Impaired at Work: a guide to accommodating substance dependence - Frequently Asked Questions

1. Why did the Commission develop a guide on impairment in the workplace and accommodating substance dependence?

  • We knew there was a need for updated federal human rights guidance on substance dependence in the workplace.
  • At the same time, we wanted to help build awareness among employers, employees and all Canadians that dependence on alcohol or drugs is considered a disability under the Canadian Human Rights Act.
  • We wanted Canadian employers to know what to do if they believe an employee might be impaired at work, and more importantly, how to go about accommodating substance dependence in the workplace.

2. As an employer, if I think my employee is drinking or using drugs during working hours, how do I know if they have a disability related to substance dependence and need to be accommodated? 

  • It is not an employer’s job to diagnose an employee or know if they have a disability related to substance dependence—this is the job of a medical professional.
  • The employer’s job is to observe changes in an employee’s attendance, performance or behavior that may indicate substance dependence, and at that point initiate a discussion with the employee about whether there is a need for accommodation. 
  • Because denial is often a characteristic of substance dependence, the employer may need to have more than one conversation with the employee about the possible need for accommodation.
  • At the same time, if the employee refuses to disclose a disability, such as substance dependence, the employer should clearly outline the consequences of the employee’s behavior and deal with the attendance, performance or other behavioural issues according to workplace policies.

3. How far does accommodation for substance dependence have to go? 

  • An employer’s duty to accommodate ends when they reach the point of undue hardship—when the accommodation measures would cost too much or create health or safety risks.
  • It’s important to understand that there is no standard formula or precise legal definition of undue hardship. Each situation has to be treated as unique and assessed individually. 
  • A claim of undue hardship must be supported with facts. It is not enough to claim undue hardship based on an assumption or opinion, or because there is some cost. Employers must provide evidence as to the nature and extent of the hardship. They should also be able to show that all reasonable means of accommodation have been exhausted.

4. Do I have to accommodate someone who uses medical marijuana during work hours?

  • If an employee has a disability and is prescribed medical marijuana, an employer must accommodate this in the same way they would any other medical prescription. The same human rights principles apply.
  • The employee must provide medical information that will allow the employer to determine whether the employee:
    • is still able to perform the essential duties of their position, with the appropriate accommodation;
    • needs to move to a different position (e.g. a non-safety-sensitive position.)

5. What is the Commission’s position on whether drug screening violates human rights, and when drug testing may be considered permissible?

  • It is the position of the Canadian Human Rights Commission that before considering workplace drug or alcohol testing, employers should first talk to a lawyer and consider effective and less intrusive methods such as direct supervision and face-to-face interaction with their employees. Also, testing an employee who does not occupy a safety-sensitive position is rarely permissible.
  • Workplace drug testing is a complex issue involving many factors, such as: human rights law; safety; privacy; labour standards; the provisions of collective agreements; regulatory requirements; and the level of supervision available in the workplace.
  • Unlike a breathalyser, a positive drug test result does not necessarily prove that someone is impaired in that moment, and should not be taken as concrete evidence of substance dependence.
  • In addition to seeking legal counsel, employers may wish to review the Ontario Human Rights Commission’s Policy on drug and alcohol testing. Although under a different jurisdiction, the information may still be useful for federal employers

6. How can I ensure an employee’s recreational use of marijuana is not a risk to the workplace or to public safety?

  • If what an employee does during their free time does not affect the workplace, an employee is not obligated to discuss what they do when they’re not at work. 
  • An employer needs to have a valid reason to question whether an employee may be impaired at work, and should not immediately assume that drugs or alcohol use is the cause.  
  • Employers can also develop appropriate workplace standards by which employees must abide. These can include codes of conduct, policies on off duty conduct, as well as conflict of interest, policies on substance use in the workplace, and other standards to protect their legitimate interests including their reputation, productivity, safety, and public reputation. Such standards can provide guidance to both employees and employers in a range of situations.
  • Finally, when it comes to safety-sensitive jobs such as driving transport trucks, handling toxic chemicals or flying airplanes, being impaired at work puts human lives at risk. In these types of “safety sensitive” positions, employers must always use a safety-first approach.

7. What if an employee tests positive for marijuana? Or another drug?

  • A positive result on a drug test does not necessarily indicate a person is impaired. It also should not be taken as concrete evidence of substance dependence. This is why employers should be very cautious about drawing any conclusions about an employee based on a positive test result.
  • If what an employee does during their free time does not affect the workplace, an employee is not obligated to discuss what they do when they’re not at work. 
  • An employer should only ever be concerned with how the use of drugs or alcohol are impacting an employee’s performance, and behaviour or the safety of the workplace. The employer should only become concerned with whatever substances an employee may or may not be using when impairment at the workplace appears to be an issue. 
  • Under the Canadian Human Rights Act, employers have an obligation to inquire further after any positive test, and to accommodate an employee who has a substance dependence to drugs or alcohol—to the point of undue hardship.

8. If drug testing is not reliable, how else can an employer determine if employees in safety-sensitive positions, such as airline pilots, are impaired at work? 

  • It is well known that drug testing (such as urinalysis) is not an effective way to see if someone is impaired at that moment. This makes random drug testing a fairly unreliable means of determining whether someone is impaired on the job.
  • This is why the Commission recommends that employers, wherever possible, rely on observation, supervision and frequent face-to-face conversations as the more effective ways to recognize when an employee is impaired. 
  • The better a manager knows his or her employees, the more easily they can spot “red-flags” or when an employee’s behaviour is out of character. In general, this is the recommended approach as it is less intrusive.
  • At the same time, when it comes to safety-sensitive jobs such as driving transport trucks, handling toxic chemicals or flying airplanes, being impaired at work puts human lives at risk. In these types of “safety sensitive” positions, employers must always use a safety-first approach.

9. Does the Commission’s previous drug and alcohol testing policy (revised in 2009) still apply? Where can I find more human rights guidance?

 

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