For individuals who are dependent on alcohol and/or drugs, that dependency can be more than just a social issue—it can also can impact their performance at work.

Drugs and alcohol not only affect people physically, but also mentally because their cognitive skills (e.g., decision-making skills) can become impaired, said Barb Butler, president of Barbara Butler & Associates Inc., speaking Thursday in Toronto at the EAPAT seminar “Duty to Accommodate: Alcohol and Drug Issues.”

And employers should be aware that drug impairment can also result from the use of prescription and over-the-counter medications. Such drugs can negatively impact performance, even when the medication is used as directed, says Butler.

Why employers should take note
There are legal implications for negligent acts of an employee who acts within the scope of his or her job—even outside of the workplace. For example, the employer would be accountable for injuries suffered by a third party caused by an intoxicated driver of a company vehicle, even if the vehicle was being used on the employee’s personal time.

The employer must prove due diligence in minimizing health and safety risks, and is under obligation to ensure safe operation of its business. This obligation also extends to contractors and subcontractors.

What employers should do
Employers need to have a drug policy in place, as well as a process to deal with work modifications, if needed. “Employers can’t discriminate against somebody because they use a medication,” Butler said.

This policy should be comprehensive and should include awareness and education programs and access to assistance and assessments. There should also be training for supervisors, particularly on how to investigate a possible violation of the policy—without being invasive.

Indeed, acting under the “perception” of a disability is prohibited under human rights law. Managers must focus on the employee’s performance and fitness for work. In essence, managers need to ask, “Is the person fit to do his or her job?” The manager cannot speculate on whether an employee has a problem.

“That can lead you into a very expensive litigation route,” Butler said.

If you don’t have a policy, assess the core requirements for your own operation—don’t just use what another company is doing, Butler said. “Consult with the key stakeholders within your organization, including unions.”

Ensure that you provide advance communication with all employees, and get accurate information on assistance, assessment and testing services, and select knowledgeably.

If you already have a policy, review it periodically because the legal environment is changing. Communicate the policy regularly with employees, and train and retrain supervisors as needed. And ensure the rules for alcohol and drug use (including medications) are clear, including the routes by which employees can access assistance and the conditions under which they can return to duty if they’re in violation. Companies often tend to just do a sweeping statement.

There should also be clear procedures for escorting an employee from the company premises and for employee searches. You can’t just rifle through an employee’s locker or purse, Butler said.

And determine whether, and under what circumstances, alcohol testing is necessary. For example, there may be higher standards for high-risk, safety-sensitive jobs, such as a crane operator.

Lastly, contract qualified providers such as substance abuse professionals (SAPs) to perform employee assessments. The SAP assesses whether the individual has a dependency problem and recommends appropriate treatment. He or she also confirms that the treatment has been followed and advises on appropriate aftercare programs. The SAP does not provide counselling or EAP services; the SAP is the employer’s tool to determine its accommodation responsibilities.

Copyright © 2020 Transcontinental Media G.P. Originally published on benefitscanada.com

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