Legislation and balancing due diligence with privacy
In a series of articles, Workplace Safety North reviews (1) Statistics regarding alcohol and drug use in Canada, (2) Legislation and balancing due diligence with privacy, (3) Policy development and implementation, and (4) Roles and responsibilities of supervisors and workers, plus resource information.
With the expected legalization of marijuana in Canada, this is a good time to review current occupational health and safety legislation, as well as your workplace health and safety policy regarding alcohol and drug use; and, if you don’t have a policy, it’s time to create one.
What the law says
Unlike the United States and some European countries, Canada does not require or regulate testing in certain safety-sensitive industries such as transportation. Canadian employers face a variety of potential legal issues that may be related to alcohol and drugs, and are best addressed through consistent implementation of a clear and reasonable policy.
This can include addressing the liabilities associated with the actions of impaired employees at work, due diligence responsibility around workplace safety, actions in response to possession or trafficking of illicit drugs, and the duty to accommodate those with a chemical dependency in accordance with human rights provisions.
Onus on employers
“Occupational health and safety legislation places the onus on employers to ensure the health, safety and welfare of employees,” says Barb Butler, consultant at Barb Butler & Associates, an Ontario company that specializes in the development of drug and alcohol policies for individual workplaces. “Employers must prove diligence in minimizing or eliminating all potential safety risks, including those associated with independent contractors.
“Organizations can be liable for any negligent or wrongful acts committed by an employee acting within the course of employment, including negligence for allowing an alcohol or drug impaired employee on a worksite or public highway once declared unfit to work.
“Negligence can also occur when returning someone to a risk-sensitive job after treatment or a policy violation, but sufficient monitoring mechanisms are not in place and a substance-related incident results. The company policy should have provisions to address these responsibilities,” notes Butler.
Physical risk and perceptual risk
According to Sudbury Public Health Nurse Brenda Stankiewicz, preventing substance abuse is everybody’s responsibility. “I think what’s really important is for all workplaces to understand – although your colleague, your coworker, your staff may be an excellent worker, it’s that one time when they choose to use alcohol or another drug and show up at work and put everybody in danger.
“Whether that’s a physical risk for other workers, or a perceptual risk when somebody walks in and sees somebody who’s acting funny or smelling a little strange after lunch. Those are perceptions that outside clients may have of your workplace based on the behaviour of one person. So I think it really is everybody’s responsibility to keep your workplace safe, and to keep the perceptions of your workplace as a safe operation.”
Substance abuse is considered a disability under the Ontario Human Rights Code, and it’s important that support and treatment is available. “Alcohol is a drug and it needs to be treated as a drug,” says Stankiewicz. “People who misuse it, use it inappropriately, they don’t need to be stigmatized, they need to be recognized and they need to be helped. And then, once they return to work, their recovery needs to be celebrated.”
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Read first article in series: Is your alcohol and drug policy up to date? Statistics on workplace alcohol and drug use
Much of the information in this article comes from three main sources, which include research, guidelines, sample policies and much more:
Let’s Take Action on Alcohol Problems in the Workplace – Ontario Public Health Association. Includes how to develop and implement an alcohol and drug policy; sample policy; resource list; three checklists: (1) Policy Process; (2) Policy Content; (3) Policy Implementation.
Alcohol and the Workplace: Toolkit – Kingston, Frontenac and Lennox & Addington Public Health
Canadian Model for Providing a Safe Workplace: Alcohol and Drug Guidelines and Work Rule - A best practice of the Construction Owners Association of Alberta
How to prepare an occupational health and safety policy - Ontario Ministry of Labour
Policy on Drug and Alcohol Testing - Ontario Human Rights Commission