care and the cost of police and other government involvement. It can also be a huge cost on an individual company, as well as a health
and safety risk.
What are an employer’s obligations, and how can you reduce the risk at your workplace?
“It surprises many employers that it comes under disability in the human rights code,” Turnpenny Milne employment law
yer Betty Psarris told HRM
. Although the statute does not specify drug and alcohol abuse, over the years court decisions have confirmed substance abuse is a disability.
Your duty to accommodate can be triggered by an employee confession, including a potential candidate, which means you can’t make a hiring decision based on someone’s current or past addictions. However, even suspecting that an individual has an abuse issue triggers the obligation to accommodate, because the employee has a “perceived disability”.
It’s an especially touchy situation because HR must seek more information. However, if they deny it then the employer can treat them like any other employee, Psarris said. Continue with the discipline process, possibly leading to termination.
“If you’ve gone through the right process and treated them like everyone else then your defense that they were terminated because of the progressive discipline process and not because of their disability is quite strong,” Psarris said.
It’s important to train managers to recognize some of the warning signs.
“Often, substance dependency is not overt and first appears in the workplace as performance or attendance issues,” AQ Group Solutions principal Kim Siddall said.
An increase in accidents at and outside work, general errors in judgment and a change in overall attitude can be a sign of substance abuse. Other signs include an increase in casual absences, especially around the weekend; increased tardiness; falling productivity or missed deadlines; and a change in appearance.
It’s also important to have a return to work plan, with written performance guidelines and expectations, and regular follow-ups, Siddall said. “Employers should expect relapses, and understand that relapse is a part of treating addiction,” she added.
The common types of accommodation for substance abuse issues include time off for rehab or counseling; lower performance standards; and flexibility of shifts, for example, if working the night shift is likely to trigger their addiction.
Ensure employees know their rights, that managers understand the expectations and processes, and if it’s an option for your company look at including addiction support in your benefits through an employee assistance program.
- Not having a policy
Many small and medium sized organizations “wing it” in these situations. It’s advisable to have a policy and process in place for all disability claims so HR is prepared when they arise.
- “X didn’t tell me so no need to accommodate”
The duty to accommodate starts when there is a perceived disability so employers need to be more proactive.
- Skipping procedures
Employers often take short cuts to accommodation, or rejecting accommodation. If you don’t go through the process of figuring out the limitations of the disability and assessing options for accommodating you could be liable regardless of what accommodation decision you make.
It doesn’t matter what process you use if you can’t show a court or tribunal that you went through it. Document every stage, with all the people involved recording the steps they took.
- Not considering alternate roles
Usually an individual can be accommodated within their current role, but if they cannot, you must consider accommodating them in another job, before claiming they cannot be accommodated.
Substance abuse costs Canada almost $40 billion a year in loss of productivity, increased