Waking the Sleeping Giant

1
Waking the Sleeping Giant

• aka Do I really want to know?

MaryAnne Arcand Vice President, BC Council on
Substance Abuse Director, Forestry TruckSafe
Northern Initiatives, BC Forest Safety Council
2
Disclaimer!

• This is not legal advice. To get specifics on
  the latest provincial or federal legal decisions
  and CHRA decisions you need to consult a labor
  law professional
• The information in this presentation is provided
  for general information and discussion purposes
  only

3
What are we talking about?

• Legal, cultural and moral responsibilities for
  employers
• Why some employers really dont want to know
  the what I dont know cant hurt me mentality

4
Why have the discussion?

• The problems posed by employees or contractors
  who abuse drugs or alcohol go beyond simply
  issues of employee turnover, absenteeism and low
  productivity, but can include serious risks to
  occupational health and safety.
• Lawson Lundell, 2005
• Addressing Substance Abuse in the Workplace

5
Why have the discussion?

• Companies face exposure to corporate liability
  for workplace accidents caused by employees or
  contractors who are under the influence of drugs
  or alcohol. For many workplace settings it is not
  hard to imagine serious personal injury, loss of
  life or significant property damage resulting
  from the actions of an impaired employee or
  contractor. In those kinds of scenarios a company
  that may have known or suspected that there was a
  problem with drug and alcohol abuse in the
  workplace and failed to take steps to address the
  issue, will face a risk of liability and exposure
  to a potentially significant award of damages.
  
• Lawson Lundell, 2005

6
Perception
7
How could I miss that?

• We really only see what we are looking for
• Most of us subconsciously dont want to see it
  because we dont want to have to deal with it
• Some of us are blind to it because its part of
  our own cultural lens

8
Definition of legal liability

• Any legal responsibility, duty or obligation. The
  state of one who is bound in law and justice to
  do something which may be enforced by action.
• Legal obligation imposed on a party for its
  negligence, failure to fulfill contractual
  obligations or violation of law
• Individual's or company's obligation to act
  responsibly

9
Legal Responsibilities

• Doing what youre obliged to do by law
• While the law sets out responsibilities, much of
  how those responsibilities are discharged is left
  up to the individual employer

10
Legal definition of responsibility

• 1. The obligation to answer for an act done, and
  to repair any injury it may have caused.
• 2. This obligation arises without any contract,
  either on the part of the party bound to repair
  the injury, or of the party injured.
• 3. It is a general rule that no one is
  answerable for the acts of another unless he has,
  by some act of his own, concurred in them. But
  when he has sanctioned those acts, either
  explicitly or by implication, he is responsible.

11
Whats the difference?

• Usually see the two terms side-by-side
• Legal liability is the letter of the law very
  prescriptive, not under your control
• Responsibility is how you carry out the law
  under your control, subject to a wide range of
  interpretation and opinion

12
Legal Responsibilities

• Relevant Statutory Provisions
• Discrimination is prohibited by employers on
  the basis of disability and perceived disability
  (sections 7 and 10 of the CHRA)
• "Disability" includes those with a previous or
  existing dependence on alcohol or a drug.
• Perceived" disability may include an
  employer's perception that a person's use of
  alcohol or drugs makes him or her unfit to work.

13
Legal Responsibilities

• Employer can defend a discrimination complaint
  where employer can establish that a workplace
  requirement that is not directly discriminatory,
  but that results in a discriminatory effect, is a
  Bona Fide Occupation Requirement ("BFOR")
• (Section 15 of the CHRA)
• Employer must show that employee's disability
  could not have been accommodated without undue
  hardship on the part of the employer.
• Undue hardship is not the same as No hardship

14
BFOR

• To constitute a BFOR, a job requirement must
  satisfy the following three tests
• 1. Did the employer adopt the policy or standard
  for a purpose rationally connected to the
  performance of the job?
• 2. Did the employer adopt the particular policy
  or standard in an honest and good faith belief
  that it was necessary to the fulfillment of that
  legitimate, work-related purpose?
• 3. Is the policy or standard reasonably
  necessary to the accomplishment of that
  legitimate, work-related purpose?

