A recent webinar presented by the labour, employment and human rights law publisher Lancaster House examined substance use in the workplace, as well as the outcomes of arbitration cases. According to the webinar speakers, “good-faith efforts” are essential in creating return-to-work plans for employees after treatment of drug and/or alcohol disorders.
According to Aminah Hanif, legal counsel of Cavalluzzo LLP, post-incident testing is not carried out to rule out an employee’s impairment after an accident, but rather to confirm substance use because the accident “can’t simply be explained through human error.” Hanif added that case law shows that the incident “needs to be fairly serious” to justify drug and alcohol testing.
Hanif is an expert in construction law, and stated the employer’s duty to accommodate an employee often requires the “risk of relapses”, since repeated relapses frequently occur in substance use disorders. However, a single relapse doesn’t necessarily qualify as “undue hardship” for an employer – sometimes, a company’s size and ability to absorb multiple relapses in the workplace can determine the duty to accommodate the employee.
During the webinar, Kris Noonan, partner at the Stikeman Elliott LLP’s Employment & Labour Group, reiterated that employers need to accept that for many employees with substance use issues, there is “a strong chance of relapse.” Noonan added that an employer should be able to demonstrate that all accommodation alternatives and precautions to reduce the risks of an employee relapsing have been considered and explored.
Additionally, Noonan said that in case law, arbitrators suggest that consideration should be given to providing occupational medical specialists to evaluate the duties of the worker in relation to their limitations. According to the legal expert, even in cases where an employer is unaware of an employee’s substance use issues, it doesn’t mean that they will not be required to accommodate the worker when the issue is discovered.
Hanif also mentioned that disclosure of medical information of an employee should be limited to current or active addictions and the information limited to persons on a need-to-know basis. “Rarely employers are entitled to (an employee’s) specific diagnosis…or details of the (medical) treatment plan,” added Noonan.
Colin Johnston, an arbitrator and member of the Human Rights Tribunal of Ontario, said that Last Chance Agreements (LCAs) can be non-compliant with human rights legislation. He also mentioned that it is important for employers to take steps to accommodate the employee — which may include relapse events — before imposing an LCA.
Case law demonstrates a need for “accommodation evidence” for the implementation of an LCA. The LCA “should read like a rehabilitation plan that makes a good-faith effort to return the employee to work,” Noonan suggested.
Noonan also recommended that in addition to the return-to-work substance test, the plan should require the grievor to be assessed by a substance abuse professional to develop a treatment plan and have regular follow-ups to ensure adherence.
Johnston added that arbitrators typically consider a grievor’s sincerity, willingness to take responsibility for rehabilitation and, when applicable, the expectation for them to return to the workplace in a safe manner.