Impaired at Work – A guide to accommodating substance dependence

Introduction

The purpose of this guide is to help federally-regulated employers address substance dependence in the workplace in a way that is in harmony with human rights legislation. This guide outlines the rights and responsibilities of the employee, job applicants, the employer, unions and/or employee representatives.

The Canadian Human Rights Act defines dependence on drugs or alcohol (substance dependence) as a disability. This means that when an employee is diagnosed with substance dependence, they have a right to be accommodated by their employer—just as anyone else with a disability.

As with all other disabilities, the employee, the employer, and union and/or employee representatives must all cooperate to find reasonable accommodation for the employee. This guide helps employers respond to possible substance dependence in the workplace—whether it is through:

• disclosure by the employee,
• observation of signs of substance dependence,
• or a positive drug or alcohol test.

The guide also takes employers through the process of accommodating an employee with substance dependence.

It is important for employers to remember that fear of stigma and discrimination often prevents people with substance dependence from addressing the problem and seeking treatment.

Therefore, while it is often necessary to accommodate people's needs on an individual basis, organizations should foster a workplace culture of respect and inclusion by building accommodation into the way they do business

The duty to accommodate

Employers have an obligation to take steps to adjust rules, policies or practices that have a negative impact on individuals—or groups of individuals—based on prohibited grounds of discrimination in the Canadian Human Rights Act. This is called the duty to accommodate.

The duty to accommodate means that sometimes it is necessary to treat someone differently in order to prevent discrimination. Employers have a duty to accommodate an employee's needs when they are based on any of the grounds listed in the Canadian Human Rights Act.

If an employer believes that an employee may be substance-dependent, everyone involved—the employee, the employer, and the union and/or employee representative—has a responsibility to approach the issue in a respectful, collaborative and timely manner.

Five steps to accommodating substance dependence

Step 1 Recognize the signs

Observe

An employer may observe changes in an employee's attendance, performance or behaviour, such as:

• personality changes or erratic behaviour (e.g. increased interpersonal conflicts; overreaction to criticism).
• appearance of impairment at work (e.g. odor of alcohol or drugs, glassy or red eyes, unsteady gait, slurring, poor coordination).
• working in an unsafe manner or involvement in an accident.
• failing a drug or alcohol test.
• consistent lateness, absenteeism, or reduced productivity or quality of work.

Don't assume

There could be many reasons that explain these situations, such as:

• another disability or temporary medical conditions.
• conflict at work.
• job dissatisfaction or low morale.
• the stress in balancing work and caregiving obligations.
• personal problems unrelated to work.

Employers should keep in mind that the employee may just be having a bad week or month. However, in some cases, the observed behaviour could be the consequence of substance dependence.

Step 2 Talk about it

Generally, it is the employee's responsibility to disclose their accommodation needs. However, people with substance dependence may not recognize or admit that they have a disability. As well, stigma and fear of losing their job can make them reluctant to admit there is a problem.

When an employer observes changes in an employee's attendance, performance or behaviour that may indicate possible substance dependence, it triggers the employer's legal obligation to initiate a discussion with the employee about a need for accommodation of a disability. This is called the duty to inquire.

In workplaces with safety-sensitive positions where there is drug and alcohol testing, the employer's duty to inquire is also triggered upon receipt of a positive test result.

Because denial is often a characteristic of substance dependence, the employer may need to have more than one conversation with the employee.

Having the conversation

During the various conversations with the employee, the employer should not try to diagnose substance dependence or recommend treatment.

Instead, in order to fulfil their duty to inquire, the employer should:

• be respectful, compassionate and non-judgemental.
• understand that the employee might be feeling pressured, guilty, or anxious.
• ensure the conversation is confidential.
• identify concerns about an employee's performance, behaviour or positive test results.
• explain the employer's duty to accommodate all disabilities, including substance dependence, and refer
• the employee to any internal accommodation policies.
• only ask questions relevant to the employee's possible need for accommodation, such as whether the employee has been assessed by a medical professional.
• let the employee know about other workplace support, if available. (e.g. an Employment Assistance Program.)
• allow the employee to involve their union or employee representative in discussions.

