When does an individual’s right to privacy trump another’s right to a safe workplace? An employer who has ever had to deal with an employee’s drug or alcohol addiction, may have struggled with this question—along with the moral and ethical dilemmas that come with it.
The question might get a bit easier to answer in the near future, depending on how the Supreme Court of Canada and the Alberta Labour Board rule on two high profile legal cases — one involving New Brunswick’s Irving Pulp and Paper, the other involving Suncor Energy in Alberta. The rulings stand to determine the future of random alcohol and drug testing in Canadian workplaces and, indirectly, further clarify the gray area surrounding on-the-job drug and alcohol addiction.
Testing: What’s allowed?
In Canada, drug and alcohol addiction falls under the Human Rights Code as a disability. Employers are expected to accommodate an employee with an addiction to the point of “undue hardship.” The thing is, because of the nature of these disabilities, they’re often difficult to identify.
“Drug and alcohol addiction is one of the most challenging disabilities in the workplace, because there is a certain amount of denial in this addiction,” says Lisa Bolton, a lawyer with Sherrard Kuzz. “Absenteeism can be an indicator of a drug and alcohol addiction, but it could be a sign of other things too. Even if an addiction is disclosed, it’s still very challenging for an employer because relapses are often not disclosed.”
For an employer trying to eliminate such a risk from its plant floor, testing would appear to be the best option — but, due to privacy concerns, there are limits to how far one can go. Drug and alcohol testing is only legally allowed if the individuals being tested are employed in a safety-sensitive position, and even then, these tests are usually limited to post-incident, suspicious cause and pre-access.
Random alcohol testing is permitted in certain situations, but random drug testing is currently illegal — unless you’re a cross-border bus or trucking company governed by U.S. regulations. The rules also change depending on whether the working environment is unionized or non-unionized, and if the testing is part of a return-to-work program.
In the Irving and Suncor cases, both companies feature extremely safety-sensitive positions in extremely dangerous workplaces. While the oil sands industry — to which Suncor Energy belongs — has been known to have a problem with employee drug and alcohol use, Irving Pulp and Paper didn’t have a similar track record—it is merely trying to curb alcohol use in the workplace before a major accident occurs. Both companies are trying to implement random testing for individuals in safety-sensitive positions with the intention of deterring and identifying potential risks. The main difference is that Suncor is wishing to implement random drug and alcohol testing, while Irving is fighting solely for random alcohol testing.?
The Communications, Energy and Paperworks Union has opposed both companies’ attempts, citing such safety programs would infringe on an employee’s privacy and human rights — hence, the reason these cases are being heard in court.
Setting a strong foundation
Accommodating a drug or alcohol addiction to the point of undue hardship is probably the most tempting reason for an employer to look the other way. The term “undue hardship” can be extremely vague. When used in reference to a disease that is prone to relapse, it’s hard to determine how long the employer will have to accommodate such an employee. It’s even trickier if the employee doesn’t reveal his or her disability.
“One of the biggest legal challenges for employers is determining when enough is enough. How much accommodation is required before they reach the point of undue hardship?” says Bolton. “It depends on the specific workplace. Obviously, a small employer that is having problems juggling schedules will reach the point of undue hardship before a larger corporation.”
If an incident occurs and it’s found that a company looked the other way, that company can be found criminally negligent.
To add to the threat of criminal negligence, the cost of a drug and alcohol problem in the workplace can be astronomical. A study by the National Institute of Drug Abuse revealed the average cost of drug abuse per employee annually is $10,000 — a result of employee turnover, workers’ compensation claims, increased insurance premiums, absenteeism, employee theft, violence on the job and use of health-care benefits.
So how can you reduce the use of drugs and alcohol in your workplace a efficiently as possible? The first step is to have a good policy in place.
“One of the primary mistakes that employers make is treating drug and alcohol issues only as disciplinary matters without providing proper accommodation to a person. This creates difficulties from an employment law perspective,” says Bolton. “Another problem is not having a drug and alcohol policy in place. It’s a great opportunity for employers to set out expectations, determine whether there’s going to be drug and alcohol testing and, if so, under what circumstances.”
Nadine Wentzell, a workplace drug and alcohol consultant, agrees, adding the people who typically are confronted with drug and alcohol issues in the workplace are safety managers and human resources departments. Since they may not be experts in dealing with addiction, the company policy has to be clearly worded and easy to enforce.
“A good employment policy is key — people have to be able to read it and understand it,” she says. “So when you’re sitting down to write the policy, take time to understand what’s going on. It has to be customized to your workplace — don’t just copy something from the Internet. The Internet can be a starting point, but make it work for your workplace.”
