Labour arbitrators leading in opioid addiction law

Many of the legal remedies of human rights cases on opioid addiction are coming out of labour arbitration rather than human rights tribunals, a lawyer said at an Ontario Bar Association panel.

Lawyer Andrew Zabrovsky, a partner at Hicks Morley Hamilton Stewart Storie LLP in Toronto, said at the May 29 event that, despite a spate of recent cases on opioid addiction accommodation by employers, some aspects of the law remain muddled.

“Arbitrators are all over the map in terms of how they deal with this,” Zabrovsky said. “So long as people have access to these drugs, they are going to continue to have this problem of workplace misconduct and we need this adjudicator to figure it out. Right now, the law is all over the place.”

Workplace accommodation of alcohol addiction has years of legal precedent, but Zabrovsky said employers are becoming more mindful and educated about the obligation to manage and accommodate addiction in the workplace.

While it’s unclear exactly why labour lawyers have led in this area, Zabrovsky said it may be because employees in a unionized workplace have someone there to defend them in a termination meeting and don’t have the same impetus to settle.

He also noted that several cases have focused on a specific area of opioid addiction, where a medical professional steals pills intended for a patient and may alter the documentation of the patient’s treatment.

“It’s one of the front-page emerging issues employers have to deal with,” Zabrovsky said. “Opioid addiction, in particular, is spiking. We only have to watch the news out of the United States to see how serious it is.”

Labour arbitrators have viewed steps such as allowing employees to go away for treatment and implementing last-chance agreements as forms of accommodation, said Zabrovsky. Employers tend to depend heavily on counsel to set parameters for those “last-chance” agreements, he said.

For instance, employers have tended to take the lead in deciding whether they will pay for an employee’s opioid addiction rehabilitation rather than taking direction from the arbitrator, he said. Whether an accommodation is “undue hardship” can also depend on the company, said Zabrovsky, and determining that threshold can be frustrating for clients. Sometimes, it’s a matter of whether a job is particularly affected by an addiction or how willing the employee was to accept accommodation, he said.

“What employers need to do to provide the level of accommodation the code would expect — and a labour arbitrator would expect — is to have flexible policies in place and good, educated human resources staff that can put it into place,” he said.

He gave the example of an employer who paid for an employee to go to addiction treatment seven times, as the employee was able to uphold last-chance agreements for long periods before relapsing. Ultimately, however, the employer still had to terminate the employee, after bending rules and making arrangements with the union.

“Labour arbitrators hate terminating people or upholding terminations. What I explain to clients is, before you terminate someone, you need to put me in the best position possible [to handle the case],” he said.

One area of confusion that remains in the law is the level of evidence needed to show behaviour is compelled by an addiction, he said. Zabrovsky said he disagrees with the direction labour arbitrators have been moving in this area.

“They have swung too far toward the idea — which is discriminatory in and of itself — that people with an addiction don’t have free will,” he said.

“In good cases, you’ll see evidence of compulsion. . . . A doctor will say, this is how addiction took over their life.”