Jason Namechange has a history of trauma; at an earlier point in life he was diagnosed with post-traumatic stress disorder, which he subsequently sought treatment for and overcame. He is also an OPSEU member working in a public-facing capacity in a remote location in Ontario. One day, Jason was threatened with assault by a member of the public. All the pain and anxiety from days gone by returned. Jason had suffered a relapse of PTSD.
He immediately sought medical treatment and was referred to a specialist. At his appointment a couple of weeks later, that specialist strongly suggested taking a break from his regular duties. A sedative which made it impossible to drive was prescribed. Jason forwarded the doctor’s recommendations to his Human Resources department and requested a work accommodation that included reduced working hours and modified duties.
HR obliged his request for accommodation and asked him to have the doctor complete a Function Abilities Form (FAF). At a follow-up visit, Jason confided that in the days leading up to the first appointment, his anxiety was crippling. Without a prescription or other pain management resource, Jason used marijuana to self-medicate. At the end of the visit, he signed the blank form and provided it to his doctor to complete and fax back to his HR department.
Unbeknownst to Jason, the doctor decided to include the fact that he had used marijuana in the days leading up to his first specialist visit. At a Return to Work (RTW) meeting set up by teleconference, the HR professional in charge of Jason’s case expressed his concern. He was worried that Jason might be using marijuana recreationally, and that this use may affect his work performance. Jason insisted that the use was one-time only, and a get-me-over until he could receive proper care. The issue, for the time being, was dropped.
The happy Wednesday came when the doctor cleared Jason for return to full, unmodified duties. The FAF was completed (this time in Jason’s presence) and returned to HR, who set up a meeting to review the form for the following Monday.
The next day, HR cancelled Monday’s phone meeting. They told Jason they had some concerns regarding the marijuana use and would like to see him in person. The member was not yet cleared by HR to use the company vehicle, so management paid for a taxi service to take him to their Toronto office from his Barrie home. The return fare totalled over $400.
Jason was incredibly nervous, and his steward was alarmed. This had been a quick departure from an otherwise typical RTW scenario. The circumstances around Jason’s story, along with everything the steward knew about Management’s modus operandi suggested discipline or termination for violating some aspect of the employment contract, internal code of conduct, or CBA.
The night before the meeting, the steward reviewed the situation with his OPSEU staff rep. The rep, who also knew the organization’s management style, was concerned that some form of discipline was imminent.
The staff rep then summarized the conversation in an e-mail, which he sent to several members on OPSEU staff, including two Grievance Officers.
Their response was thorough and immediate. The first bit of advice the steward received was to council Jason to be honest. When dealing with medical information, everything is verifiable. More to the point, the Ontario Human Rights Code (OHRC) prevents an employer from disciplining or terminating someone on the basis of an addiction.
The second tip concerned the Personal Health Information Protection Act (PHIPA). The relevant section of PHIPA prevents medical information that is provided to an employer for one purpose (in this case, an accommodation) to be used for any other purpose, such as discipline.
Before the meeting, Jason was clearly agitated. The steward advised the member to be completely honest. If the pot use was recreational and habitual, the legislation would protect him. He was able to relax a little when the steward advised he couldn’t legally be terminated unless the practice led to diminished job performance.
During the meeting, the employer asked several times whether the member had any other problems/issues they wanted to share. 3 separate times, the member had to say “no”. Then the steward cited the PHIPA legislation. This seemed to change the tone of the sit-down from accusatory to assistive. Management advised Jason of his Employee Assistance Plan (EAP) and ended the meeting, exiting with the letter-sized envelope they came in with. A non-disciplinary letter of expectation was later placed on the employee's file.
To me, the moral of this story is that though stewards may sometimes feel alone in defending our member's rights in meetings, there is a world of resources and support as near as your Local Staff Rep.
OPSEU was there when Jason needed them. Don't hesitate to ask when you're unsure.
If you have any questions about who to talk to when you need your union, please do not hesitate to contact your steward, staff rep or Local Executive.