Last week, we discussed the employer’s duty to accommodate employees with disabilities, which includes drug and alcohol dependence. Employers have a duty to accommodate employees up to the point of undue hardship. This is a high bar! So employers need to give a lot of thought to what they can possibly do before deciding it’s not possible to accommodate an employee. Employers will normally have at least a few options for employee accommodations, ranging from leaves to addictions support programs, which we will discuss below. We will also cover drug and alcohol testing in this blog.
Very often, the accommodation that an employee suffering from an addiction requires is a leave. Many medical notes recommend this option; should an employer encounter such a note, the employer can put the employee on an unpaid leave with continuation of benefits. The fact that the leave is unpaid can sometimes incentivize employees to recover and return to work sooner rather than later. The timeline of these types of leaves can be very long, unless the doctor makes clear that the employee will never be able to do the job again. In these scenarios, the employer may have to accommodate the employee to work in another position within the company.
Employees returning from leaves are often accommodated with graduated returns to work or other changes to their normal job that take into account their disability-related needs. Employers are entitled to documentation from the employee’s health care providers to determine what the employee’s accommodation needs might be. Employees are not entitled to the leave of their choice, but employers should work with them to ensure that accommodations are reasonable.
If the employee is suffering from a permanent and total disability, then the employee may have frustrated their contract. Upon frustration for reasons of disability, the employee is entitled to termination and severance pay under the Employment Standards Act, 2000 (section 2(3) of O. Reg. 288/01). Frustration of one’s contract typically takes years to reach and is unlikely when it comes solely to drug addictions.
To support employees in their recovery, employers should ensure that the employee is aware of all the supports that may be available to them; for example, employers can recommend the employee look into employee assistance programs (EAPs). Employers can also suggest comparable non-employer-related programs for those employees who have concerns over confidentiality. An employer may also consider creating an addiction accommodation policy to help address drug and alcohol dependence in the workplace and provide employees with an initial place to turn to for more information.
Drug & Alcohol Testing Generally
Drug and alcohol testing might be appropriate for employees returning to work after being off for a substance abuse problem, or in other cases where substance abuse is known. Employers that administer drug and alcohol tests to employees must show that testing is a bona fide occupational requirement (where a limitation on individual rights may be reasonable and justifiable if the employer can show that an otherwise discriminatory requirement of a job is essential for performing that job). Typically this will only be the case where jobs are safety-sensitive.
As an employer, it’s important to keep in mind that there are key differences between alcohol testing and drug testing. Alcohol testing is conducted by way of breathalyzer, which measures the alcohol level in one’s system at the time of testing, and provides an immediate result regarding whether someone is impaired by alcohol. Drug testing, on the other hand, is much more invasive and can range from a cheek swab to a blood sample. Further, the results of drug testing are not immediate (they can take several hours at least), require confirmation, and do not necessarily prove impairment on the job, as positive tests show only whether there are traces of the drug in one’s system.
Before conducting any drug or alcohol test on an employee, you should consult a lawyer. If you have questions about substance dependence in the workplace, get in touch for a consultation!
Stay tuned for Part 4 coming up next week, the final part in our series, where we discuss drug and alcohol testing of a specific employee, random drug and alcohol testing, alternatives, and related human rights issues!