Rare is the workplace that permits consumption of alcohol during work hours, aside from special occasions or a client lunch. Indeed, most workplaces have rules that require employees to refrain from consuming alcohol or illicit drugs while working or from attending at work under the influence.
The upcoming legalization of recreational marijuana means that most employers will wish to and will be justified in prohibiting recreational marijuana use or impairment at work in the same way that alcohol, although legalized, is typically prohibited.
The obvious rationale is that these substances may impact job performance, and, worse, jeopardize safety of the employee and others. Possessing illegal substances can of course have criminal consequences.
Medical marijuana should not be outright banned, but rather should be treated in much the same way as other prescription drugs. That is, a case by case determination should be made about its impact on work performance and safety. An employer is required to accommodate that need to the point of undue hardship and can do so by obtaining necessary medical information from an employee’s physician such as whether or not the employee will experience any impairment at work and, if so, what limitations that creates in the context of his or her specific role. The employer will be in a position to request information on prognosis and work with the employee to create either a permanent or temporary accommodation of that need. Safety is a paramount consideration in this exercise. The exercise would be the same if an employee was prescribed a medication that caused drowsiness, for instance.
Enforcing rules on both legal and illegal substances at work is not straightforward as an employer must carefully consider its obligations under Ontario’s Human Rights Code before taking action. If there is suspicion that an employee is struggling with addiction which is impacting work, or if the employee advises that is the case, it is then appropriate to seek further information from that employee’s doctor on whether or not he or she is able to perform work duties. Addiction is considered a disability under the Code. An employer may be obligated to extend a leave of absence without pay while an employee seeks treatment or to temporarily re-assign an employee to a non-safety sensitive role, for instance, depending on circumstances.
While an addicted employee should not be disciplined for merely having an addiction and being in breach of a policy that prohibits impairment at work, it is appropriate for an employer to set out guidelines to govern the relationship, particularly for a recovered employee’s return to work. It is an important exercise, prior to bringing an employee back to work after rehabilitation, to determine whether there are any ongoing limitations and needs.
Particularly in safety sensitive positions, it is acceptable to have a policy upfront that requires disclosure of an addiction or impairment prior to work performance. The Supreme Court of Canada upheld a dismissal for breach of such a policy on that basis in Stewart v. Elk Valley Coal Corp. 2017 SCC 30 last year. Had the employee disclosed his addiction, as required, the employer would not have been in a position to dismiss. The failure to do so created significant risk.
An employer’s obligations to an addicted employee do not extend forever, but given the nature of addiction, relapses are possible, even if the employee is following a recommended treatment plan. Each instance must be treated on a case by case basis with necessary medical input.
An employee struggling with addiction at work typically has greater job protection and likelihood of obtaining necessary time and resources by being forthright with an employer. This is a far more productive approach than letting an accident happen first or than getting fired for breach of a policy because there is no knowledge of an addiction or other disability in the first place.