Dealing with substance dependence in the workplace is a tricky issue. As most HR managers know substance dependence, either previous or existing, is classed as a disability in Canada and the Canadian Human Rights Act prohibits discrimination on the basis of disability. Employers have a duty to accommodate under the act but also have a responsibility for due diligence when it comes to occupational health and safety. So, where is the line?
According to Jason Beeho, HR lawyer and partner at Rubin Thomlinson the answer is largely dependent on the circumstance but health and safety shouldn’t take a back seat to the duty to accommodate.
“If you’re looking at someone in a particularly safety sensitive position, the duty to accommodate does not require you to simply tolerate the situation,” he says. “You don’t want to leave the person in that role and potentially cause harm to themselves, coworkers and property.”
A two way street:
Legally, the onus is on the employee to tell you that they have a substance-abuse problem (and cooperate with you in consultations so that you understand their request for accommodation) if they are making a claim to accommodate.
If a frequently-intoxicated employee refuses to acknowledge that they have a substance-abuse problem, then you don’t necessarily have an obligation to accommodate their problem under human rights law.
Beeho says the duty to accommodate requires buy-in, participation and cooperation from the individual employee.
Your accommodation plan:
An accommodation plan is an important tool in managing an employee with substance dependence and should be drawn up with cooperation from the individual and the appropriate union if applicable.
Beeho says the accommodation plan provides an opportunity for the employer to ensure that the individual is safely performing their work.
“What that will often come back to is that the individual needs to have some time off and may also need to go into some sort of treatment program,” he says. “The key to that is the employer can insist on being provided with information that the treatment plan has been adhered to and has been completed.”
The issue is less clear when the substance-affected employee isn’t in a safety sensitive situation (for example, they’re not operating heavy machinery).
“It’s somewhat more onerous because you don’t have the safety mandate sitting in the background,” Beeho says. “That doesn’t mean you have to tolerate someone being intoxicated on the job any more so than in a safety sensitive situation and that doesn’t mean you will be less involved, there perhaps just won’t be the same urgency to your involvement.”
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