A good policy should outline whether or not drug and alcohol use are allowed in the workplace and, if so, under what circumstances. For example, in social situations — like company holiday parties — what is allowed and what isn’t? If someone is caught drinking on the job, what will the repercussions be? When will drug or alcohol testing be permitted, if at all? If someone has an addiction, what resources are available to them—and what will a return-to-work program entail?
A good policy should also incorporate an employee assistance program — a confidential program that allows employees to obtain access to counsellors and additional resources to assist them in dealing with problems like an addiction. While many companies already may have such a program in place, if you’re focused on combatting substance abuse specifically, you may want to implement additional measures.
“Relying on your EAP exclusively as it relates to drug use at work is insufficient—it’s not an effective enough tool,” says Dan Demers, operations manager of occupational health at CannAmm, a company that helps organizations manage risk, liability and improve workplace safety in relation to substance abuse. “The EAP provider is tied to confidentiality — if an employee isn’t going to counselling, they can’t tell the employer that the employee is posing a risk to the workplace. It puts the workplace and public at risk.”
Demers suggests employers initiate their own “fit for work” policies in conjunction with the support offered by the EAP. If an individual is flagged for having an abuse issue, a typical employer-initiated program would send that individual to a third-party substance abuse expert for an assessment to determine if there’s an addiction or if the individual was simply “breaking the rules” by engaging in social drug or alcohol use on the job.
If it’s the latter, the employer has no legal obligation to accommodate, and can deal with them in accordance with the company’s drug and alcohol policy. However, many employers choose to accommodate first-time violations regardless of whether there is an underlying disability.
If there is an addiction, however, the substance abuse expert will issue a recommendation — follow-up tests, Alcohol Anonymous or Narcotics Anonymous meetings, treatment, education or counselling—and outline a return-to-work process.
“The difference between just going through an EAP and this process is the employer has the ability to make sure the employee is complying. They don’t know any details, but they know if they’re adhering to the recommendations,” says Demers. “There’s a lot more involvement on the part of the employer in the return- to-work process to ensure safety in the workplace.”
To test or not to test?
If the workplace can be classified as “dangerous” or if the employees are in safety-sensitive positions, the employer can opt to test for drug and alcohol use. If the employer chooses to implement such tools as part of its drug and alcohol policy, it’s important to remember they are designed to identify potential risks — not uncover people who are inebriated on the job.
“These individuals are in a safety-sensitive role. Any lapse in concentration or focus could result in serious injury, harm or death of another person. So their role, by definition, is different than others,” says Demers. “Being part of that role, they have to ensure they’re making good decisions on the job, and they come to work fit for duty. When you look at a drug test, you’re looking at potential risk. You’re not looking for impairment—you’re looking for risk.”
Demers explains there are no statistics that can scientifically prove substance abuse causes work-related injury. However, one can prove that an individual with a positive test poses a risk to the workplace.
As an example, all of CannAmm’s clients that have integrated drug testing into their safety programs have a total recordable injury frequency rate that is better than industry standards. Clients that perform random testing have experienced drops in positive test rates after two years of testing. For CannAmm’s U.S. Department of Transportation clients, that amounts to a 66 per cent decrease in positive rates after five years. And when comparing Alberta clients (a province that has more readily embraced workplace drug and alcohol testing) to Ontario clients, CanAmm reports a 6.1 per cent post-incident positive rate, compared to Ontario’s 13.9 per cent.
It would appear, Demers says, drug and alcohol testing does act as a deterrent, but determining whether it’s a tool that would fit into a company’s safety program is a judgment call by individual companies.
If drug and alcohol abuse isn’t a serious problem, identifying behavioural clues and ensuring there’s a proper process in place to document actions taken may be all a company needs to identify a potential risk in the workplace.
If, however, an employer would like to introduce testing but are concerned about how existing employees will take it, involve them in the process.
“A lot of employers fear there will be a backlash, but in most of the workplaces I go to, the employees want random testing. I have to explain to them that it’s not an option,” Wentzell says. “It’s easier to roll out a policy to employees if they have the opportunity to be involved. Get employee feedback. Put together focus groups to determine safety sensitive positions. It also helps to bring in someone external, to explain the benefits to them.”
It’s important to train and educate supervisors and managers on the purpose of testing—and how to correctly address the sensitive nature of it. One of the main reasons the Irving case is facing the Supreme Court is because an employee didn’t like the manner in which he was approached to take a random alcohol test.
“If a test comes back negative, it highlights the need for further testing—the employee could have been fatigued or have a medical condition. Someone who has an untreated diabetic condition might have the same signs and symptoms as someone under the influence,” says Demers. “We expect tests to come back negative. That’s why it’s important that it’s done in a dignified manner. You want to remove the risk, not attack the individual. That’s not the goal.”
Vanessa Chris is a freelance writer based in Toronto. You can contact her at [a href="mailto:email@example.com"]firstname.lastname@example.org