With a strong focus on drug, alcohol and gambling addiction in the press, a number of our clients have asked us, ‘Is addiction a disability under Victorian anti-discrimination law?’

While there are no definitive legal authorities confirming addiction is a disability under the Equal Opportunity Act 2010 (Vic) (EO Act), case law from other jurisdictions supports this view.

DRUG ADDICTION RECOGNISED AS A ‘DISABILITY’ UNDER FEDERAL LAW

The Federal Court has confirmed that dependence on opioids (such as methadone or heroin) is a disability under the Disability Discrimination Act 1992 (Cth) (DDA) (Marsden v HREOC [2000] FCA 1619). As a result, it is unlawful under the DDA for an employer to treat an employee or prospective employee less favourably than the employer would treat someone else because the person is addicted to opioids, has previously been addicted to opioids, or because the employer has imputed opioid addiction to the person. An employer may also breach the DDA by failing to make reasonable adjustments for an employee with an opioid addiction or by requiring an employee to comply with an unreasonable requirement or condition that he or she cannot comply with due to an opioid addiction.

On the basis of this case, it is also arguable that other types of addiction (such as other drug and alcohol addiction, and possibly gambling addiction) constitute a disability under the DDA.

THE NEW SOUTH WALES POSITION

Decisions from the Civil and Administrative Tribunal of New South Wales (and its predecessor) have also confirmed that opioid dependence is a disability for the purposes of the Anti-Discrimination Act 1978 (NSW) (NSW Act) (Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99; Carr v Botany Bay Council [2003] NSWADT 209).

Further, the very recent decision of Hinder v The Salvation Army (New South Wales) Property Trust [2015] NSWCATAD 239 held that, despite the lack of case law, it is arguable that gambling addiction is a disability under the NSW Act.

While the definition of ‘disability’ under the NSW Act has been interpreted as extending to opioid dependence, it is lawful under the NSW Act for employers to discriminate against a person on the basis of addiction to a prohibited drug if the person is actually addicted to a prohibited drug at the time of the discrimination (see section 49PA). This exception was inserted into the NSW Act in response to the Marsden decision and reflects the then New South Wales government’s view that drug addiction should not be treated as a disability for the purpose of anti-discrimination laws.

STILL OPEN FOR DEBATE IN VICTORIA?

The position in Victoria is less clear.

The question of whether addiction constitutes a disability under Victorian anti-discrimination law arose in the case ofMcDougall v Kimberly-Clark Australia Pty Ltd (Anti-Discrimination) [2006] VCAT 2211. While the applicable legislation in this case prohibited discrimination on the basis of ‘impairment’ rather than ‘disability’ as used in the current EO Act, the two terms have substantially the same definition.

The applicant in McDougall claimed that her employer had indirectly discriminated against her by not paying her salary continuance during a time when she claimed she suffered an impairment, being a gambling addiction. The employee alleged that her employer required her to work in Victoria in circumstances where her gambling addiction prevented her from doing so.

Expert medical evidence was provided in McDougall that it was still open to debate whether pathological gambling constituted a mental disorder, mental impairment or disability based on the state of scientific knowledge at the time.

Ultimately, the Tribunal did not decide whether a gambling addiction was an impairment, as there was insufficient evidence to satisfy the Tribunal of the duration and timing of the employee’s gambling addiction.

IMPLICATIONS FOR EMPLOYERS

In light of the Federal and New South Wales decisions referred to above, there is substantial scope to argue that the definition of ‘disability’ under the EO Act (which is broadly consistent with the definitions under the DDA and the NSW Act) extends to addictions.

Even if judicial authority emerges to clarify the position under the EO Act, Victorian employers are still required to comply with their obligations under the DDA. Following Marsden, this requires employers not to discriminate against employees on the basis of an actual or imputed addiction to opioids (and possibly other addictions).

As a result, employers need to be mindful of their obligations under anti-discrimination laws when determining how to manage an employee who has disclosed an addiction or whose unsatisfactory performance or behaviour may be caused by, or related to, an addiction.

Employers in these circumstances should consider:

  • developing a drug and alcohol policy
  • whether a drug testing policy is reasonable and appropriate given the workplace and the work done by particular employees
  • providing leave and other support to employees receiving treatment for addiction
  • placing limits on the availability of alcohol at work related functions and events
  • watching out for employee behaviour that may indicate drug or alcohol addiction, such as: absenteeism; excessive leave or lateness; low productivity; poor concentration, judgement and decision-making; excessive or unreasonable aggression; and deterioration in relationships with colleagues
  • obtaining medical advice to determine whether an employee’s addiction is caused by an underlying disease or disorder, the employee’s ability to perform the inherent requirements of his or her role in light of the addiction, and any reasonable adjustments required to enable the employee to perform the inherent requirements of the role.