Legislative Compliance

The Advisory Chronicles: Accommodating employees with substance dependence

September 16, 2022

There’s a lot of stigma that surrounds drug and alcohol addiction, yet it’s an issue that an estimated 21% of Canadians will experience. It can be a tricky and delicate situation if you have an employee showing signs of impairment due to substance use at work. As an employer, it’s important to know what your rights and obligations are and how to respond.

By understanding human rights legislation, fulfilling your duty to accommodate, and being respectful and compassionate, you can better support employees who may be dealing with a drug or alcohol addiction.

To help you understand your responsibilities, we asked our HR experts to share what every employer should know about accommodating employees with substance dependence.

The duty to accommodate prevents discrimination based on disability

Sometimes it’s necessary to treat someone differently to prevent discrimination and remove barriers. This is called the duty to accommodate. Workplace accommodations ensure everyone can fully participate in the workplace and no one is unfairly excluded. Employers have a duty to accommodate an employee’s needs when they are based on a disability or any other prohibited ground of discrimination under human rights legislation.

Substance dependence is a form of disability in Canada

This means an employee with a substance dependence has the right to be accommodated (to the point of undue hardship), just like any other employee with a disability.

Accommodating your employee once they return to work may mean allowing them to take time off for treatment or supporting them with their treatment program, with the guidance of their medical professionals.

Workplace accommodations involve collaboration

Accommodations are most successful when all parties involved work together. The employee, the employer, and the union or employee representative all have a responsibility to approach the issue in a respectful, collaborative, and timely manner.

How to accommodate employees with substance dependence

If you believe one of your employees may be under the influence of alcohol or drugs at work, we advise following a five-step process.

  1. Recognize the signs

It’s important to first know what to look for. Substance dependence can lead to changes in attendance, performance, or behaviour, such as:

  • Personality changes or erratic behaviour (for example, increased interpersonal conflicts, overreaction to criticism);
  • Appearance of impairment at work (for example, odour of alcohol or drugs, glassy or red eyes, unsteady gait, slurring, poor coordination);
  • Working unsafely or involvement in an accident;
  • Failing a drug or alcohol test;
  • Consistent lateness;
  • Absenteeism; or
  • Reduced productivity or quality of work.

Don’t assume substance dependence. These changes in behaviour could be a result of substance dependence, but they may be unrelated. There could be many reasons for these changes, like another disability or temporary medical condition, a conflict at work, job dissatisfaction or low morale, stress from a lack of work–life balance, or personal problems unrelated to work.

If you do believe you observe a sign of impairment, have a second management representative observe and validate your observations.

Best practices:

  • Train supervisors and managers on the signs of substance dependence.
  • Always get a second opinion if you observe a sign of impairment.
  • Provide a Suspected Employee Impairment Checklist to managers. (If you’re looking for a template, check out HR Fundamentals for access to thousands of customizable documents).
  1. Talk about it

Once you notice changes in an employee that might indicate substance dependence, this triggers your duty to inquire. The duty to inquire is your legal obligation to start a discussion with the employee about a need for accommodation. If your workplace has positions that require drug and alcohol testing, your duty to inquire is also triggered if a positive test result shows up.

Speak to the employee about what might be causing these changes. While employees generally disclose their need for accommodation, a person with a substance dependence may not recognize or admit they have a disability. The associated stigma and fear of losing their job could make them reluctant to request or accept help. Denial is often a characteristic of substance dependence, so you may need to have more than one conversation with the employee.

When you speak with your employee, remember it’s not your place to diagnose them or recommend treatment. Instead, to fulfil your duty to inquire, you should:

  • Be respectful, compassionate, and non-judgemental;
  • Understand that the employee might be feeling pressured, guilty, or anxious;
  • Ensure the conversation is confidential; and
  • Identify concerns about the employee’s performance, behaviour, or positive test results.

What happens if an employee does not disclose a disability?

After your conversations, your employee may not disclose they have a substance dependence. In this case, clearly outline the consequences of their behaviour and deal with their attendance, performance, or other behaviour issues like you would with any other employee.

