The well-being of employees and co-workers is necessary for all healthy workplaces regardless of company size or industry type. Wellness issues can be a minor background-detail or a major cause/factor even when an arbitration, mediation or workplace investigation centers around another subject.
Self-medication via the use, or abuse, of illicit substances is also closely involved in wellness issues. With the recent legalization of cannabis in Canada (in October 2018), we can expect to see a changing landscape in how cannabis relates to employee wellness.
The following overview focuses on two basic aspects that are helpful in better understanding the nature of workplace-related wellness issues as they are dealt with by arbitrators, mediators and workplace investigators. The first is occupational health and safety regimes and the second is examples from courts cases and arbitration decisions.
Occupational Health & Safety Legislation
All provinces in Canada have statutes that address workplace safety and well-being, which are generally referred to as “occupational health & safety”, or OH&S, legislation.
In British Columbia, the Workers Compensation Act, RSBC 1996, c 492 (“WCA”) and its 12 corresponding regulations – including the Occupational Health and Safety Regulation, BC Reg 296/97 – provides the framework by which duties are imposed on a variety of people in order to promote safe work environments. More specifically, within Division 3 of the WSA duties are imposed on:
- employers (section 115);
- workers (section 116);
- supervisors (section 117);
- owners (section 119);
- suppliers (section 120); and
- corporate directors and officers (section 121).
While the WCA frameworks for refusing unsafe work, reporting injuries, and appealing WCA-related decisions are sources of legal processes that involve wellness, matters pertaining to wrongful termination can also involve issues related to well-being.
For this reason, it is relevant to recall that the general law regarding termination is different for unionized versus non-unionized employees. For unionized workers, arbitrators apply the test set out in William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518,  1 Can. L.R.B.R. in order to determine whether dismissal is justified or whether a different outcome should occur (including reinstatement of the worker to their job with or without a lesser sanction, or other compensation). For non-unionized employees, the Supreme Court decision in McKinley v. BC Tel,  2 SCR 161, 2001 SCC 38 (CanLII) sets out the guiding principles in determining whether employee conduct/misconduct justifies dismissal.
***For a detailed review of the respective test and principles, please refer to the “Discipline and Termination” section under the “Areas of Focus” tab of this website.***
Real-life Examples of Wellness Issues and the Law
In Nadeau c. Administrateur général (Service correctionnel du Canada)
2018 CarswellNat 2331, 2018 FPSLREB 28 (CanLII), (“Nadeau”) a drug detection dog-handler was terminated for his off-duty cannabis use. After testimony established that the worker had a cannabis use disorder (ie. disability), the adjudicator referenced some of the evidence provided during the arbitration hearing which connected the disability with the worker’s overall well-being:
“When asked whether drug addiction and personality disorders are connected, [a medical professional expert-witness] answered that people with personality disorders are often more likely to develop a use problem. She added that a personality disorder is not necessary to develop a use problem. However, a person with a use problem can develop a personality disorder.
…When asked about the impact of depression combined with a use problem, [the medical professional expert-witness] answered that the grievor had been prescribed medication as part of treatment for major depression. The entire situation has to be considered because if the depression is not treated, then that does not help with treating the use [of cannabis], and vice versa.”
The arbitrator went on to find that the employer had discriminated against the worker by not considering/attempting to accommodate his disability and therefore the discipline/termination was not justified. In light of the worker’s efforts to seek treatment, and acknowledgment of his misconduct, the arbitrator reinstated him and substituted termination with a 6-month suspension as discipline.
A similar result occurred in Old v. Ridge Country Contracting 2015 BCHRT 63, 2015 CarswellBC 951 (“Ridge Country”). In that case the terminated worker had been medicated for a long-term illness involving seizures but ceased taking the prescribed medication due to its side effects. The worker substituted cannabis as treatment, reporting it was equally effective and without side-effects, but was terminated. The BC Human Rights Tribunal found that the employer did not take steps – such as consulting the worker’s physician regarding side-effects of cannabis – to accommodate the worker and thereby allowed the worker’s complaint.
Both of these cases pre-date the legalization of cannabis and it is interesting to speculate the effect prior-legalization would have had. In Nadeau, one of the grounds for dismissal was failure to comply with the public service policy that involved obeying the law – currently, off-duty cannabis use creates no illegality issue. In Ridge Country, non-cannabinoid medication had been prescribed, but perhaps cannabinoid medication would have been initially prescribed given the proliferation of cannabis as a medication. Suffice it to say, legal considerations of wellness will be impacted in some way, shape or form by legalization.
The WCA is BC’s occupational health and safety statute and it imposes duties on employers, workers, owners, supervisors, and others related to field of employment in order to ensure safe workplaces. Situations involving cannabis use, or other forms of self-medication, require careful attention since there is also a duty to accommodate disabled/ill workers and the legalization of cannabis will likely alter how arbitrators view use of the drug.
Wellness in the workplace is an important aspect of employment that not only affects everyone but creates duties for people no matter what their role in employment. To better understand those duties, or how wellness has been dealt with in previous arbitral or court decisions, please contact Neil Hain.