This blog post addresses five issues related to drinking in the workplace.
- Can an employer test an employee for alcohol consumption? The Ontario Human Rights Commission (OHRC) has published a Policy on Drug and Alcohol testing which states, in part:
It is the OHRC’s view that alcohol and drug testing is prima facie discriminatory and can only be used in limited circumstances. The primary reason for conducting such testing should be to measure impairment. Even testing that measures impairment can be justified only if it is demonstrably connected to the performance of the job; for example, if an employee occupies a safety-sensitive position, or after significant accidents or “near-misses,” or if there is reasonable cause to believe that a person is abusing alcohol or drugs and only then as part of a larger assessment of drug and alcohol abuse. It is the OHRC’s view that by focusing on testing that actually measures impairment, especially in jobs that are safety sensitive, an appropriate balance can be struck between human rights and safety requirements, both for employees and for the public.
We recommend against alcohol testing until after an employer has received legal advice.
- Can an employer impose a term of employment that prevents an employee from drinking at work or being impaired at work? If a pilot, or a doctor/nurse, or a train conductor drinks on the job, his impairment can endanger the lives of others. For this kind of safety-sensitive position the employer may want to include a term of employment which prohibits drinking more than say 8 hours before an employee starts work, or a specific penalty clause which states that drinking or being impaired on the job is just cause for termination. These terms of employment send a strong message to the employee that drinking or being impaired on the job will not be tolerated.
- What kind of liability can an employer incur if an employee drinks and drives? If an employee drives as part of her job then it is very important that the employee not drink and drive because the employer is often responsible for the employee’s actions. If the employee gets in a car accident then the employer could be liable for WSIB costs including costs that are incurred by another employer if the accident involves a person who was working for another employer at the time of the accident. For employees who drive on the job, an employer can implement a policy which states an employee cannot drink during working hours including lunches with clients if the employee is driving during working hours.
- What kinds of legal problems can occur if an employee drinks too much at a Company social event? It is not unusual for employees to drink at Company social events like Christmas parties. However, it is imperative that employees do not drink and drive; otherwise, the employer could be held responsible for any damages the employee causes while impaired. It is also important that alcohol intake is monitored because excessive consumption can lead to sexual harassment and other misconduct.
- Are there special considerations that apply to alcoholics? Under the Ontario Human Rights Code, alcoholism is considered a disability and must be accommodated.
Obviously, an employer can only accommodate an employee’s disability if the employee discloses a disability. However, many alcoholics will not admit to being an alcoholic. Often it is not until after a person is fired that an alcoholic hits bottom, admits his disability and seeks help.
If you think an employee has a drinking problem then we recommend that you obtain legal advice before disciplining (including termination) an employee.
MacLeod Law Firm
Human Resources PolicyPro
Employers can implement a policy which states an employee cannot drink during working hours including lunches with clients if the employee is driving during working hours. The Human Resources PolicyPro contains a policy about alcohol and drinking at work, and over 80 other policies to help employers stay in compliance.
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