By David M. Brown

Doing business in Canada, it seems that there’s always an endless array of networking events, business functions, award galas and fundraisers to attend. While the purpose of these events varies, one constant among them is the ample supply of pinot noirs and small batch micro-brewed beers. With so many occasions, it can be a little too easy to drink.

Drug and alcohol addictions are far more common than many people may think. While some people with addictions may be considered “high-functioning”, addictions can also have wide-reaching implications within organizations. These implications may include safety concerns, lower productivity, higher absenteeism, decreased morale and an impact on an organization’s image.

Addictions in the workplace lay at a complicated intersection of many areas of law, including human rights, privacy and workplace safety. They are also increasingly receiving the attention of our legal system. Here are some common concerns.

Addictions as a Disability
It is now clearly established that addictions are recognized as mental health issues under the BC Human Rights Code. In fact, we no longer look at addictions as a bad habit or a lack of self-control, but rather a chronic, life-threatening disease. As with all disabilities, employers have a duty to accommodate persons with addictions and cannot discriminate against them because of their illness.

Recognizing this, when an employer becomes aware of addictions in their workforce, they must approach the issue with flexibility and balance. This may include providing the person with time away from work, paying for addictions treatment and being fair when the person has setbacks or relapses.

However, an addiction cannot be forever used as an excuse for misconduct and bad behaviour. While employers have a duty to accommodate, persons suffering from a disability also have an obligation to facilitate the accommodation process. For persons with addictions, this may mean seeking and abiding by a treatment program and making efforts to abstain.

Addictions and Safety
Substance abuse can also have a significantly negative impact on workplace safety, either by a person attending work impaired or by neglecting their well-being to the point where they are sleep deprived or malnourished. While safety should be a priority for all employers, some work environments (including agriculture, manufacturing and mining) may rightfully be viewed as safety sensitive.

Addictions can easily compromise the safety of the individual and their co-workers. Acknowledging this, employers have obligations under Occupational Health and Safety regulations to intervene when someone is suspected of being impaired while at work. This responsibility is two-fold, as employers have an overarching duty to provide for a healthy and safe working environment, and they are also prohibited by Occupational Health and Safety regulations to knowingly allow a person affected by alcohol or drugs to remain at the workplace.

Addictions and Privacy
Given the safety concerns surround addictions, many employers have looked to random and mandatory testing of employees as part of their drug and alcohol policies. This practice, however, has been highly criticized of late and has been the focus of many court decisions, including the Supreme Court of Canada.

In British Columbia, a person’s bodily fluids may be protected by the Personal Information Protection Act, which recognizes that with some exceptions, “an organization may not collect employee personal information without the consent of the individual”. If an employee refuses to provide a sample for drug and alcohol testing, can an employer insist on it being provided? There’s ongoing debate in the legal community with respect to that answer.

Also, the Supreme Court of Canada has come out very strong on the importance of privacy in employment related drug and alcohol testing. In one case on the use of a random alcohol testing policy, the Court reiterated that “the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 2 SCR 458). Any way you look at it, this is very strong language in favour of privacy concerns.

Closing Remarks
Addictions are complicated, as is the law surrounding addictions. This is particularly true for companies trying to maintain a sensitive balance between productivity, disability management, safety obligations and privacy concerns.

An excellent practice is for management to put in place strategies and resources to deal with addictions in the workplace prior to having issues surface. This can include conducting an internal needs assessment, identifying safety-sensitive positions, confirming supports through Employee Assistance Programs or disability insurance plans, and developing a professional Alcohol and Drug Policy.

David M. Brown is presenting Dealing with Drugs and Alcohol in the Workplace in Whitehorse on May 5, 2015. For more information on this and other professional development opportunities, please visit HRMA’s online calendar.

David M. Brown is an employment lawyer with the Kelowna law firm of Pushor Mitchell LLP. David regularly speaks and writes on a variety of employment issues. Pushor Mitchell LLP offers monthly employment seminars to employers. For more information on these presentations or on other employment concerns, 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.