Substance impairment, safety and the law

“Employers face a delicate balancing act when addressing substance impairment,” says Christina Wendell, a partner at Dentons Canada, during the recent OHS Law Masterclass. “You need to prioritize workplace safety while respecting employee rights under human rights and privacy laws.”

This challenge is particularly acute in industries where impairment poses significant risks, such as construction, manufacturing, and transportation. For occupational health and safety (OHS) professionals, crafting compliant policies and handling cases of substance use disorder require careful planning and awareness of evolving legal standards.

The legal landscape: Multi-faceted challenge

Employers must navigate a patchwork of legal obligations when dealing with substance impairment. These include OHS laws, human rights regulations, privacy legislation, and employment contracts.

“OHS laws generally require employers to take reasonable steps to mitigate the risks of workplace impairment,” Wendell explains. “In some jurisdictions, such as British Columbia, there are specific provisions dealing with impairment, while others, like Alberta, rely on general duties under their legislation.”

Addiction often qualifies as a disability under human rights law, which prohibits discrimination and requires reasonable accommodation. This includes supporting employees in treatment or modifying their roles when necessary. However, Wendell emphasizes the need for documentation: “Employers must clearly define safety-sensitive roles and document why testing or restrictions are necessary to justify their actions.”

Policies that work: Clear, fair, and enforceable

Creating robust drug and alcohol policies is essential for addressing substance impairment effectively. Wendell advises that these policies outline key elements such as the scope of application, types of testing (e.g., post-incident or random), and the consequences of non-compliance.

“It’s not enough to draft a policy and let it sit on a shelf,” Wendell warns. “You need to implement it, ensure employees are aware of it, and enforce it consistently.”

One notable case Wendell highlighted involved a journeyman millwright who tested positive for cocaine during a random drug test. The employer required residential treatment as a condition for returning to work, but the employee proposed outpatient care instead. When the employee refused to sign a consent form for further evaluation, the court ultimately sided with the employer. “This case underscores that employees have a duty to cooperate in the accommodation process,” Wendell explains.

Testing and privacy: Striking the right balance

Drug and alcohol testing, particularly in safety-sensitive positions, remains a contentious issue. “Random testing is only permitted in limited circumstances,” Wendell says, citing the Alberta Court of Appeal’s decision in the Suncor case. “The courts require evidence of an enhanced safety risk, such as a documented problem with substance abuse in the workplace.”

Privacy is another critical consideration. Testing involves collecting sensitive information, which must be handled in compliance with privacy laws. “In unionized workplaces, testing policies are often challenged through arbitration, with unions arguing that testing constitutes an unreasonable intrusion into employee privacy,” Wendell notes. Clear policies and proper implementation can help employers defend their practices.

Actionable insights for OHS professionals

Wendell provides actionable advice for employers looking to navigate this complex terrain effectively:

1. Define Safety-Sensitive Positions: Ensure job descriptions specify the safety-sensitive nature of roles. This clarity can support the justification for testing or restrictions.
2. Invest in Employee Education: Offer training to help supervisors recognize impairment and understand their responsibilities in managing it.
3. Document Policies and Procedures: “Clearly outline the scope, goals, and processes in your drug and alcohol policies,” Wendell says. These should include accommodation provisions and disciplinary measures for non-compliance.
4. Monitor Legal Developments: Keep abreast of evolving case law and legislation to maintain compliance. “These cases are highly fact-specific, and staying informed is crucial,” Wendell advises.

“Substance impairment isn’t just a legal issue—it’s a workplace safety issue,” Wendell concludes. Employers must take a proactive approach, combining prevention strategies with clear policies and procedures to support affected employees while protecting their teams.

As substance use regulations and workplace expectations evolve, the need for robust and informed practices will only grow. For now, Wendell’s parting words offer a clear directive: “Invest in prevention, ensure compliance, and never lose sight of the human element.”