A manager reports to you that one of your workers, Joe, has admitted to a problem with alcohol. Or perhaps there’s an accident in the workplace and the ensuing investigation reveals that Jane is a regular drug user. Or John arrives at the office, once again unfit to do his job because he’s “under the influence.”
Now that you know, what should—or can—you do?
All jurisdictions in Canada recognize that drug and alcohol dependencies are forms of disability. Human rights law prohibits discrimination based on disability.
Therefore, employees who are dependent or drugs or alcohol must be accommodated by employers to the point of “undue hardship.” Through case law (mainly human rights tribunals and labour arbitrations), all jurisdictions recognize the need for employers to accommodate substance-dependent employees. Policies that result in the employee’s automatic loss of employment or reassignment, or which impose inflexible reinstatement conditions without regard for personal circumstances are unlikely to meet this requirement.
Accommodation could include the necessary support to permit the employee to undergo treatment or a rehabilitation program, and consideration of sanctions less severe than dismissal.
According to the Canadian Human Rights Commission Policy, the extent to which the employer is required to accommodate an employee who is dependent on drugs or alcohol depends on a variety of factors, including the following:
- Health and safety concerns
- Past efforts to accommodate
- The response to prior treatment or corrective programs and prognosis
- The nature and seriousness of the violation
- The costs of the required accommodation
- The size of the operation
- The economic conditions facing the employer
- The availability of other, non-safety sensitive, positions.
The Commission supports the use of methods other than drug and alcohol testing for dealing with employee impairment. Awareness, education, rehabilitation, and effective interventions such as enhanced supervision are the most effective ways of ensuring that performance issues associated with alcohol and drug use are detected and resolved.
Should all efforts at support and accommodation prove fruitless, the Canadian Human Rights Commission Policy provides that an employer may be able to claim “undue hardship” by clearly demonstrating that the employee continues to repeatedly lapse despite participating in comprehensive employer-supported rehabilitation programs, or that he or she refuses to participate in the accommodation process.
Specialty Technical Publishers (STP) has recently updated its publication Employment Law: Solutions for the Canadian Workplace and also provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. These include:
