Addressing Substance Dependence in the Workplace
By Renee Boyda
What many employers do not know, is that a drug or alcohol dependence is considered a disability according to the Human Rights Act.
As with other disabilities, the employee has a right to be accommodated by their employer. Failing to accommodate an employee with substance dependence can lead to significant legal implications.
Employer Responsibilities
Employers have several responsibilities when addressing substance dependence in the workplace:
- Employers have a duty to accommodate to the point of undue hardship. An accommodation is an adjustment to rules, practices or policies that may have a negative impact based on prohibited grounds for discrimination in the Canadian Human Rights Act. It is sometimes necessary to treat someone differently to prevent discrimination.
- Ensure the safety of its employees. Employers must not allow impaired staff to perform tasks that could endanger themselves or others. Remove an employee from the workplace whose health needs require immediate attention, if the employee is suspected of being impaired and has caused an accident, a near miss, or if their behaviour is putting their own safety or the safety of others at risk. Seek advice from an HR professional if you are put into this situation. There may be other steps that need to be taken or agencies to contact.
- Develop a policy on substance use in the workplace. The policy should outline objectives, prevention measures, support and resources as well as consequences for non-compliance.
- Provide support. Employers can offer support through Employee Assistance Programs (EAPs) and make referrals to local resources.
Employee Responsibilities
Employees are responsible for communicating their accommodation needs, providing sufficient information about their condition to their employer to develop an appropriate accommodation plan, and cooperating in the accommodation process. If the employee is unwilling to participate in the accommodation process, refuses to take responsibility for their workplace behaviour or rejects a reasonable accommodation measure then accommodation may not be possible and disciplinary action may result. Seeking advice from an HR professional would be best in this situation.
Employee Disclosure
When an employee discloses an addiction to the employer, it’s crucial to handle the situation with sensitivity. Acknowledge the disclosure and listen without judgment. It takes a lot of courage for someone to admit they have substance dependence. Assure the employee that their disclosure with be handled confidentially and shared only with those that need to know for support purposes. Refer to your substance abuse policies and provide support options. Gather medical information, using the least intrusive means possible while respecting the employee’s right to privacy.
Employer’s Duty to Inquire
Although it is generally the responsibility of the employee to come forward with accommodation requests, the fear of stigma may prevent the employee from coming forward. If the employee has not disclosed their accommodation needs, but the employer has observed substantial changes in an employee’s attendance, performance or behaviour, then the duty to inquire is triggered. The duty to inquire is a legal obligation of the employer to initiate discussion with the employee about the need for accommodation of a disability. In workplaces where there are safety-sensitive positions and there is drug and alcohol testing, the duty to inquire is also triggered in situations where there is a positive test result.
When approaching an employee about a substance abuse issue, be prepared by following these steps:
- Gather evidence of alarming behaviour and document specific instances.
- Arrange a private meeting with the employee, ensuring confidentiality and take a compassionate, supportive approach to the discussion.
- Provide the employee with a list of support options and encourage them to seek help.
- Keep an open mind. There may be other reasons for behaviour that you have not considered.
Creating an Accommodation Plan
Creating the accommodation plan for substance dependence requires an individualized assessment. Here’s what should be included in the accommodation plan:
- Determine the employee specific accommodation needs through consultation with the employee, their union or representative and relevant medical professionals. Some examples are: granting a leave of absence to attend treatment; work schedule changes to allow the employee to attend medical appointments, attend treatment or meeting with a sponsor; or reassignment to a non-safety sensitive position.
- Create a written accommodation plan signed by all parties detailing agreed upon solutions like work schedule adjustments, job restrictions and necessary treatment time. The accommodation plan must be flexible and evolved based on updated medical information and the employee’s needs.
- Designate the person the employee reports to with any questions or concerns.
- Develop a return-to-work agreement outlining expectations for attendance, performance, and compliance with workplace policies.
- Regularly review and adjust the plan as needed, considering potential relapses or additional disabilities. It is important for the employer to understand that an employee who is dealing with substance dependence may have other mental or physical disabilities that require accommodation.
Drug and Alcohol Testing
Some federally regulated workplaces have safety-sensitive positions and require drug or alcohol testing as a precautionary measure. Drug and alcohol testing is considered a medical examination and a significant invasion of privacy. Conducting drug and alcohol testing on an employee who is not deemed to be in a safety-sensitive position is rarely permitted by law and could land an employer in serious legal trouble. Always seek advice before considering this as an option.
Support Options
Your organization’s Employee Assistance Program (also known as EAP) is a wonderful resource. You can also check the Government of Canada’s “Get help with substance use” page at https://www.canada.ca/en/health-canada/services/substance-use/get-help-with-substance-use.html#a3. There you can find Canada-wide resources, provincial and territorial supports, as well as other mental health supports.
Additionally, employers can create a supportive environment for employees with addiction issues by:
- Providing comprehensive training for employees and managers on substance use disorders, focusing on understanding, prevention, and available support
- Developing clear supportive policies that emphasize confidentiality and non-discrimination.
- Foster an inclusive work environment that encourages open discussions about mental health and substance use without judgment and focused on recovery. Normalizing discussions about mental health and substance dependence can help to reduce stigma.
- Offer access to employee assistance programs and other support services, ensuring employees know how to seek help.
Seek Advice from a Professional
If you need support or advice on matters regarding substance-dependence accommodation, or any other HR issue, then please reach out to us at Legacy Bowes.
Renee Boyda is a human resources consultant with Legacy Bowes. Renee is a CPHR Candidate, received her Bachelor of Arts in Sociology from the University of Manitoba, and received both Human Resource Management and Management Development Certificates with Honours from Red River College. Renee is focused on building HR structures and processes to create consistency and fairness in workplaces across Canada. Renee is a proud Metis, with over 12 years of human resource experience in both union and non-union environments. She can be reached at (204) 947-5525.
