By David Brown

Addressing drug and alcohol abuse in the workplace is a challenging and sensitive issue, as addictions sit at the crossroads of privacy law, human rights, occupational health and safety and management rights.

From a management perspective, substance abuse impacts several important employer interests and the employee’s ability to meet expectations flowing from the employment relationship. Some of these expectations include the employee’s ability to:

• attend work punctually and regularly;
• perform assigned duties competently and fully capacitated; and
• perform assigned duties in a healthy, safe and conscientious manner.

Recognizing the competing rights and interests at play when concerns over substance abuse arise, it is important for management to have a clear understanding of how and when they should intervene.

When Substance Abuse is Suspected
Drug or alcohol dependency is now clearly recognized as a disability. For this reason, human rights law and the duty to accommodate become engaged when an employer either knows or ought to know of the disability. Recognizing this, if the employer suspects that the employee’s absenteeism or performance issues are related to substance abuse, it has a duty to make inquiries regarding the health of the employee before taking disciplinary action or other steps that adversely affect the employee’s employment.

In a sense, the “duty to inquire” is akin to an informal and internal investigation. It can include making notes and observations about the employee’s conduct (arriving late, slurred speech), the employee’s appearance (glossy or blood-shot eyes, odour) and of course speaking with the employee in question and his or her co-workers.

Naturally, meeting with someone suspected of having an addiction issue will not be a typical meeting or interview. The topic is very sensitive and it should be anticipated that the employee may deny the allegation, become defensive or become aggressive. Management needs to be respectful, supportive and must recognize that the employee’s behaviour (including a denial) is a symptom of the disability. Misbehaviour associated with an addiction may be involuntary and should not necessarily be considered a culpable misconduct.

If the employee confirms a substance abuse problem, the employer should immediately begin to work with the employee to manage expectations and to identify and support a relevant accommodation plan. This plan can include a leave of absence to seek treatment and a flexible schedule to allow for appointments with doctors, counselors or support services.

If the employee denies having an addictions issue, the employer may then be in a position to address performance and safety issues through corrective actions. Even when an employee denies an addiction, management should clearly document the discussion with the employee, summarizing concerns raised regarding substance abuse and any discussions of accommodation. While the employer must be sensitive to the fact that denial of an addiction may also be a symptom of the illness, the employer will nonetheless be in a stronger position to address problem behaviour through corrective action and progressive discipline without raising discrimination concerns.

Mandatory or Random Testing
Some employers, particularly in safety sensitive industries, are inclined to take a proactive approach to drug and alcohol use by imposing random testing of employees. This type of testing has been the topic of significant debate in recent years due to its invasive nature and underlying human rights questions. In fact, random testing has even been the subject of a recent Supreme Court of Canada decision.

Where employers have argued that random drug and alcohol testing is necessary to promote safe workplaces, our courts have largely rejected this reasoning. Presenting a dangerous workplace will not in itself be sufficient to justify random alcohol or drug testing. For today’s safety sensitive employers, random alcohol and drug testing will be carefully scrutinized, and will only be permitted in a dangerous working environment where there is evidence of an existing general problem of substance abuse in the workplace.

Recognizing this, testing can be permitted where an employer has reasonable cause to believe that an employee is impaired, where the employee has been involved in an accident or near miss, or as part of a return to work program for substance abuse.

Addressing substance abuse in the workplace is complex and multifaceted, pitting diverse and competing interests in privacy, human rights and management rights against one another. In this environment, employers need to be vigilant by being respectful and supportive of disabilities and treatment plans, while also ensuring a healthy and safe working environment.

Employers who suspect that an employee has a substance abuse problem are encouraged to get legal advice to discuss the duty to inquire and their obligations under the duty to accommodate.

This article is the fourth in a series written on workplace investigations. Read previous entries in this series and watch HRVoice.org for additional articles coming soon.

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact David at dbrown@pushormitchell.com.

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.