace to appropriately accommodate an employee’s disability-related needs.
**A version of this article first appeared in the March 2019 ARCH Alert issue