If the employee does not disclose a disability, such as a substance dependence, the employer should clearly outline the consequences of the employee's behaviour and deal with the attendance, performance or other behaviour issues according to workplace policies. However, if the employee later provides a disability-related explanation, the employer must reconsider their approach. This includes reconsideration of the appropriateness of any disciplinary or other action already taken.

Step 3 Gather and consider the relevant medical information

In order to appropriately accommodate an employee, the employer requires information from a medical professional.

Employers need to know:

• whether the employee has a disability; and if so
• what accommodations the employee needs.

These are medical questions and they need to be answered by a medical professional—the employee's family doctor or specialist. The medical information will allow the employer to make an informed decision about reasonable accommodation options.

Employers need to keep in mind that requesting medical information for the accommodation process requires the balancing of two competing rights: the employer's right to manage the workplace and the employee's right to privacy. When requesting medical information, employers must use the least intrusive means possible and respect the employee's privacy rights. Requests must be limited to information related to the employee's essential duties and their accommodation needs.

The employer is rarely entitled to the specific diagnosis. They are not entitled to the content of the diagnosis, or details of the treatment plan.

Information the employer should provide

The employer should provide the medical professional with the following information:

• Description of the employee's job function/responsibilities.
• The employee's work schedule.
• Whether the employee is in a safety-sensitive position.
• Any other relevant information that is particular to the workplace.

Information the employer should request

The employer should ask the following questions:

• Does the employee have a disability that requires accommodation?
• Are there any restrictions or limitations to the performance of the job?
• Has a treatment plan been developed? If so, how might this affect the employee's behaviour, attendance, performance, schedule?
• What is the employee's prognosis?
• If the employee is off work, are there specific recommendations for accommodation that will facilitate a safe and successful return to work?
• For an employee in a safety sensitive position, is the employee medically fit to safely perform their job? Does the employee require medication where side effects may prevent them from working in their safety sensitive position?

Medical information may come in various formats—from a hand-written note to a formal report.

Based on this information, the employer should be able to determine whether the employee:

• is able to perform the essential duties of their position with appropriate accommodation.
• needs to move to a different position (e.g. a non-safety-sensitive position.)
• needs to be off work pending further medical assessment or treatment, and if so, for how long.

The employee has a duty to cooperate and provide the employer with the relevant medical information. This can include attending appointments as scheduled, and providing complete and accurate information to the medical professional.

The employee has the final say whether their medical information can be released.

A final note: the employer and the employee may also decide that the medical information is not required in order to facilitate the accommodation process.

Step 4 Accommodate

An employee has the right to be accommodated to the point of undue hardship when they have a diagnosed substance dependence. However, this does not give the employee the right to their ideal or preferred accommodation. The accommodation has to work for everyone.

The best way to approach accommodation is on an individual, case-by-case basis. When looking at available options, the employer should work with the employee and their representatives and be as creative, open and as flexible as possible. Doing so will increase the likelihood that the parties will find a solution that meets the needs of everyone involved.

Relapse is often a symptom of substance dependence. Accommodating an employee with this disability may mean accommodating them through more than one relapse.

Throughout the accommodation process, the goal should be to keep the employee at work (where appropriate) or support the employee in returning to work as soon as possible. The employer is in the best position to know what is possible within the context of their particular work environment, and should remain open-minded to options that will facilitate the maintenance of, or return to, active employment.

If an employee is not willing to participate in the process or take responsibility for their own workplace behaviour, or rejects a reasonable accommodation solution, accommodation may not be possible.

Developing an accommodation plan

The primary responsibility for developing the accommodation plan rests with the employer. Once the employee's accommodation requirements are established, the employer works in consultation with the employee to develop the accommodation plan. The employee may wish to involve their union or employee representative in these discussions.

