How WCB and Human Rights Comingle

As workers’ comp specialists, we often receive inquiries from employers seeking guidance on the legal implications of workplace injuries and associated WCB coverage. One complex issue that frequently arises involves injured workers struggling with substance abuse. In this Q&A installment, we explore a real-life scenario in which an employer faces a challenging WCB claim and must balance their obligation to accommodate disabilities, respect human rights, ensure workplace safety whilst complying with labour law. Q: I’m an employer with an injured worker performing modified duties while recovering from a workplace injury. This worker has a history of substance abuse, and despite my offer to send them to rehab, he refused. Last week, the employee crashed a company truck in our yard while intoxicated. I want to know if WCB will continue to cover this worker, and what my legal obligations are regarding any further duty of care. As I see it, his misconduct is cause for termination, but will WCB, Human Rights, and the Courts see it the same way? A: Achieving compliance in a modern society is like trying to dance tango on the head of a pin. The sheer volume of regulations and overlapping requirements, both statutory and regulatory, along with the constant changes to legislation make it exceedingly complex for employers to achieve compliance. Each layer of bureaucracy and the flux of case law further convolutes the landscape, often resulting in conflicting requirements that require careful consideration and interpretation. This complexity makes it nearly impossible to understand and adhere to all the necessary rules and regulations, which can result in costly fines, penalties, and reputational damage. Your predicament raises several key questions, including: 1) Is the worker entitled to ongoing WCB compensation? 2) Is the worker in breach of their employment contract, thus providing grounds for dismissal? 3) Have you exercised prudence in respect of balancing accommodating disabilities, respecting human rights, and ensuring workplace safety? First, it’s important to understand that WCB operates on a no-fault basis. The aim of the no-fault system is to ensure that workers receive prompt medical treatment and financial compensation while avoiding lengthy legal battles over fault and liability. By providing workers with no-fault insurance coverage, injured workers can receive compensation and support even if their own actions contributed to their injuries. When an injury arises out of and during the course of employment, a worker is likely entitled to WCB benefits irrespective of the part they played in the injury. The reason intoxication doesn’t nullify coverage is that under the no-fault doctrine, the focus is on the fact that the injury occurred during the course of employment, rather than on the cause of the injury. In other words, WCB is designed to provide coverage regardless of who or what caused the injury, as long as it occurred in the context of employment. But there is an exception: where a worker knowingly disregards company policy, it may be viewed by WCB as a breach of duty to cooperate. If deliberate disregard can be shown, WCB might suspend the worker’s benefits on grounds of non-compliance with company policy. As for the second question, I must emphasize that I’m not a lawyer, and my response shouldn’t be construed as legal advice. That said, the worker’s breach of the employment contract due to violating your company’s Drug and Alcohol (D&A) policy might provide grounds for termination with cause. Establishing cause can be an uphill battle; as the employer, you must show that you’ve taken reasonable steps to address the issue and that the worker’s conduct has fundamentally breached the employment relationship. Offering rehab and issuing written warnings, if applicable, are critical factors in proving due diligence. The type of substance involved is also an essential factor to consider. If the worker was using pain medication due to their injury, a court may be more lenient. However, if the substance was alcohol or illicit drugs, the situation might be viewed differently if consumption was merely recreational in nature. Now, let’s tackle the third question, which revolves around balancing the duty to accommodate the worker’s disability (addiction), respecting human rights, and ensuring workplace safety. Employers have a legal duty to accommodate employees with disabilities, including addiction, up to the point of undue hardship. It’s essential to explore all reasonable accommodations before considering termination. However, employers also have a responsibility to maintain a safe work environment for all employees. Balancing these obligations requires a careful assessment of the worker’s needs, the potential impact on other employees, and the overall safety of the workplace. If the employee’s substance abuse poses a significant risk to themselves or others, the employer may need to take decisive action, such as termination, to protect the safety of the workplace or the public at large. Terminating an employee in these circumstances may expose the employer to the risk of a wrongful dismissal claim or a human rights complaint based on discrimination due to disability (addiction). To mitigate this risk, it is advisable to consult legal counsel and carefully document efforts to accommodate the worker’s disability and ensure workplace safety. Compliance is a necessary aspect of any business, but achieving full compliance with every regulation, rule, and law is a Herculean task that is becoming increasingly unrealistic for most employers. Instead, employers should focus on establishing a culture of compliance, where they make a good-faith effort to understand and adhere to relevant laws and regulations while prioritizing prudence and reasonableness in the context of specific circumstances. This approach can help minimize the risk of legal liability and reputational harm while promoting ethical and responsible business practices. It’s important to recognize that compliance requirements are continually evolving, and employers must stay vigilant and adaptable in the face of these changes. Regulatory bodies, lawmakers, and courts are constantly refining and updating the rules governing the employment relationship, and employers must remain aware of these changes to ensure that their practices remain compliant. Moreover, the complexity of compliance means that employers must often make judgement calls about what constitutes reasonableness and prudence in specific situations. This requires a deep understanding of the legal and ethical frameworks that underlie WCB legislation and employment law, as well as a commitment to promoting the larger goals of the business while ensuring compliance with relevant rules and regulations.