The national epidemic of opioid abuse and overdoses is almost a daily feature in news media. Meanwhile, recent figures indicate that prescriptions for painkillers continue to increase in Canada. It is in this context that the Canadian Human Rights Commission recently released a new guide: Impaired at Work: A guide to accommodating substance dependence. As stated at the outset of the guide, its purpose is “to help federally-regulated employers address substance dependence in the workplace in a way that is in harmony with human rights legislation.”
The definition of disability under the Canadian Human Rights Act includes “previous or existing dependence on alcohol or drugs.” It follows that federally-regulated employers have a duty to accommodate an employee with substance dependence. The Impaired at Work guide sets out a five step process to fulfilling this duty:
- Recognize the signs: Employers may observe negative changes in an employee’s behaviour, performance, and attendance at work. While these changes are not necessarily indicative of substance dependence, in some cases, the observed behaviour could be the consequence of substance dependence.
- Talk about it: Observed negative changes in an employee’s behaviour, performance, and attendance at work may trigger the employer’s duty to inquire. This duty requires the employer to speak with the employee about what may be causing the negative changes.
- Gather and consider relevant medical information: Medical information is likely required in order for the employer to determine if the employee has a disability and what, if any, accommodation may be required and available in the circumstances.
- Accommodate: If an employee is diagnosed with substance dependence, then the employer’s duty to accommodate is triggered. The Commission’s guide provides suggestions for the development and implementation of an accommodation plan, and emphasizes that accommodation is assessed based on the particular circumstances of the individual employee.
- Follow-up and adjust: The last step is to follow-up on a regular basis with the employee, and to adjust the accommodation plan where necessary. The Canadian Human Rights Commission states that adjustment may be necessary in situations where the employee relapses, which is “often a characteristic of substance dependence.” The employer’s duty of accommodation for substance dependence will only come to an end where an employer reaches the point of undue hardship, which is assessed on the facts of the particular case.
The Impaired at Work guide concludes with a synopsis of key considerations regarding drug and alcohol testing in the workplace. For employees in safety-sensitive positions, the possibility of conducting this test depends on the nature and context of the employment. However, the Canadian Human Rights Commission emphasizes that testing an employee “who does not occupy a safety-sensitive position is rarely permissible.”
While this guide is drafted for the benefit of federally-regulated employers, the five step process to fulfilling the duty to accommodate is applicable to any British Columbia employers faced with an employee with a substance addiction. Addiction to alcohol or drugs is recognized by the BC Human Rights Tribunal as a disability under the BC Human Rights Code, and is a prohibited ground of discrimination regarding employment. However, provincially-regulated employers should be aware that the jurisdictions across Canada differ in the permissible scope of drug and alcohol testing in the workplace, and in the procedural and substantive requirements an employer must take to satisfy their duty to accommodate up to the point of undue hardship.
As a cautionary note, the Impaired at Work guide does not have the force of law – it is merely a guide. Also, it is written from a human rights perspective, without consideration of the potential employee, business, and operational issues that may exist. The guide does not, and cannot, take into account all of the circumstances that an employer should consider in dealing with a specific situation. While the guide provides a useful overview in general terms, caution should be used when applying the guide to a specific situation without obtaining appropriate legal advice. The duty to accommodate, especially where addiction is involved, often creates the most challenging and risk-fraught employment situations, and employers must be able to show that they have both correctly followed the accommodation process and arrived at the correct result, all while balancing practical and operational considerations and parameters.
McCarthy Tétrault LLP
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From experience, gathering medical information can be difficult for employers. It requires consent of the employee, which (often because of circumstances of substance use/abuse) is often no forthcoming. Policies that require employees to submit (yes, that is the word I’ve seen used) to a physical examination with an employer chosen physician are possible but still tough to enforce.