The accommodation plan should:

• Be put in writing and signed by all parties.
• Identify the specific accommodation measures or solutions that have been agreed to based upon the employee's medical information (e.g. timelines/dates, work schedule, duties and restrictions/limitations.)
• Designate to whom the employee may go with concerns or questions about the accommodation plan. Identify what changes in the employee's behaviour or performance will be understood as “significant” and therefore requiring updated medical information.
• Be flexible and subject to change based on the employee's needs and updated medical information. Allow for whatever treatment the employee may require, whether urgent or ongoing. The employee may require time away from work to pursue treatment.
• Take into consideration that an employee who is substance-dependent may also have another physical or mental disability that requires accommodation

The accommodation plan may include a return to work agreement that specifies the conditions the employee agrees to meet when returning to work.

Implementing an accommodation plan

The process for implementing the plan should be spelled out clearly within the accommodation plan itself so everyone understands their roles and responsibilities.

It is important for the employer, the employee, and their union or employee representative to communicate clearly during the implementation of the accommodation plan. Any issues or setbacks in the process should be flagged as soon as possible.

The details of the accommodation plan, including any medical information, should only be shared with those who need to know.

Return to work agreement

To ensure the successful implementation of the accommodation plan, the employer and employee may need to meet to develop and sign a return to work agreement.

A return to work agreement outlines the expectations for an employee's conduct when returning to work and the agreed-upon conditions that the employee must meet. These conditions may include expectations about attendance, performance, safety, behaviour and compliance with an existing workplace drug and alcohol policy.

The return to work agreement should not include treatment expectations or any other details of an employee's confidential treatment plan.

In the context of safety-sensitive positions, the return to work agreement may include some form of medical monitoring, such as drug or alcohol testing.

Some employers make use of tools such as relapse prevention agreements or last chance agreements. Employers should be aware that the use of agreements like these does not replace the obligation to accommodate an employee to the point of undue hardship under human rights legislation.

Step 5 Follow-up and adjust

The last step in the accommodation process is ongoing. Employers should plan on following up on a regular basis with the employee and making regular adjustments to the accommodation plan as required.

It is not always possible to foresee how the accommodation process will unfold. Flexibility and communication are necessary to ensure the employee's successful accommodation.

It is useful to build follow-up meetings right into the accommodation arrangement. The purpose and scope of the meetings should be clearly explained to all parties.

As previously mentioned, relapse is often a characteristic of substance dependence. An employee may start using substances again after several tries at rehabilitation or even after years of sobriety. Therefore the accommodation plan may need to be adjusted to address the employee's evolving situation.

An employer may also request periodic updates from the medical professional to confirm that the employee is still able to continue in their current position. An employer should communicate changes to the employee's

accommodation arrangements on a need-to-know basis to other managers, supervisors, staff, as well as union or employee representatives.

How far does accommodation for substance dependence have to go?

The duty to accommodate ends when an employer reaches the point of undue hardship. Under the Canadian Human Rights Act, an employer can only claim undue hardship when adjustments to a policy, practice, by-law or physical space would cost too much or create health or safety risks.

There is no standard formula or precise legal definition of undue hardship. Each situation should be viewed as unique and assessed individually. The point of undue hardship varies for each employer and for each accommodation situation. The larger the organization, the more likely it is to have a range of options to accommodate an employee with substance dependence.

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.

To satisfy a claim of undue hardship on the basis of cost, the financial impact of the accommodation would typically have be so great that it would either change the essential nature of the organization's operation, or it would substantially impact the employer's financial viability.

Employers should be both innovative and practical when considering accommodation options. If individual needs for accommodation can be met without imposing undue hardship on the employer, a refusal to accommodate is not justified.

Safety is often raised as the basis for undue hardship. Employers must first consider whose safety is at risk and the magnitude of the risk. Employers must also consider whether an employee can be moved to a non-safety sensitive position.

An employee cannot hold out for a preferred accommodation if a reasonable accommodation is offered by the employer. Should an employee reject a reasonable solution that provides for accommodation, the employer will be found to have met their duty to accommodate. The employer's duty to accommodate ends when the employee is no longer able to fulfil the basic obligations associated with the employment relationship for the foreseeable future.

Once undue hardship is demonstrated, the employer is no longer required to accommodate the employee.

Key considerations regarding drug and alcohol testing

Many federally-regulated workplaces have safety-sensitive positions, leading some employers to have concerns regarding employee impairment by drugs or alcohol while at work. These employers may decide to conduct drug or alcohol testing as an additional precautionary measure.

In deciding whether and how to conduct drug or alcohol testing in the workplace, an employer must consider a variety of factors including human rights law, safety, privacy, labour standards, the provisions of any applicable collective agreements, regulatory requirements, the level of supervision available in the workplace, among other considerations.

Whether or not testing is permissible will depend on the nature and context of the employment. The same will be true in deciding what action is appropriate in the event of a positive test result. Employers should note that conducting testing on a person who does not occupy a safety-sensitive position is rarely permissible.

Employers should also remember that conducting testing is a form of medical examination, and it constitutes a significant invasion of privacy. It may also be discriminatory within the meaning of the Canadian Human Rights Act.

A positive result on a drug or alcohol test may be treated as an indicator of potentially greater risk, but should not be taken as concrete evidence of a substance dependence or that the person has or will, in fact, come to work impaired by drugs or alcohol.

When an employer receives an employee's positive test result, they have an obligation to initiate a conversation about possible substance dependence. This will help determine what workplace consequences, if any, are appropriate, and will provide an opportunity to discuss what support, assistance and accommodation the employee may need. Further medical assessment may be necessary or advisable in such circumstances.

Taking disciplinary action without initiating a conversation about substance dependence may run contrary to the provisions of the Canadian Human Rights Act.

Frequently asked questions for employers

First, a brief word on terminology

• In Canada, people use different terms to describe struggles with alcohol or drugs. The terms substance dependence, addiction, or substance use disorder are often used interchangeably.
• The Canadian Human Rights Commission (Commission) uses the term “substance dependence” to refer to previous or existing addiction or dependence on alcohol or drugs.
• Substance dependence is considered a disability under the Canadian Human Rights Act.

Drug and alcohol testing

1. What's the difference between drug testing and alcohol testing?

There are important differences and important similarities when testing for drugs and testing for alcohol.

Alcohol testing is conducted using a breathalyzer. It will immediately tell you whether or not an employee is impaired by measuring the level of alcohol in the person's system at the time of the test. The science used for breathalyzers is widely accepted. In addition, a breathalyzer test is easy to administer and not invasive.

Drug testing is different. For one, it is far more invasive than alcohol testing as it requires a cheek swab, or a urine or blood sample. Second, it takes several hours at minimum to get an initial result, which then must be confirmed. Furthermore, unlike a breathalyzer, a positive drug test result does not prove that someone is impaired on the job. A positive drug test can prove that there are traces of the drug in an employee's system, but it cannot prove that the employee is impaired at the time of the test. This is why you must not draw conclusions as to whether an employee is impaired based only on a positive drug test.

Despite these important differences, alcohol testing and drug testing share two common factors:

• Both types of testing are only permissible in situations involving employees in safety-sensitive positions.
• Both types of testing are considered medical testing, and because of this, they automatically raise privacy and human rights issues.

2. Why is it such a big deal if I decide to conduct drug or alcohol testing on employees?

Any form of drug or alcohol testing is medical testing. Whether you are asking an employee to give a urine sample or a cheek swab, or whether you are asking them take a breathalyzer test, you are conducting a medical test. This means that you are required to consider the employee's privacy rights and human rights. Depending on the context, you may also have other considerations including collective agreement provisions and regulatory requirements.You must be able to establish that the testing is a bona fide occupational requirement.

