Workplace Drugs, Alcohol & Substance Abuse – Compliance Game Plan

Preventing work impairment without violating privacy and disability accommodations laws.

Workplace substance abuse shouldn’t be such a controversial issue. After all, you can’t keep workers safe unless they show up sober, fit for duty and free from the intoxicating effects of alcohol, drugs and other impairing substances, both legal and illegal (which, for simplicity’s sake, we’ll collectively refer to as ‘drugs’). The problem is that drug addiction and dependency also happens to be a disability that human rights laws protect from discrimination. In addition, drug and alcohol testing, the principle means of enforcing workplace substance abuse rules, is highly privacy invasive. As an OHS coordinator, you must ensure that your company’s anti-drug policies don’t violate discrimination and privacy laws. Here’s a 13-step Compliance Game Plan for meeting that challenge.

Step 1. Choose Fitness for Duty Over Zero Tolerance

First, avoid the ‘zero tolerance’ principle. Recognize that in a world where alcohol and marijuana are legal and addiction is a disability requiring accommodation, tolerance may, in fact, be required. Drug use may or may not be legal. But the one thing nobody disputes is that workplace drug use or impairment creates an unacceptable safety risk. And that’s why you should base your anti-drug policies on fitness for duty and not zero tolerance.

Step 2. Explain What ‘Fit for Duty’ Means

Define ‘fitness for duty’ as a physical and mental state that allows an individual to perform their job duties safely and effectively without impairment due to the use of or after-effects of:

  • Alcohol;
  • 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.

Step 3. Get Workers to Disclose Their Drug Problems

Treat substance abuse as a problem, not a form of misconduct, and get workers who self-disclose the help they need without being subject to discipline, provided that they’re fit for duty. If workers don’t take the offered amnesty and later get caught being unfit for duty, you can discipline them. A Canadian Supreme Court called Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, recognizes the general legality of that approach.

Step 4. Get Right to Perform Medical Assessments of Safety-Sensitive Workers

While privacy-invasive, individual medical assessments are justified as long as they’re limited to so called ‘safety-sensitive’ workers like machine operators, miners, drivers, etc. Assessments should be performed by qualified medical or substance abuse professionals before workers are assigned to a safety-sensitive job.

Step 5. Establish Investigation Procedures

Make sure your fitness for duty and other anti-drug policies explain how you investigate suspected substance abuse, including red flags and triggers for inquiry:

  • Complaints, concerns or reports of substance abuse;
  • Declining performance;
  • Erratic behaviour;
  • Involvement in safety incidents including near misses;
  • Arrests for impaired driving, drug offences and similar violations; and
  • Other reasonable indications of substance abuse issues or unfitness for duty.

Step 6. Establish Right to Perform Drug & Alcohol Testing

Testing is the key to enforcing your anti-drug policies. It’s also the most legally sensitive element of the policy. If your workers are in a union, you’ll probably need to negotiate the testing policy as part of the collective agreement.

Step 7. Define the Bases for Drug Testing

One of the most important parts of an anti-drug policy are the rules for different bases of drug and alcohol testing. In general, testing is generally justifiable only for safety-sensitive workers, especially when it’s for cause, for example, right after a workplace incident or in response to other reasonable suspicions of immediate impairment. Random testing is extremely hard to justify. A standard way to apply these principles is for the policy to address:

  • Pre-employment testing: Mandatory for applicants who receive offers for safety-sensitive jobs;
  • For-cause testing: Allowed when there’s grounds for reasonable suspicion of impairment, with such grounds specifically listed;
  • Post-incident testing: A form of for-cause testing allowed after safety incidents and near misses;
  • Random testing: Permitted only in narrow safety-driven circumstances;
  • Post-rehabilitation testing: May be required for workers that test positive and who are offered last chance agreements and the opportunity for rehab in lieu of termination, and may include random testing; and
  • Scheduled periodic testing: May be required as part of a fitness for duty medical exam.

Step 8. Set Out Clear Testing Procedures

Your policy must address 6 crucial testing procedural issues:

  • How job applicants and workers give their consent to be tested;
  • How samples are collected and who can collect them;
  • The controls in place to ensure the integrity of the sample from collection to transporting to the lab and actual testing;
  • The methods used to confirm initial positive test results;
  • The criteria for a positive result’which should generally track the applicable regulatory limit for the substance tested for, e.g., BAC for alcohol; and
  • Procedures for retesting and appeals after positive results.

Step 9. Apply Testing Rules Fairly

The legality of a testing policy depends on not just what it says but how it’s applied in actual situations. Thus, for example, a fairly negotiated post-incident testing policy may cross the line if the employer applies it over broadly by treating minor incidents as a test trigger. You can also get into trouble if you don’t apply the policy consistently.

Step 10. Keep Test and Medical Assessment Records Private

The policy should acknowledge that testing results and individual medical assessments are privacy-protected information that you’ll keep confidential and secure in accordance with privacy laws.

Step 11. Distinguish between Casual Drug Use & Dependency in Imposing Discipline

Avoid knee-jerk reactions when disciplining employees for failing drug tests and being unfit for duty. Recognize that workplace drug use and impairment is worthy of discipline when the worker is just a casual user; however, the human rights duty to accommodate kicks in if the worker has a dependency. Be sure to determine what you’re dealing with before making a decision about discipline. Even when discipline is justified, be sure to mete it out in accordance with the rules and procedures set out in your company’s progressive discipline policy and the terms of collective agreements covering the worker.

Step 12. Consider Rehab Rather than Termination

Reserve your right to offer workers who commit drug violations the opportunity to enter a last chance agreement in lieu of immediate discipline or termination. Typically, the worker is put on administrative leave and allowed to return to work, provided they successfully complete a rehab program, and meet other reinstatement conditions, which often includes accepting and passing regular testing, which may include random testing. (Policy, Sec. 11). Consider entering into Last Chance agreements offering reemployment if the worker successfully completes treatment, rehab and other reinstatement conditions.

Step 13. Respect Workers’ Accommodation Rights

Last but not least, include a provision in your policy acknowledging that addiction and disabling conditions for which legally authorized medical cannabis are used are used are disabilities under human rights laws for which you’ll provide reasonable accommodations up to the point of undue hardship.