Duty to accommodate may be triggered for medical use, substance abuse
You may have noticed a particular worker is exhibiting symptoms of cannabis use. Perhaps he has an inability to concentrate or think clearly. Maybe he is dizzy and drowsy or disoriented and confused. You may be particularly concerned about his slowed reaction time and lack of coordination. If you suspect a worker is impaired, as the employer, you have a duty to respond, said Jan Chappel, senior technical specialist at the Canadian Centre for Occupational Health and Safety (CCOHS), speaking at the Canadian Society of Safety Engineering conference in Niagara Falls, Ont., on Tuesday.
When responding to suspected impairment, start by stating that you are concerned about the worker’s safety as well as the safety of her co-workers. Chappel suggests trying something like this:
“We noticed you’re not working within our safe work practices. Someone was concerned you almost hit that post on the way by. Can you help me understand what’s going on?”
Or “You seem upset and distracted. Is everything OK?”
Chappel said these are very legitimate questions employers can ask, but they do need to keep in mind they are not diagnosing the worker.
“You are not a doctor, you are not a psychologist, it’s not your role to look for cause. You are just looking for ‘How can I get this person to tell me how they can work safely today,’” she said. “I know at some point you’ll have the same conversation with the same person over and over and over again and your mind will drift into ‘Are they addicted or dependent on this?’ Again, you’re not the psychologist; you will have to phone your HR (department).”
She acknowledges that conversation is hard to have and recommends thinking of it as “exploring the situation” rather than “confronting the situation.” It’s important to focus on solutions and be prepared to do a lot of listening, Chappel said. Keep referring to the position of the employer (“I need your work performance to be within our safe parameters”) and make sure to document the conversation. You may want to have a third person in the room with you to make sure you are covering all your bases, she suggests.
Your incident report should include the following:
•identification of concerns of unsafe work practices
•what matters were discussed
•list of actions taken
•any agreements made with the employee
•any recommendations made to the employee.
It’s crucial you aren’t accusatory during the conversation, cautions Chappel.
“Don’t jump to conclusions or make judgements. Nine times out of 10 the answer is not what you thought it was before you went into the room,” she said.
Make sure to point the worker to available resources, such as the employee assistance program (EAP), community resources, counselling services and local doctors.
If it turns out the cannabis use is for medical purposes or there is a substance dependence issue, the employer has a duty to accommodate. The physician should provide the employer with the following: specific accommodation needs; any relevant details of a treatment plan; any implications for behaviour, attendance or performance; the return-to-work plan if the worker has to be off work; and if the employee can safely perform the job (especially if he is in a safety sensitive position).
“Information requests are limited to essential duties and accommodation. You don’t always get that diagnosis part, but you get to know what they are able to do while they are undergoing treatment,” Chappel said.
As the employer, you should provide the physician with the worker’s job description and related duties and responsibilities, their work schedule, if the position is safety sensitive and any other pertinent information.
It’s important that workers understand the role they play in identifying impairment on the job site. They should notify their supervisor right away if they think a co-worker is under the influence of cannabis at work.
“They can report, and they can support each other: ‘You know what, you’re not looking so good today, we need to have a chat,’” Chappel said. “That buddy system works really well.”