This is why it is important that you first talk to a lawyer before conducting any drug or alcohol testing on an employee. You may want to consider other effective — and less intrusive — ways to monitor for impairment, such as direct supervision or face-to-face interaction.

3.When am I allowed to test an individual employee for drugs or alcohol?

You can only test an individual employee for drugs or alcohol if:

They work in a safety-sensitive position and:

• There is reasonable cause to suspect the employee may be impaired (e.g. the employee has been in a near accident, or has been seen consuming alcohol at the workplace, is glassy eyed, smells of cannabis, etc.); or
• They were involved in an accident or significant incident whose cause was not clearly due to mechanical or
• structural failure or environmental factors; or
• It is part of a return to work agreement for an employee with a substance dependence disability who occupied a safety-sensitive position.

4. Am I allowed to conduct random testing of my employees?

Proceed with caution! The laws around random testing are evolving. Currently, Canada's Courts have determined that random testing of employees is only permissible in safety-sensitive positions when there is a clearly demonstrated and widespread problem in the workplace of alcohol or drug abuse that cannot be addressed by less intrusive means. In these circumstances, an employer must also show that the improvement to workplace safety from random testing is sufficient to justify the intrusion upon employees' privacy.

5. How else can I find out if an employee is impaired on the job?

The Canadian Human Rights Commission recommends that you, wherever possible, rely on observation, supervision and frequent face-to-face conversations as the more effective way to recognize when an employee is impaired.

The better you know your employees, the more easily you 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 and most effective.

6. What if an employee's drug test comes back positive? How can I ensure an employee's drug use is not a risk to the workplace or to public safety?

If an employee's drug test comes back positive , you should handle the situation with the following approach:

• First: remember that drug or alcohol testing is only permissible in safety- sensitive positions (see Question 3).
• Second: remember that a positive drug test, unlike a breathalyzer, does not automatically indicate that a person is impaired. It simply proves that the drug is in their system.
• Third: bear in mind that under the Canadian Human Rights Act, if your employee tests positive for any drug or alcohol you have a duty to inquire about whether they have an addiction. If they do, and if they can provide supporting medical information, you then have a duty to accommodate them. This Guide provides more information on your duty to inquire and it also gives suggestions about how to approach these sensitive conversations. We say “conversations” because you may need to have more than one since denial is often a characteristic of substance dependence.

Finally, you should only be concerned with how the use of drugs or alcohol is impacting an employee's performance, their workplace behaviour, or the safety of the workplace. If an employee's behaviour during their free time outside of work does not affect the workplace, you are not entitled to ask about it, and the employee is not obligated to discuss it.

7. What is the Commission's official recommendation on the use of drug testing in the workplace?

The Canadian Human Rights Commission recommends that: before considering workplace drug or alcohol testing, an employer should first talk to a lawyer and also consider effective but less intrusive methods such as direct supervision and face-to-face interaction with their employees. An employer should also keep in mind that drug or alcohol testing of an employee who does not occupy a safety-sensitive position is not allowed.

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

The Commission's 2009 policy is now out of date and not applicable. It has been removed from our website. For our latest policy and guidance, please refer to this publication, Impaired at Work: a guide to accommodating substance dependence.

Your duty to accommodate substance dependence‌

9. As an employer, if I suspect that my employee's drinking or drug use is impacting their work, what are my rights and what are my obligations?

As an employer, you have a right to expect a certain level of performance, punctuality and competency from your employees. You also have a right to develop appropriate workplace standards that employees must follow. These can include policies on substance use in the workplace or during hours of work. Employers with employees in safety-sensitive positions, in certain regulated industries, may also be able to have policies for off-duty consumption of drugs or alcohol (e.g. pilots).