15
Leading cases

• Canada (Human Rights Commission) v.
  Toronto-Dominion Bank, 1998 4 F.C. 205
  (F.C.A.)
• The Bank implemented a drug policy requiring
  mandatory drug testing by urinalysis of all new
  and returning employees.
• The Court found that the Bank's drug testing
  policy was not reasonably necessary or rationally
  connected to ensuring employee job performance.
  The Bank was, therefore, not able to make out a
  BFOR defence.

16
Cultural Responsibilities

• Employers consciously or unconsciously, through
  their action or inaction, adopt a stance or
  attitude towards drugs or alcohol in the
  workplace that becomes the culture of that
  workplace
• Eg dry camp, yet the supervisor brings out
  beer and pizza on a Friday night
• Eg zero tolerance at work, yet the annual
  conference features several receptions with
  alcohol served in the middle
  of the day or just before
  everybody drives home
  

17
Do as I say, not as I do

• The culture shift is a long process
• Walking the talk is not easy, and doesnt
  always look like what we think it does
• Where do we draw the line?
• Eg how do we justify the conflict between
  government regulations around drinking driving,
  when the government is the agency that sells
  liquor and controls its distribution and
  availability?
• Whats the message when our top executive gets
  caught and there are no consequences?

18
Moral Responsibilities

• Doing things because we are forced by law or
  regulation is not the same as doing them because
  theyre the right thing to do
• As an employer or supervisor how do we draw the
  line between the letter of the law, the spirit
  or intent of the law, and what we personally
  believe is right?

19
What do we hear?

• If I have to start drug testing Ill lose half
  my crew
• If a guy wants to do that stuff on his own time
  its none of my business
• What I do on my own time is nobodys business
• Work hard, play hard

20
How bad is it out there?

• According to SAMHSA (Substance Abuse and Mental
  Health Services Administration) in the US in
  2005
• The highest rates of current illicit drug use
  were among food service workers (17.4 percent)
  and construction workers (15.1 percent).  Highest
  rates of current heavy alcohol use were found
  among construction, mining, excavation and
  drilling workers (17.8 percent), and
  installation, maintenance, and repair workers
  (14.7 percent).

21
Is testing the answer?

• Current drug users were more likely to work for
  employers who did not conduct drug or alcohol
  testing programs.  Nearly a third of current
  illicit drug users said they would be less likely
  to work for employers who conducted random drug
  testing.
• SAMHSA 2005 

22
Quote from Lawson Lundell LLP

• The process of implementing a drug and alcohol
  testing program is full of potential pitfalls for
  any employer, including those in an industry
  where a safety-sensitive workplace environment
  provides a greater justification for such
  measures. In the current legal context any
  employer considering implementing or
  administering a drug and alcohol testing program
  must proceed with caution, having particular
  regard to the balance that must be struck between
  an employers occupational health and safety
  requirements and its legal obligations to protect
  an employees right to privacy and freedom from
  discrimination based on disability.

23
Pre employment testing

• In general, pre-employment drug and alcohol
  testing is not permitted since it cannot predict
  the future impairment of an employee while he or
  she is working. Because such testing does not
  establish whether a person will be incapable of
  performing the essential duties of the position,
  it cannot be justified as being reasonably
  necessary to accomplish the goal of hiring
  non-impaired employees.
• Lawson Lundell, Addressing Substance Abuse
  in the Workplace, 2005

24
Reasonable Cause or Post-Incident Testing

• Generally speaking, courts have upheld policies
  which require an employee in a safety sensitive
  position to submit to testing where there is
  reasonable cause to suspect that the employee is
  impaired by drugs or alcohol. For example, if an
  employee appears unable or unfit to perform his
  or her job and there are other circumstances
  leading to a reasonable belief that the
  employees behaviour or conduct arises from
  substance abuse, an employer may be permitted to
  require the employee to submit to testing,
  including drug testing.
• Post-incident testing may also be permitted in
  order to determine whether the employees
  condition contributed to an accident or near
  miss. In order for an employer to justify drug
  testing in those circumstances, however, an
  employer will have to demonstrate other
  circumstances leading to a reasonable suspicion
  that the abuse of drugs contributed to the
  incident.

