Introduction: How to Use This Tool
Workplace substance abuse remains a major challenge for OHS managers. Although sound in principle, the traditional zero tolerance policy is ill-suited to the legal complexities of the modern world. This is especially true now that Canada is on the verge of legalizing marijuana. You can still take a clear and firm line on worker drug and alcohol abuse for the purpose of health and safety. But the policy also has to exhibit finesse and sensitivity to legal subtleties. One of the best ways to create an enforceable policy is to base it not on the morality or even legality of substance abuse but the undisputable fact that it renders workers unfit for duty to the detriment of safety. Here’s a Model Fitness for Duty Policy you can adapt based on the laws of Québec.
FITNESS FOR DUTY & SUBSTANCE ABUSE POLICY
- Policy Statement
ABC Company recognizes that employees who use or are impaired by drugs or alcohol while performing work endanger not only themselves but their co-workers and others affected by the work. ABC Company’s policy with regard to such conduct is one of zero tolerance and employees must be aware that any violations they commit may result in disciplinary action up to and including termination.
However, ABC Company also recognizes that addiction to drugs or alcohol is a serious health problem. The intent of this Policy is to accomplish the health and safety goal in a manner that is fair, humane and consistent with employees’ accommodation rights under discrimination laws. The ultimate goal is not to punish but help employees identify and get help for their substance abuse issues so that they can return to work healthy, safe, happy and productive.
The objective of this substance abuse policy is to ensure that all employees report to work fit for duty. Adopting this Policy is a necessary measure that ABC Company is required to take to ensure the health, safety and physical well-being of its workers under Section 51 of the Québec Occupational Health and Safety Act (OHS Act).
This Policy applies to all individuals that work for ABC Company including but not limited to full-time, part-time, temporary and contract employees, independent contractors, volunteers and employees of third party contractors or subcontractors that ABC Company engages to perform work at its facilities.
a. Union Employees
This Policy applies to both union and non-union employees but is not intended to supersede or circumvent the provisions of any current collective agreement that ABC has negotiated with an employee’s union. In the event of a conflict between this Policy and a collective agreement, the latter shall control.
b. Contractor Employees
This Policy applies to individuals employed by contractors and subcontractors that perform work at ABC Company facilities but is not intended to supersede or circumvent the provisions of any current collective agreements that those contractors or subcontractors have negotiated with their own workers and their unions. In the event of a conflict between this Policy and a contractor employment agreement or collective agreement covering the worker, the latter shall control.
For the purposes of this Policy:
- “Drugs” includes:
- Narcotics and illegal drugs;
- Marijuana whether used or obtained legally or illegally; and
- Legal prescription and over-the-counter medications and drugs that cause or have the potential to cause impairment and render an employee not fit for duty.
- “Fit for duty” means a state of physical and mental that allows an individual to perform his or her job duties safely and effectively without impairment due to the use of or after-effects of alcohol, illegal drugs, legal medications or other health conditions.
- “On duty” includes reporting for and performing work, including:
- Scheduled work;
- Unscheduled call-in work;
- Work performed on ABC Company facilities;
- Work performed for ABC Company away from Company facilities, including but not limited to driving or traveling to and from work.
- “Safety-sensitive job” means positions that have a direct and substantial impact on the health and safety of the employee, other workers, customers, visitors, the public, property and/or the environment, including but not limited to those involving driving, operation of machinery or equipment, handling of toxic substances and others determined by ABC Company.
- “Substance abuse” means the use of alcohol, illegal drugs, legal marijuana and medications and other substances that can impair a person’s judgment, clarity and functioning and render him/her not fit for duty.
- Requirements for Employees
All employees and workers covered by this Policy are required to:
|i.||Come to work fit for duty;|
|ii.||Take necessary measures to protect the health, safety and physical well-being of themselves and others at or near the workplace at all times while on duty as required by Sections 49(2) and (3)of the OHS Act;|
|iii.||Refrain from using or being impaired by alcohol or drugs while they are on duty;|
|iv.||Refrain from possessing, purchasing, selling, distributing or engaging in any other conduct involving alcohol or illegal substances or paraphernalia while they are on duty;|
|v.||Refrain from misusing or being impaired by prescription or non-prescription drugs while they are on duty;|
|vi.||Notify their supervisor if they suspect that a co-worker is unfit for duty; and|
|vii.||Submit for drug and alcohol testing in accordance with the ABC Company Testing Policy.|
- Legal Marijuana
a. No Exemption for Legal Marijuana Use
All employees must understand that marijuana is an impairing drug and that using it at work or coming to work high renders them unfit for duty in violation of this Policy. This is true regardless of whether their use of marijuana is legal under federal drug laws.