At the same time, under the Canadian Human Rights Act you have an obligation or duty to accommodate an employee who has a specific need based upon their disability to enable them to perform their work. In addition, under the Canadian Human Rights Act, substance dependence is a recognized disability. Your duty to accommodate an employee's substance dependence begins with your duty to inquire. (See Question #6)

That said, if an employee is not willing to participate in the process or take responsibility for their own workplace behaviour, or rejects a reasonable accommodation solution, accommodation may not be possible, and disciplinary measures might need to be considered.

10. How do I know if my employee has a disability related to substance dependence?

It is not your job to diagnose an employee or to determine if an employee has a disability related to substance dependence. That is the job of a medical professional.

An employee with substance dependence may never be impaired while on the job. There may be other signs, such as patterned absences, poor or declining work performance, and behavioural issues that could point to a possible disability.

This is why before you take disciplinary measures, it is your responsibility to have a discussion with the employee about their conduct and to ask them about the possibility that they may need accommodation for a disability.

11. How far does my accommodation of any employee's substance dependence have to go? Where can I draw the line?

As an employer, your duty to accommodate ends when you reach the point of undue hardship—when the accommodation measures would be prohibitively expensive or would create unreasonable 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. You must provide evidence as to the nature and extent of the hardship. You should also be able to show that all reasonable means of accommodation, short of undue hardship, have been exhausted.

Cannabis in the Workplace‌

12. What if an employee tests positive for cannabis? How can I ensure an employee's use of cannabis is not a risk to the workplace or to public safety?

If an employee tests positive for cannabis while at work, an employer should handle the situation with the same approach they would for any other substance:

• First: remember that drug or alcohol testing is only permissible in safety- sensitive positions. (See Question 3).
• Second: remember that a positive drug test, unlike a breathalyzer, does not automatically indicate that a person is impaired. It simply proves that the drug is in their system.
• Third: bear in mind that under the Canadian Human Rights Act, if your employee tests positive for cannabis you have duty to inquire about whether they have an addiction or have been prescribed medical cannabis. If so, and if they can provide supporting medical information, you have a duty to accommodate them.

Finally, you should only be concerned with how the use of drugs or alcohol is impacting an employee's performance, their workplace behaviour, or the safety of the workplace. If an employee's behaviour during their free time outside of work does not affect the workplace, an employer is not entitled to ask about it, and the employee is not obligated to discuss it.

13. With the legalization of cannabis, if an employee is open about the fact that every now and then they might ingest some cannabis during work-hours, do I have any say about it as an employer?

Where do I draw the line?

First, it is important for employees and employers to both understand that the legalization of cannabis does NOT give employees the right to be impaired at work.

As an employer, you have a right to develop appropriate workplace standards that you expect your employees to follow. These can include policies on substance use or impairment during hours of work. Employers with employees in safety-sensitive positions in certain regulated industries may be able to also have policies for off-duty consumption of drugs or alcohol.

That said, you should only be concerned with how the use of drugs or alcohol is impacting an employee's performance, their workplace behaviour, or the safety of the workplace. If an employee's behaviour during their free time outside of work does not affect the workplace, you are not entitled to ask about it, and the employee is not obligated to discuss it.

Finally, it is very important to always remember that as an employer, that under the Canadian Human Rights Act, if your employee's use of cannabis is impacting their work, you have duty to inquire about whether they have an addiction or have been prescribed medical cannabis. If so, and if they can provide supporting medical information, you have a duty to accommodate them.

14. When it comes to substance dependence, does my duty to accommodate change if the substance in question is cannabis?

Your responsibilities and your duty to accommodate remain the same regardless of whether the substance at issue is cannabis, or any other drug or alcohol.

Under the Canadian Human Rights Act, if your employee's use of cannabis is impacting their performance at work, you have the same duty to inquire, as with any other substance. (See Question 6).

If an employee is prescribed medical cannabis, you must accommodate them in the same way you would any other disability. The same human rights principles apply.

In the situation of medical cannabis, the employee must provide you with medical information that will allow you to determine whether they:

• can perform the essential duties of their position, with the appropriate accommodation; or
• need to be assigned a different position (e.g. a non-safety-sensitive position.)