25
Safety Sensitive vs non Safety Sensitive
Positions

• Different policy considerations apply for
  safety-sensitive positions than for
  non-safety-sensitive positions
• A safety-sensitive position is one in which
  incapacity due to drug or
• alcohol impairment could result in direct and
  significant risk of injury to
• the employee, others or the environment. Whether
  a job can be
• categorized as safety-sensitive must be
  considered within the context
• of the industry, the particular workplace and an
  employee's direct
• involvement in a high-risk operation. Any
  definition must take into
• account the role of properly trained supervisors
  and the checks and
• balances present in the workplace (Canadian
  Human Rights
• Commission Policy on Alcohol and Drug Testing).
• As a result of this distinction, some policies
  that are acceptable for safety sensitive
  positions are not acceptable for
  non-safety-sensitive positions.

26
Safety Sensitive Positions contd

• Drug and alcohol testing for certification for a
  safety-sensitive position may be permissible
  where it is part of a larger assessment to
  determine whether an employee or prospective
  employee is an alcohol or drug abuser.
• The Canadian Human Rights Commission takes the
  position
• that conducting automatic drug and alcohol tests
  as a part of a
• medical assessment for certification contravenes
  the spirit of
• the CHRA.
• The Commission suggests that testing for
  certification should
• only occur in limited circumstances, such as
  where the
• individual has disclosed an existing or past
  drug abuse
• problem or where a general medical exam provides
  reasonable cause to suspect such a problem.

27
Safety Sensitive Positions contd

• On the job random alcohol testing, where
  supervision is limited or non-existent, is
  permissible for safety-sensitive positions,
  provided the employer meets the duty to
  accommodate those who test positive.
• A breathalyser test is minimally intrusive and
  accurately
• measures an individual's present impairment
  level.
• Employees should be notified at the time of
  hiring that
• random alcohol testing is a condition of
  employment.
• Employer will be under a duty to accommodate the
  needs of those who test positive.
• Employer must ensure that accurate and reliable
  testing
• methods are used and that employees' rights to
• confidentiality are protected.

28
Safety Sensitive Positions contd

• Rules requiring employees in safety-sensitive
  positions to disclose present or past substance
  abuse problems are permissible.
• Employees should not be required to disclose past
  problems with alcohol or drugs that occurred so
  long ago that the employee's risk of relapse is
  no greater than the risk a member of the general
  population will suffer a substance abuse problem.
• For alcohol dependency, this period is 5 to 6
  years.
• For drug dependency, this period is 6 years.

29
For all other positions

• Random drug testing of any employee is not
  recommended, as it likely violates the CHRA.
• Random alcohol testing of employees in non-safety
  sensitive positions is not recommended, as it
  likely violates the CHRA.
• Alcohol testing post-incident and for reasonable
  cause is permissible for any position where it is
  necessary as one facet of a larger assessment of
  possible alcohol abuse.

30
Other positions

• Drug testing post-incident and for reasonable
  cause is permissible for any position where it is
  necessary as one facet of a larger assessment of
  possible drug abuse.
• Any reliance placed on the results of
  post-incident or reasonable cause drug testing
  should recognize that a positive drug test does
  not indicate present impairment and should only
  be used as one component of a larger
  investigation.
• If adopting a policy whereby some employees may
  be subjected to alcohol and/or drug testing,
  employees must be notified during the hiring
  process that they may be subjected to such
  testing.
• If implementing a policy with existing employees,
  provide them with reasonable notice of the
  implementation of the policy.
• Employers should encourage the use of supervision
  and peer monitoring to detect alcohol or drug use
  that negatively affects on-the-job performance.

