July 1, 2018, a date that some wait for with anticipation and others dread. This date, according to the recently tabled legislation by the Liberals, is the date when recreational marijuana is supposed to become legal in Canada. For employers, however, this date and legislation create yet another headache, something that has been recently coming up more and more often: how to handle individuals with drug and/or alcohol substance issues when such issues start to creep into the workplace.
Understandably, this is a very difficult and personal subject, something most employers wish to never to have to broach. Yet new policy papers by the Ontario Human Rights Tribunal and the Canadian Human Rights Commission both discuss drugs and alcohol in the workplace and conclusively establish that an individual who abuses these substances is considered “disabled” and entitled to accommodation from their employer to the point of undue hardship, just like any other disabled employee in Canada.
So in the face of this, what is an employer to do when they encounter an employee they suspect is intoxicated and/or under the influence while at work? Many employers are now resorting to conducting on-site drug and alcohol testing, hoping to identify and remove a potentially intoxicated employee before any damage can be done. Yet drug and alcohol testing, and the rights of the employer, must always be balanced with the rights of the employee, first and foremost among them the employee’s right to privacy.
Drug and alcohol testing is considered by the courts and tribunals to be extremely invasive and, as such, they have outlined that such testing can only be done when the employer has “reasonable cause”. “Reasonable cause” is not a defined term and very much depends on the workplace itself.
The standard for “reasonable cause” will be much lower in safety-sensitive work environments, such as a construction site or airport, than it would be for an office workplace setting. Furthermore, even where there appears to be “reasonable cause”, such as a situation where an employee comes in smelling like alcohol or was seen consuming a substance, both the tribunal and the commission stress that the employer should consider alternatives before resorting directly to drug and alcohol testing.
Employers are encouraged to consider different forms of medical assessments, or even counseling, before administering any drug or alcohol test. A failure to do so, even with the best of intentions, may lead to a violation of the employee’s human rights, exposing the employer to substantial damages.
Sometimes, however, drug and alcohol testing is unavoidable and necessary to ensure the safety of other employees. In such instances, testing would likely be deemed appropriate. But does a failure of a drug and/or alcohol test by an employee give the employer the automatic right to terminate said employee? The courts and tribunals have been adamant that it may not and an employer should further probe the situation to determine whether an employee is “disabled” due to an abuse problem and in need of accommodation to the point of undue hardship on the employer.
If the employer automatically terminates said employee and it later becomes evident that the employee was suffering from abuse issues, the employer will likely be found to have discriminated against the former employee.
As our society becomes more and more comfortable with the concept of recreational drugs, employers are likely to face such issues with greater frequency. It is imperative that in such situations an employer consider not only their interests and rights, but also those of the employee, before making any rash, and potentially costly, decisions.Employers are encouraged to consider different medical assessments, or even counseling, before drug or alcohol… Click To Tweet
Stan Fainzilberg is an associate lawyer with Samfiru Tumkarin’s Labour and Employment Law Practice Group in Toronto, Ontario.