Alcoholism and drug addiction have been recognized as diseases
pursuant to the definition of a "handicap" established
within the Quebec Charter of Human Rights and Freedoms.
Therefore, an employee suffering from limitations related to his or
her addiction is afforded protection against discrimination
guaranteed by the Quebec Charter in Article 10.
What does it mean to accommodate an employee with a handicap in
the workplace? The Supreme Court of Canada answered this question
in 2008 in the Hydro-Québec case. It stated
that the duty to accommodate ends where the employee is no longer
able to fulfill the basic obligations associated with the
employment relationship for the foreseeable future. A certain
flexibility must be considered if the employer believes the
employee will be able to engage in productive work without causing
undue hardship. The main purpose of accommodation is to ensure that
an employee who has the capacity and abilities to work is not
penalized for his handicap.
Under these circumstances, the main difficulty for an employer
is essentially to know how far its duty extends in order to
accommodate an employee suffering from alcoholism or drug
addiction, and what can constitute an undue hardship which would
justify the refusal to accommodate that employee. Case law has
given some examples of what could be considered undue hardship for
The inability to make changes with respect to staffing;
The substantial impact on the morale of other employees;
The significant impact on the rules in the collective
The accommodation would involve substantial changes to the
usual rules of operation;
The accommodation would involve excessive and unreasonable
Although the concept of undue hardship can seem very demanding
for an employer in the normal course of business, the accommodation
process has to be bilateral. The cooperation of the employee, in
controlling his addiction, and of the union, in the case of an
unionised employee, is a key element in establishing whether the
employer has a duty to continue to accommodate. As a result, all
parties have to participate actively in the accommodation
In sum, the accommodation process between an employer and an
employee suffering from alcoholism or drug addiction needs to be
analyzed based on all the relevant circumstances on a case-by-case
basis. The duty to accommodate is a complex notion and employers
must prove that they have made concrete attempts to accommodate an
employee before any dismissal based on undue hardship can be
Written with the assistance of Antoine Bourget-Rousseau,
About Norton Rose Fulbright Canada LLP
Norton Rose Fulbright is a global law firm. We provide the
world's preeminent corporations and financial institutions with
a full business law service. We have 3800 lawyers and other legal
staff based in more than 50 cities across Europe, the United
States, Canada, Latin America, Asia, Australia, Africa, the Middle
East and Central Asia.
Recognized for our industry focus, we are strong across all the
key industry sectors: financial institutions; energy;
infrastructure, mining and commodities; transport; technology and
innovation; and life sciences and healthcare.
Wherever we are, we operate in accordance with our global
business principles of quality, unity and integrity. We aim to
provide the highest possible standard of legal service in each of
our offices and to maintain that level of quality at every point of
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).