If the employee later provides a disability-related explanation, you’ll need to reconsider your approach. This includes re-evaluating the appropriateness of any disciplinary or other action you’ve already taken.

Best practices:

  • Only ask questions relevant to your employee’s need for accommodation, such as whether they have been assessed by a medical professional.
  • Let the employee know about workplace supports available, like an employee assistance program.
  • Allow the employee to involve their union or employee representative in discussions.
  1. Gather and consider relevant medical information

If an employee discloses that they have a disability-related need, you can request medical information to better understand what accommodation is required.

When you request medical information for the accommodation process, you’re balancing two competing rights: your right to manage the workplace and your employee’s right to privacy. Be as unintrusive as possible to respect your employee’s privacy rights.

Best practices:

  • Provide the medical professional with details about the employee’s job duties and responsibilities, work schedule, and other relevant information.
  • Avoid asking about the diagnosis or details of the treatment plan.
  • Limit requests to information related to the employee’s essential duties and their accommodation needs.
  1. Accommodate

If an employee is diagnosed with substance dependence, this triggers your duty to accommodate. Often, accommodation in these situations means a medical leave of absence for a period recommended by the employee’s medical practitioner. Other examples of accommodations include:

  • Changing the employee’s schedule so they can attend treatment or meetings;
  • Adjusting the employee’s job duties to meet needs as outlined in their medical assessment; and
  • Re-assigning the employee to a position that is not safety sensitive.

Best practices:

  • Approach each accommodation on a case-by-case basis to suit the employee’s unique needs.
  • Be as open and flexible as possible so you can find solutions that will meet the needs of both your employee and your workplace.
  • Create an individualized accommodation plan outlining the agreed upon accommodation measures. Put this plan in writing and have all parties sign the document.
  1. Prepare for the employee’s return to work

Before an employee returns to work, you should request medical documentation from the employee confirming they are fit to return to work.

Regularly follow up with the employee and adjust the accommodation plan where necessary. For example, if the employee has to attend meetings during certain times as part of their aftercare program, you can accommodate by adjusting their work schedule. You may want to require that the employee provide proof of attendance as part of the accommodation plan.

What happens if the employee relapses?

Human rights legislation recognizes that adjustments may be necessary in situations where the employee relapses. Your duty to accommodate only ends when it reaches the point of undue hardship, which is assessed on a case-by-case basis.

If relapses continue to occur, you may want to consider drafting a Last Chance Agreement. In this document, outline the terms and conditions by which the employee’s accommodation can continue.

You can also consider requiring random alcohol or drug testing during the term of the agreement, but you’ll want to carefully assess this option. Alcohol or drug testing should be clearly relevant to the role (for example, if they have a safety-sensitive position where they can cause significant damage or injury). You can also consider implementing disciplinary action for violating any company policy, such as having alcohol or drugs at the workplace.

Best practices:

  • Accommodations may change, so try to stay flexible and maintain clear communication.
  • Maintain privacy for the employee by only communicating changes to the accommodation plan on a need-to-know basis to those who are directly impacted.

Key takeaways

Canadian human rights legislation defines substance dependence as a disability. This means that when an employee is diagnosed with substance dependence, they have the right to be accommodated by their employer. This doesn’t mean tolerating an employee’s impairment in the workplace, but it does require making every reasonable effort to support your employee through accommodation.

Work with your employee and their union or employee representative to create a plan that works for the employee and your workplace. Keep in mind that needs may change. It’s important to stay compassionate and flexible throughout the accommodation process.

Our team of HR advisors helps clients coast to coast on all things HR! We speak with clients daily about the situations they face. Here are a few examples of some of the questions we advise on and assist with:

  • One of my employees has recently confided to me that they have decided to seek professional help for a drug addiction, which includes a 30-day leave of absence to attend a treatment facility. I had no idea they were dealing with such an issue, as things were going fine at work. Do I have to approve the leave of absence? If so, do I have to pay the employee? Am I allowed to ask for any documentation?
  • I have an employee who has been on medical leave to attend treatment. They have reached out to me recently and advised they are ready to return to work. Should I simply let them return? Do I request any documentation first?
  • What are my obligations regarding accommodation after the employee returns to work from treatment?

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