Kevin Marshall
October 23, 2023
How do you know when an Employee has a gambling addiction?
Gambling encompasses many activities, with varying degrees of legality, ranging from innocuous to dangerous. Gambling does not unduly affect the work environment. However, when a person repeatedly craves the thrill of gambling, it can become a real addiction. Risk and thrill-seeking become an essential and consuming part of their lives.
At that point, work and other obligations may be scheduled in a way to minimize interference with gambling, e.g. regularly taking long lunch breaks. As gambling addiction worsens, it may give way to substance abuse, financial issues, depression, and/or insomnia, with serious consequences for the workplace, such as inexplicable inventory losses, requests for wage advances or loans, absenteeism, poor hygiene and appearance, and mistakes.
Here is an example of how job performance can suffer from out-of-control gambling:
John had been a steady worker for several years. However, in the past few months, he has taken long breaks, disappears for hours at a time and has called in sick frequently. He seems wound too tight, snapping at co-workers and unable to concentrate on the job. Creditors have been calling to garnish his wages. His wife is threatening to leave him, he can’t make his normal monthly payments and the bank has started foreclosure proceedings on his house. It turns out John has a gambling problem.
When you have identified gambling addiction in your employee, these questions arise: Is gambling addiction a “disability” in Ontario, thereby affording the employee legal protection? If so, what are obligations for you as the employer?
Does the Worker with a gambling addiction have Legal Protection in Ontario?
Gambling addition is treated in the same manner as alcohol or drug addiction. The Ontario Human Rights Code uses a very broad definition of "disability" that covers physical, psychological and mental conditions; some of these are visible and some are not visible.
Accordingly, once the acts, omissions and/or assertions of an employee establish that they are addicted to gambling, the employer will have the same duty as to any other employee who is deemed “disabled”.
How can Employers Protect their Business and fulfill their Obligations to Addicted Workers?
Once gambling addiction has been identified, then you, as the employer, must make a concerted effort to protect your business. This may involve taking concrete steps to minimize loss of morale among co-workers, many of whom will note the declining productivity of their addicted colleague. It may also involve revising tasks assigned to the addicted worker to minimize contact with suppliers or customers, revising signing power on banking accounts, or monitoring your inventory more closely.
Such revisions must be done with wisdom and tact. In order to eliminate the possibility of a viable constructive dismissal claim, they should not include a reduction in hours or wages.
Workers deemed “disabled” are still subject to sanction for inappropriate behaviour. For example, physical violence or sexual harassment are grounds for termination for cause or lesser sanctions. The same usually holds true of theft of company assets, even in instances where the worker uses the assets to feed a gambling addiction.
That said, employers cannot automatically terminate employees due to their addiction per se, even if it results in loss of productivity. Employers are required to accommodate these employees and may face severe consequences if they fail to do so.
The duty to accommodate means that the employer is required by law to take appropriate steps to eliminate discrimination arising from company policies, practices or barriers that may have a negative impact on the employee suffering from the addiction.
The employer is obliged to accommodate to the point where they or the company may encounter “undue hardship”. Undue hardship means that the accommodation would create an unduly burdensome environment for the employer, such as financial costs or serious business damage and health and/or safety concerns.
When requesting an accommodation, an employee is not required to provide specific information about the nature of the illness or a specific diagnosis (such as addiction or mental health problems). However, the employer can expect to be provided with enough information to understand the necessary accommodations, including any changes that affect the request for accommodation.
The employer is obliged to respect the confidentiality of the employee and respond to requests in a timely manner.
The employer should enter into a formal written agreement with the employee outlining the accommodation and timing. Confer with the worker to make sure the accommodation meets specific needs.
What Steps should an Employer take if they suspect an Employee has a Gambling Addiction?
In some cases, an employee will ask for accommodation without expressly acknowledging an addiction. In those cases, the employer should, with wisdom and tact, start a conversation with the worker. The employer may request relevant information and supporting documents from the worker. The employee must then cooperate with these requests if reasonable, which could include providing the employer with information from their doctor about their health condition.
As an employer, it is important to remember that you cannot stop their gambling; however you can begin a dialogue, offer your thoughts and take steps to protect yourself. The employee may refuse to talk about gambling or deny that you have anything to worry about. Patience will be required, coupled with concrete steps to protect your business.
With time, the employee may decide to seek support for the gambling behaviour and begin the long road to recovery. However, remember that this journey can be very difficult. The worker will likely experience adversity, emotional roller coasters, and setbacks along the way. Prepare yourself for that possibility and never lose hope.
