Last week, we looked at the issue of addiction in the workplace using a recent decision of the Supreme Court of Canada to illustrate the employer’s duty to accommodate and the employee’s duty to disclose addiction issues. In this week’s post, we will examine the duty to accommodate more closely, as well as the rules around drug testing in the workplace.
The Duty to Accommodate Addiction: An Obligation in Five Steps
An employer’s duty to accommodate consists of five steps:
Observing the Signs of Addiction
An employer will generally begin to suspect an addiction issue when they notice changes in an employee’s behaviour at work. The employee is absent or late more often, have a personality shift, have the appearance of impairment on the job or they may fail a drug or alcohol test. However, despite the evidence, an employer is not permitted to presume or diagnose an employee’s issue. Instead, they should have a reasonable discussion with the employee, as set out in step 2. However, if the employee has had an accident or their behaviour puts the safety of the workplace into question, an employee may need to be suspended from their duties while the rest of the steps are sorted out.
Discussing the Issue
Once an employer has noticed significant changes in the employee and they suspect a possible addiction issue or they receive a positive drug test result, they then have a duty to inquire. However as mentioned above, an employer is prohibited from diagnosing the issue and must instead keep their observations neutral and ask questions. Any inquiry should be respectful, collaborative and timely and should focus on asking general questions and offering non-specific accommodation, within reason. If the place of employment offers an Employee Assistance Program, the employer should mention that as well.
Gathering and Reviewing Medical Information
If the employee discloses a disability and requests accommodation, the employer is entitled to request information from a medical professional outlining the specific accommodation needs. In turn, the employer should provide information to the medical professional including the employee’s schedule, a description of the employee’s function and responsibilities and any other relevant information. In turn, the doctor should provide suggestions for accommodation, or note that the employee is not currently suited to perform in their role and needs to move to a different role or needs time off for recovery. Note that the employer is not entitled to any information not related to the employee’s ability to perform their job, including the employee’s diagnosis.
An employer is obligated to accommodate an employee to the point of undue hardship for any disability, including addiction issues. The goal of any accommodation plan should be to allow the employee to continue working, or to return to work as soon as possible following the necessary time away for recovery or treatment. When designing an accommodation plan, the employee is also obligated to participate. If they do not take responsibility for their behaviour or reject reasonable accommodations, this process may not be possible. Employers should note that relapse is a common symptom of addiction, and as such, they may be required to go through this process more than once with the same employee.
Follow-Up and Moving Ahead
Regular follow-up meetings should be included in the formal accommodation arrangements, to check in with the employee and make adjustments to the plan if and when necessary. Employers may also request periodic updates from the employee’s doctor in order to confirm that the employee continues to be able to perform in their role.
Drug Testing in the Workplace
As a preventative measure, or in order to identify employees who may need assistance, some employers may consider the use of drug testing. Employers should note that across Canada, this tactic will generally only be permitted in very narrow circumstances. For example, if a role is safety-sensitive, such as an environment where employees work with dangerous equipment, drug testing may be allowed. In a workplace where safety is not a primary concern, such as an office, drug testing will most likely be considered an infringement on employee privacy and will not be permitted. Even where safety is a concern, other factors may be needed to establish a case for random drug or alcohol testing, such as the fact that there is minimal supervision for the role, or that there is an existing problem in the workplace with addiction issues.
Employee’s Duty to Disclose
On the other side of the issue, for an employee to have a case for accommodation for addictive behaviour, the employee’s first step is to admit the disability. Should they refuse to do so, the case is much more difficult. Absent this step, there will be no accommodation required. Employees are not obligated to share their entire history and medical diagnosis with their employer, but in order to take advantage of the employer’s duty to accommodate, they must be upfront about how their ability to work has been impacted.
Get Advice and Know Your Rights
This is a complex issue, legally and also on a human level. Both sides to the issue need clear and concrete advice. For advice on this issue, and indeed, on and all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins LLP. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416-364-9599 to schedule a consultation.
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