Alcohol, substance abuse should be seen from ‘place of empathy’

By Tony Poland, LegalMatters Staff • Employee alcohol and substance abuse may be a disability that needs to be treated and not merely seen as a reason for punishment, says disability lawyer Leanne Goldstein.

Goldstein, founder and senior lawyer at Leanne Goldstein Law Professional Corporation, says many people do not think of consulting a disability lawyer when their employment is threatened or they are fired due to workplace absenteeism, poor performance or interpersonal challenges that can result from alcohol or drug dependency.

“Alcohol and drug dependency should be looked at from a place of empathy rather than a level of judgment.”

Pandemic had significant impact on drug and alcohol use

“In the employment realm, the focus is often on an employee’s poor performance. But sometimes at the root of the poor performance issue is alcohol or substance abuse,” she tells LegalMattersCanada.ca.  “And, unfortunately, it is not uncommon that when employers actually find out that people are abusing alcohol or drugs, they use it as a way to create a punitive scenario when it really should be considered in the context of whether it might be an illness or a disability. Considered in this context, there is an obligation on the employer to accommodate the employee where appropriate and not to discriminate against them or terminate their employment on the basis of disability.  

She says the pandemic has had a significant impact on alcohol and drug use and many more individuals are struggling with dependency and addiction.

“Although alcohol is a mechanism that people utilize to cope with stressors,” says Goldstein, “alcohol can also be a depressant.  It’s a self-perpetuating issue.”

Indeed, the Canadian Centre on Substance Abuse and Addiction (CCSA) reported a rise in alcohol use during the pandemic.

“The Canadian drinking culture is one where alcohol use serves as a boundary between weekday and weekend, work and leisure; it marks a ‘time out,” says Dr. Catherine Paradis, senior research and policy analyst at CCSA. “With COVID-19, these boundaries have become blurred. Disrupted routine may be accompanied by loneliness and anxiety about the current situation. With the possibility that people are stocking up and there is more alcohol in the home than usual, some might drink more than they typically do.”

Goldstein says the problem with alcohol and drug dependency is that there is an assumption that those struggling with addiction and dependency are choosing not to exercise self-control and that they should be able to stop whenever they want. She explains that the causes of alcohol and substance abuse are extremely complex and often related to brain physiology. 

‘You might be more judgmental’

“If you feel someone can control something and they are not, then you might be more judgmental. If you perceive that they may be suffering from an illness or a disability, you will naturally have more compassion toward them,” Goldstein says.

The National Institute on Drug Abuse calls addiction “a chronic disease characterized by compulsive, or uncontrollable, drug seeking and use despite harmful consequences and changes in the brain, which can be long-lasting.” 

It is a disease that affects the brain and behaviour and is prone to relapses. 

The Institute states addiction is a “complex but treatable disease” with no one-size-fits-all treatment.

Goldstein says her firm represents many clients who are struggling with substance abuse and alcoholism and are fighting insurance companies that have denied or terminated their disability claims.

In the workplace,  substance abuse can manifest in different ways: withdrawal symptoms affecting job performance, inability to focus and concentrate, fatigue and memory issues, repeatedly making mistakes, inappropriate risk-taking, impaired interpersonal interactions and absenteeism, she notes.

Applying for benefits allows worker to preserve job

Applying for long-term disability benefits may, in certain circumstances, allow clients to preserve their jobs while they pursue treatment, Goldstein says, but some employees are reluctant to step forward.

“One of the things people have the most difficult time with is making a disability claim. Often, they don’t want to disclose to their employer that they’re dealing with these issues in case they are labelled and stigmatized,” she says. “However, the opposite should be happening. People should be more willing to acknowledge that they have these issues because there is an obligation on the employer under the Ontario Human Rights Code to accommodate a disability. 

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“If you have an alcohol or substance abuse disorder and you are not functioning appropriately in the workplace, you should consider applying for disability benefits. It should be something that can be considered debilitating because it is an illness over which you may not have control and for which you require medical and psychological assistance.”

Goldstein says she sees two types of claims. One that is a pure substance abuse disorder claim and the claims that involve concurrent disorders, meaning someone is dealing with an addiction and mental health disorder at the same time.  

She says “There’s a level of complexity when it comes to substance abuse disorders” and it is often insufficient to treat the substance abuse issues in isolation.

May not be aware of concurrent disorders

“Even in the case where it appears to be purely substance use or abuse, we always recommend that the client seeks some type of psychological or psychiatric evaluation because they may not be aware of the fact that they have concurrent disorders,” Goldstein explains. “Sometimes people who suffer from trauma might have buried it to the extent that they don’t realize that they are not addressing it. Alcoholism may be masking the underlying trauma or mental illness.

Simply placing someone in inpatient care and cutting off their supply of drugs or alcohol will not necessarily ensure they will stay sober once they are released, she says, adding that her firm has dealt with disability claims that have been terminated on the basis that the individual is no longer in an inpatient treatment facility or withdrawal program.

“Many times, insurers approach substance abuse cases with a medicalized perspective. You go through detox. Once you are clean, your insurance company basically clears you to go back to work,” says Goldstein. “The problem with that model is that you are not addressing the root cause of the issue. If you only address the substance abuse issue, but you don’t implement a support system, that person is more likely to relapse.

“There is a tenuous interrelationship between working toward restoring functionality and preserving strides made in recovery.”

She explains that many of the cases they see involve insurers refusing to pay a claim if the employee is not in or is no longer in an inpatient program. The insurer may be relying on specific wording in a particular insurance policy. 

“In appropriate cases, we can make the argument that even if they are not in an inpatient program, they are undergoing different types of treatment that could be similar and just as effective or sometimes even more effective,” says Goldstein. “Benefits should not be terminated just because the employee is not in an inpatient program.”

‘Important to have support systems in place’ 

She says she favours a “holistic approach” offered in treatment centres such as EHN Canada.

“It is important to have support systems in place,” says Goldstein. “That way once they leave inpatient care and they are back in the community, they have help to deal with their day-to-day lives, maintain sobriety and address ongoing concurrent issues. Programs such as EHN Canada offer multiple treatment modalities and support programs which do just that. 

“Disability insurance companies need to take into consideration that these after-care programs are just as, or if not more, important than the inpatient program,” she adds. “There must be some effort to consider the individual and to determine all programs that would be beneficial for them as this will prevent insurers from prematurely terminating disability benefits before claimants have the tools and resilience they require to successfully return to the workplace.”

Goldstein says she is encouraged by employers who are educating themselves on drug and alcohol dependence and attempting to destigmatize the issue.

“But I still believe there’s a lot of misinformation and a lack of understanding of what is truly going on behind the scenes,” she says. “Enabling people to understand that addiction and substance abuse is a medical illness and can be disabling can change people’s perspectives and encourage empathy.”