Many employers will at some point encounter drug and alcohol issues in the workplace. Under the Canadian Human Rights Act, substance dependence is considered a disability. An addiction to drugs or alcohol also constitutes a disability within the meaning of the Ontario Human Rights Code.
An addiction should only become an issue for the employer, however, if it affects the employee’s work performance. Employers have a right to expect a certain level of performance and competency from their employees, but employees have a right to be accommodated for their disabilities to the point of undue hardship.
The pandemic has given rise to many workplace and personal challenges, among them a rise in drug and alcohol addictions. COVID-19 has also created additional barriers for those with addictions in terms of the type, availability, and access to healthcare and social services.
Detection & Remote Work
The three main avenues through which employers are generally made aware of an employee’s potential substance dependence issue are: disclosure by the employee, observation of signs of substance dependence, or a positive drug or alcohol test.
In pre-pandemic times, employers and colleagues had the ability to check for signs of drug or alcohol intoxication. With the migration of large swaths of workers to the home as a result of COVID-19, and likelihood that the working-from-home arrangement is here to stay for many, the employer’s ability to detect such signs is marred – the employer cannot observe the employee’s unsteady gait as she walks to the bathroom, see her bloodshot eyes over the phone, or detect the odour of alcohol through the video screen.
For employees working remotely, persistent absenteeism and/or tardiness from virtual meetings, slurred speech, or extended periods of poor productivity can, in some instances, be telltale signs of substance dependence. Employers should consider scheduling regular video meetings with employees, either individually or as a collective, and check in with employees periodically to spot any mental health issues and ensure employees feel supported.
Duty to Inquire
If an employer believes that an employee may have a substance dependence issue, both the employee and the employer (in union environments, the union and/or employee representative as well), have responsibilities to address the issue in a timely, synergistic, and respectful manner. Given the generally stigmatizing nature of addictions, many employees may be reluctant to disclose or even admit their conditions. Regardless, an employer has a duty to initiate a confidential and non-judgmental discussion with an employee about a need for accommodation for a disability when the employer reasonably believes there may be a relationship between a disability and job performance. Though this may be an awkward conversation to start, this duty to inquire is set out by both the Ontario Human Rights Commission and the Canadian Human Rights Commission.
This is Part 1 of our 4-part series on substance dependence in the workplace. Stay tuned for Part 2 next week, when we’ll discuss the duty to accommodate, as well as provide some sample questions for employers to ask employees when gathering information related to a substance dependence disability.
If you have questions about substance dependence in the workplace, get in touch for a consultation!