Employers have a duty to thoroughly investigate disability claims

By Tony Poland, LegalMatters Staff • A recent arbitration decision ordering a trucking company to reinstate a worker who was fired following a drunk driving accident is a reminder of the importance of due diligence, says Toronto employment lawyer Jeffrey M. Andrew.

According to CBC News, a driver was arrested with a blood-alcohol level of 0.18 – more than twice the legal limit – following a collision while driving from Quebec to the United States in June 2022.

An arbitrator was told the woman stopped twice on her assigned trip from suburban Montreal to Pennsylvania and each time bought a six-pack of beer. She admitted drinking at least nine beers but was unsure if she drank the other three while on the road.

She was arrested by police following a single-vehicle accident that caused damage to the truck but resulted in no injuries.

Employer told about alcohol problem

About a week after the crash, the driver told her employer about her alcohol problem, one day after she sought medical help to stop drinking. After she completed an in-patient addiction treatment program, she was terminated on Aug. 31, 2022, according to media reports.

However, in a written decision released recently, labour arbitrator Huguette April ruled that while the driver’s actions amounted to serious misconduct, her drinking was the result of a disability — alcoholism — and her employer should have made a reasonable accommodation for her.

“The night of the accident, she needed to drink,” April stated in her ruling. “She admitted that even though she knew she shouldn’t, the need was stronger, like something that she couldn’t control.”

Andrew, a partner with Cavalluzzo LLP, says the decision may seem unreasonable to some but there are human rights considerations at play that must be respected.

“I expect there are many arbitrators that would have struggled with this one,” he says. “While it was stated in the driver’s collective agreement that the penalty for drinking and driving is immediate termination of employment, it is a fundamental premise across Canada that even contractual provisions cannot supplant human rights protections. 

“However, the wrong message to take in this instance is that having a disability is a trump card that immunizes you from discipline,” adds Andrew, who was not involved in the case but comments generally. “This could easily have turned the other way if the employer had done its due diligence.”

Alternatives to termination suggested

He tells LegalMattersCanada.ca that the arbitrator reportedly found there was no evidence the employer asked or verified whether the driver suffered from alcoholism. The woman also argued that instead of terminating her, the company could have installed an alcohol-testing device in her truck following the crash or found other work for her, Andrew adds.

“What wasn’t clear to me is the procedural efforts the employer took to understand the scope of this person’s disability, their recovery and its effect on the accident and whether an accommodation was appropriate and necessary,” he says.

If someone is considered to have a substance abuse problem, it is a medical condition, Andrew explains.

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“That brings you under the umbrella of human rights protections against discrimination on the account of disability,” he says. “Of course, that doesn’t prevent you from losing your job on account of disability. You still have to perform your duties to the required standards. 

“But it does mean that the employer, in certain circumstances, may have to accommodate your disability. In that situation, an employer might be required to take you back with conditions that are appropriate to the situation,” Andrew adds. “However, an employer can have bona fide occupational requirements which could make it difficult or even impossible for you to perform a job. Employers are expected to attempt to accommodate you short of undue hardship before deciding that you are not capable of performing to those standards.”

Issue presents challenges

He acknowledges accommodating an employee who has been charged with impaired driving can be challenging for a trucking company, even if ignition locks are installed on vehicles that prevent alcohol users from driving them.

“In this case, for example, the driver was required to travel to the United States. But after an impaired driving conviction I would assume she would be prohibited from driving in that country,” Andrew says. “We must also consider that every company is entitled to do what they can to ensure safe operation, not just for the protection of their business and their employees, but also for the protection of the public as well.”

The company said the decision to terminate the driver “was not taken lightly” and they will appeal the arbitrator’s decision.

“The safety of all road users is our absolute priority,” a company spokesperson told The Canadian Press. “We have a responsibility to the community to ensure that our employees meet the highest safety standards.”

Andrew says the bottom line is that employers must fulfill their duty to inquire about a disability and provide accommodations when necessary. 

“If the employee can prove there is a disability involved, there is an onus on the employer to demonstrate that they cannot accommodate you,” he says. “If the employer shows no interest in investigating the claim and terminates someone without due diligence, that could lead to repercussions.

“Conversely, if an employee is unable to satisfactorily prove that they have a disability, they will not be entitled to the protections of human rights legislation.”