April 25, 2019

The legalization of recreational cannabis use has prompted employers across Canada to review the way they deal with substance use that affects – or may affect – the workplace. However, a recent report from the Canadian Centre on Substance Use and Addiction notes that, while almost all workplace substance use policies appear to incorporate disciplinary responses, many fail to provide for appropriate support and accommodation of employees. In this session, an expert on substance use disorders will join experienced labour lawyers to provide guidance on developing accommodations and accommodation procedures that comply with human rights legislation, respect employee privacy, promote workplace safety, and provide employees with the support they need.

  • What is the difference between recreational drug or alcohol use and problematic use that constitutes a disorder? When does medical use of a substance – opioids, for example – become a substance use disorder?
  • Do people become “addicted” to cannabis in the same way they become addicted to alcohol and other drugs? Is there any medical consensus on safe cannabis use? For example, are there guidelines for cannabis use similar to Canada’s Low-Risk Alcohol Drinking Guidelines?
  • Following the Supreme Court of Canada’s decision in Elk Valley, can workplace policies place the onus on employees to disclose all drug and/or alcohol use? Does having a policy mandating the disclosure of substance use disorders relieve the employer of the duty to inquire found in human rights law?
  • What is the appropriate response to an employee who discloses a substance use disorder but who has not shown signs of being impaired or having difficulty at work?
  • What job performance and workplace behaviours may be warning signs of a substance use disorder? What are some best practices for approaching an employee who exhibits signs of having a substance use disorder?
  • What should be done if the employee denies having a problem, even though other signs point to possible dependency? Is denial an inherent part of a substance use disorder?
  • If an employer suspects that an employee has a substance use disorder, can the employer require the employee to provide medical evidence that he or she is fit for work? If so, what type of evidence would be appropriate?
  • In general, what is the scope of the duty to accommodate an employee with a substance use disorder and what are the best practices in providing accommodation that meets or exceeds the legal standard? Should an employer require an employee to engage in treatment for a substance use disorder as part of the accommodation process? Can the employer specify the type of treatment?
  • In cases of drug- or alcohol-related misconduct, what is the difference between the “disciplinary” model, the “therapeutic” model, and the “hybrid” model? Has Elk Valley altered the manner of assessing whether workplace misconduct is causally connected to a disability?
  • Are last chance agreements enforceable if the employee in question has a substance use disorder? What are the alternatives to a last chance agreement?