FEATURE - BUSINESS OF HEALTH: HOW TO HANDLE ADDICTION IN THE WORKPLACE

Spotting symptoms may be easy; solution not as simple as firing the
addicted employee

It's sometimes easy to spot employees with substance abuse or other
addictions, but the challenge of what to do next can often stump employers.
The solution is not as easy as saying, "You're fired."

Human rights law prohibits employment discrimination based on disability,
and the law has firmly established that drug addiction is a disability,
said Earl Phillips, McCarthy Tetrault's Vancouver-based national practice
group leader for labour and employment law.

That means that employers must accommodate their addicted employees up to
the point where the employer suffers undue hardship, he said. And employers
can't punish employees for actions that are directly caused by their addiction.

The Castlegar and District Hospital learned this lesson in 1997 after it
terminated a narcotic-analgesic-addicted nurse for under-dosing patients,
stealing wastage and falsifying records to obtain drugs.

An arbitrator reinstated the nurse in his job because all his actions were
directly linked to his addiction.

After that reinstatement, the nurse eventually relapsed and started
stealing narcotics again. And again in 2000, an arbitrator overturned the
nurse's termination, Phillips said.

Phillips called that an "extreme" case against the employer's right to fire
an employee. But it could still influence a judge if a court were to hear a
wrongful dismissal case, he said.

Despite that case, the RCMP's co-ordinator for the member-assistance
program in B.C., Garry Sexsmith, said an officer who voluntarily discloses
that he or she has an addiction to an illegal substance would be quickly
terminated.

The RCMP's message to a drug-addicted officer would be, "Kiss your ass
goodbye. You're gone," said Sexsmith.

Phillips admits that using illicit drugs is more serious for a cop than for
a private-sector manager. However, the officer would still enjoy legal
protection from discrimination based on the disability of an addiction, he
added.

"If the RCMP officer was a casual user of cocaine and not addicted, he's in
trouble. But if he's addicted, you'd probably have to treat the disease and
not the fact that he's committing an illegal act," Phillips said.

He added that companies are given leeway to discipline severely if their
reputation is at stake. For example, in 1991 ICBC was able to fire an
employee for repeated drunk-driving convictions because one of the
insurance corporation's main goals is to discourage drunk driving. But that
discipline would not have been possible if the employee could have shown
that he was an alcoholic and not merely someone who drove while impaired.

Another blow for employers came from the Ontario court of appeal in 2000
when it ruled in Entrop versus Imperial Oil that drug testing can determine
past use but not present impairment. The tests can therefore not justify
punishment for present impairment.

The case also held that pre-hiring and random drug-testing is illegal.

But employers can randomly test employees for current alcohol impairment if
the employees are in safety-sensitive positions and the employer has
established a reasonable impairment standard, such as the .04 per cent
blood alcohol level that Imperial Oil used.

These precedents have prompted many employers to be more progressive in
encouraging employees with problem addictions to come forward voluntarily.

Coquitlam-based Gary Pfeifer, who is a referral agent for CP Rail's family
assistance program, said he has referred 25 of 1,500 CP Rail workers based
between Kamloops and Vancouver Island to addiction centres in the past year.

Twenty-one of those referrals were for employees who sought help
voluntarily. "By the time they come to us, they've hit their bottom, missed
a lot of time at work, are financially in trouble and have problems at
home," Pfeifer said.

Sexsmith said RCMP officers who voluntarily admit alcoholism or addiction
to legal pain killers after an injury are routinely referred to Nanaimo's
Edgewood residential treatment centre because of its high success rate.

Five of B.C.'s approximately 7,000 officers have been referred to Edgewood
in the past year, Sexsmith said.