A labour arbitration decision out of Nova Scotia has got us thinking about what will qualify as addiction and justify accommodation in the work setting. In Unifor, Local 2215 v IMP Group Ltd (Aerospace Division) (AB Grievance),  NSLAA No 4, Arbitrator Richardson determined that an employee’s on the job masturbation was not justified by his reported sex addiction and upheld the employer’s decision to terminate.
The employee in question carried out his offending behaviour in a four-stall bathroom, and though he was courteous to the extent that he did not engage in the behaviour if someone was in the stall directly beside him, he was commonly overheard by his co-workers.
The employer’s anti-harassment policy prohibited offensive, embarrassing or humiliating behaviour and the employer had spoken to the employee about his bathroom activities two years prior to terminating his employment.
The union argued, on behalf of the employee, that his behaviour was a result of his sex addiction (a disability) and therefore he should not be subject to discipline for his disability-related behaviour. The employee stated that his addiction did not impact or interfere with his work and the employer agreed that there was no issue with the employee’s work.
It was notable in this case that sex addiction is not a condition recognized by the Diagnostic and Statistical Manual (“DSM”). The employee also did not present any evidence that his behaviour was uncontrollable or that it was interfering with his work or home life – the way that we might expect an addiction would. The sex addiction, if the employee truly did have one, was not “disabling.”
While there is currently no reported case law on accommodating “phone addiction” in the workplace, we think it’s coming. Phone addiction, a fun chronicle of which was reported by the New York Times this February, is also not in the DSM but probably feels pretty real to most of us!
We foresee a time when an employee, prohibited from gazing at their personal device all day, claims phone addiction and brings in a doctor’s note. Maybe it’s already happening!
What’s an employer to do? Accommodate up to the point of undue hardship – this standard will most likely apply even if the addiction seems slightly off the beaten path.
General Tips for Accommodating Addictions
Employers need to accommodate their employees with disabilities up to the point of undue hardship. The frequent bathroom visitor’s case failed, in part, because he could not establish that his sex addiction was a disability. Had he been able to do so, he might have gotten his job back.
Once an employer is wise to a disability or addiction issue they need to take proactive steps to help rehabilitate the employee. This could include paying for counselling or time off for rehab. And yes, you can definitely go to rehab for phone addiction!
The threshold of undue hardship does not mean that an employer can fulfil their duty to accommodate without hardship. There will be a hardship! Larger employers will be expected to tolerate more of that hardship than smaller employers.
The Ontario Human Rights Tribunal provides plenty for free guidance on the employer’s duty to accommodate addictions – check it out here.
Dealing with an addiction or disability issue in the workplace is very tricky. Surprise surprise, we suggest you get legal advice. If you need some guidance in this area, our team would be happy to help.