The Question
Two years ago, I told my employer I was going to a methadone clinic because I had been addicted to heroin for six months. I got help and have been clean, but ever since I told them they have changed how they are treating me.
Decisions from upper management with scheduling and machine maintenance are making me feel like they are trying to “push” me out the door after 14 years of employment. Other employees aren’t held to the same demands. I feel they are trying to ask for something that is impossible to achieve and have created a very stressful atmosphere, to where I have just put my two weeks’ notice in. Is there anything I can do besides report my concerns to the owner? Is this considered discrimination if they treat me differently than others after finding out I was in a treatment program?
The First Answer
Lee Satveit, barrister & solicitor, Taylor Janis LLP, Edmonton
You may have a valid claim under human-rights legislation (federal or provincial) because of discrimination (i.e., differential treatment) on the basis of a real or perceived disability (i.e., an addiction). It will be crucial to determine whether your claim should be made to the Canadian Human Rights Commission or to your province’s provincial human-rights commission. The deadlines to make a human-rights complaint are often very short (e.g., one year), so you should consult with a lawyer immediately.
Depending on the extent of your employer’s conduct, you may also have a valid case to bring to court for constructive dismissal, on the basis that your employer has, through its actions, fundamentally and unilaterally breached the employment agreement (whether written down or implied by law) by radically changing the terms of employment or by making continued employment impossible. A lawyer should be consulted to determine whether a constructive dismissal claim would be successful, as well as to determine whether the case overall would be to your financial advantage. An employee of 14 years could have a very valuable claim.
In addition to the above, if your employer has created a very stressful environment, then you may be able to make a valid complaint under applicable occupational health and safety legislation in your province.
It is generally advisable not to resign until you have received appropriate legal advice. However, if you have already resigned or given notice you may still yet be able to succeed with the options above.
The Second Answer
Elichai Shaffir, partner, Cavalluzzo LLP, Toronto
Starting with your second question first, the answer is likely “yes." Human-rights legislation prohibits discrimination in employment because of a disability, which encompasses drug abuse and dependence. Even if you no longer suffer from a continuing disability, you would still be protected by human-rights legislation if you had a drug dependency in the past. This means that your employer cannot treat you differently than others if the reason for doing so is in any way related to your participation in a drug-treatment program, even if you attended the program two years ago.
As to your first question, the answer depends on whether you’ve truly reached the end point with this employer. If you haven’t, you may want to speak with the owner, or the HR department, to see whether there’s a way to right the situation and continue your employment. If that’s not possible or desirable, your best course of action is trying to negotiate a fair severance package, which would account for your 14 years of service and the hardship you suffered. Failing that, you could start a human-rights complaint. Regardless of the option you choose, the most practical advice that I can offer is to first consult with an employment lawyer who has expertise in the area of human rights to help you achieve your best outcome.
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