Substance dependency may result in significant workplace problems, ranging from lost productivity and absenteeism to issues of workplace safety. Supporting an employee who is struggling with a substance use disorder can be incredibly challenging for employers and unions, who must balance accommodation, privacy rights, and workplace safety. In this session, prominent counsel join a seasoned consultant in addiction medicine to provide guidance on addressing substance dependency in the workplace. Topics to be discussed include:
- Understanding substance abuse and dependence: How prevalent are substance use disorders in Canada? What is the difference between substance abuse and substance dependence? What job performance and workplace behaviours may be warning signs of a potential substance abuse or dependency issue? What are some best practices for approaching an employee who appears to be struggling with a substance use disorder? What strategies are effective in combatting stigma, and encouraging affected employees to seek help?
- Clarifying the duty to inquire: What is the employer’s “duty to inquire,” and how far does it go? What should be done if the employee denies having a problem, even though other signs point to possible dependency? In what circumstances will it be found that the employer should reasonably have known that substance abuse or dependency was a factor in an employee’s behaviour?
- Meeting the duty to accommodate: In general, what are an employer’s obligations towards an alcohol- or drug-dependent employee in the accommodation process? What kinds of accommodations are typically found to be appropriate? Referral to rehabilitation? Toleration of absenteeism? Reassignment to different duties? Scheduling changes? Will an employer’s duty to accommodate come into play if a claim of substance abuse is made only after discipline or discharge is imposed, for example, during the grievance procedure? Does the employee have reciprocal duties in the accommodation process, and if so, what are they? What is the union’s role in the accommodation process? At what point may accommodative measures give rise to undue hardship? To what extent is an employer obligated to tolerate relapses?
- Creating enforceable last chance agreements: What provisions are usually included in a last chance agreement? Are last chance agreements consistent with the employer’s duty to accommodate? In what circumstances can the terms of a last chance agreement be challenged?
- Dealing with misconduct: In cases of drug- or alcohol-related misconduct, what is the difference between the “disciplinary” model, the “therapeutic” model, and the “hybrid” model? Which of these models is most commonly applied, or does it differ depending on the arbitrator or jurisdiction? Under the hybrid approach, which types of behaviour will be treated as “culpable” and therefore warranting disciplinary measures, and which ones will be viewed as “non-culpable,” attracting an accommodative response? Is an employee’s failure to seek assistance itself blameworthy or culpable? What degree of control over the misconduct is necessary before it will be characterized as culpable in nature? What legal tests do adjudicators apply in determining whether workplace misconduct is causally connected to substance abuse? Is post-discharge evidence of rehabilitation admissible before an arbitrator? If so, what weight will be given to such evidence?