Legal marijuana use is not a justification for being unfit for work!
b. Employee Duty to Notify
Employees must notify their supervisor if they are using legally prescribed medical marijuana or other legal prescription and non-prescription drugs that may cause impairment for the treatment of a medical condition. Off-duty and legal use of such drugs does not violate this Policy as long as employees are fit for duty at all times when they are on duty.
- Support for Employees with Substance Abuse Issues
Although ABC Company reserves the right to discipline, it also recognizes that addiction and substance abuse is a health problem. ABC Company is prepared to help employees get the counselling, treatment, rehabilitation and support they need to overcome those problems. [Describe your organization’s Employee Assistance Program or other resources or programs for helping employees with substance abuse issues.]
ABC Company strongly encourages employees with substance abuse problems to step forward and request help voluntarily. [Describe your organization’s procedures for responding to self-report requests for help.] Employees who do self-report will not be subject to discipline as long as they have complied with their obligation to be fit for duty under this Policy.
- Fitness for Duty Medical Assessments
Employees must undergo medical assessments to ensure they are fit for duty before being placed in a safety-sensitive job. Assessments will address substance abuse and be performed:
- Prior to employment when individuals are applying for safety-sensitive jobs;
- Before current employees are transferred from non-safety-sensitive to safety-sensitive jobs; and
- Periodically for as long as the employee remains in a safety-sensitive job.
Medical assessments will be performed by qualified healthcare professionals following appropriate medical practices and results will be kept confidential to the extent required by personal privacy laws.
- Disciplinary Investigations
ABC Company may open a disciplinary investigation to check whether an employee is engaged in substance abuse or otherwise in violation of his/her fitness for duty obligations under this Policy in response to:
- Complaints or concerns by co-workers, supervisors, etc.;
- Declining performance;
- Erratic behaviour;
- Involvement in safety incidents including near misses;
- Arrests for impaired driving, drug offences and similar violations; and
- Other indications that the employee has substance abuse issues or is otherwise not fit for duty.
Investigations will be carried out in accordance with ABC Company’s Disciplinary Investigation Procedures.
- Drug & Alcohol Testing
Employees may be tested for alcohol and drugs in accordance with ABC Company’s testing policies. [List the conditions for testing under your organization’s own testing policies. Be sure to address: i. Alcohol and drug testing; ii. Safety-sensitive and non-safety-sensitive employees; and iii. Random and for-cause/post-incident testing.] Supervisors will escort employees to the screening site for testing. Refusal to submit to testing will be grounds for immediate termination under this Policy.
ABC Company recognizes that test results and related information is protected personal information under privacy laws and will keep it confidential and secure and refrain from using or disclosing it except as permitted or required by law.
- Consequences of Violations
Violation of this Policy is grounds for discipline up to and including termination in accordance with the ABC Company Progressive Discipline Policy. Employees with substance abuse issues on administrative leave may also be referred for counselling or assistance through the ABC Company Employee Assistance Program or outside agencies.
- Assistance & Reinstatement
ABC Company reserves the right to place employees with substance abuse issues on administrative leave and enter into Last Chance Agreements offering them the opportunity to return to work if they successfully complete the terms of their treatment and rehabilitation program, pass drug and alcohol tests and meet other conditions of reinstatement.
- Employee Right to Accommodations
ABC Company recognizes that drug and alcohol addiction is deemed a disability under the Québec Charter of Human Rights and Freedoms. Accordingly, in administering the disciplinary and other provisions of this Policy, addictions and other substance abuse related to disabilities, such as use of medical marijuana or prescription drugs for chronic pain and debilitating conditions, will be treated as non-culpable violations and employees will be offered reasonable accommodations based on their individual circumstances and capabilities to the point of undue hardship.