31
Other positions

• Employers must accommodate the needs of employees
  with substance abuse problems up to the point of
  undue hardship.
• Accommodation should include referring the
  employee to a
• substance abuse professional to determine if in
  fact he or she is
• alcohol-dependent, providing the necessary
  support to permit
• the employee to undergo treatment or a
  rehabilitation program,
• and considering sanctions less severe than
  dismissal.
• A Workplace Alcohol Drug Policy should not
  include
• provisions for automatic loss of employment,
  reassignment,
• that impose inflexible reinstatement conditions
  without regard
• for personal circumstances. Such provisions are
  unlikely to
• meet the requirement to accommodate to the point
  of undue
• hardship.

32
Other positions

• An employer may be justified in temporarily
  removing an employee with an active or recently
  active substance abuse problem from a
  safety-sensitive position.
• Employee/Family Assistance Programs ("EFAPs") are
  personal assistance programs that help employees
  who have substance abuse or other problems. Some
  form of EAP should beimplemented along with a
  Workplace Alcohol Drug Policy.

33
Are policies the answer?

• The difference between a fully developed and
  declared policy and an ad hoc approach will
  show up when theres a catastrophic event
• Downfalls of ad hoc management
• - difficulty in justifying actions
• - explaining individual approaches
• - dealing with apparent inconsistencies
• - management actions and attitudes are
• challenged

34
Reasons to adopt clear policies

• Reduced alcohol consumption and drug use among
  employees produces
• Improved employee health
• Increases in productivity and human potential
• Heightened employee morale
• Reduced absenteeism
• Reduced employee turnover
• Reduced occurrences of workplace accidents
• Decreased workers' compensation, sick benefits
  and insurance claims
• More attractive working conditions for
  recruitment purposes

35
Reasons to adopt clear policies

• Scope for corporate liability regarding employee
  and public safety and the environmental impacts
  associated with accidents are reduced by
  implementing policies aimed at
• Creating a safer work environment
• Reducing potential for undetected on-the-job
  impairment
• Satisfying legal standards of due diligence
• Reducing potential for wrongful dismissal or
  human rights complaints
• Educating employees with respect to their role in
• successfully implementing policies

36
Effective policies

• For any policy to work there must be clear
  support from the top
• Managers and supervisors are backed up by their
  seniors
• Supervisors attitudes and management styles must
  be aligned with policies
• Eg company has non-smoking in vehicle policy
  supervisor jumps in pickup and tells employee to
  drive him to another site, and lights up. Whats
  employee supposed to do? Whats the message that
  supervisor is giving?

37
Leading cases

• Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d)
  18 (C.A.)
• Imperial Oil adopted a Workplace Alcohol
  Drug Policy principally targeting employees in
  safety-sensitive positions. Employees in safety
  sensitive positions were subject to
• 1. Random alcohol and drug testing, alcohol
  testing by breathalyzer and drug testing by
  urinalysis
• 2. Automatic dismissal on a positive test or
  other policy violation
• 3. Certification process to remain in or
  qualify for a safety-sensitive position,
  including a negative test for alcohol and drugs
• 4. Mandatory disclosure to management of current
  or past substance abuse problems
• 5. On disclosure, reassignment to a
  non-safety sensitive position
• 6. Reinstatement to a safety-sensitive
  position only on completing a company approved
  two-year rehabilitation program followed by five
  years of abstinence
• The policy also provided for pre-employment,
  post-incident and for
• cause alcohol and drug testing of all
  employees.

38
Entrop vs Imperial Oil

• The decision suggests
• Freedom from impairment by alcohol or drugs is a
  BFOR for
• safety-sensitive positions.
• Pre-employment and random drug testing
  requirements are not
• BFORs.
• Current methods of drug testing are not able to
  measure
• present impairment.
• Automatic dismissal is too severe a sanction for
  a positive test.
• Random alcohol testing requirements are BFORs for
  safety sensitive positions that are subject to
  little or no supervision,
• provided the employer meets its duty to
  accommodate the
• needs of those who test positive.
• Automatic dismissal is too severe a sanction for
  a positive
• test.

39
Entrop vs Imperial Oil

• Post-incident and for cause drug testing is
  permissible for employees in any position,
  provided it is necessary as one facet of a larger
  assessment of drug abuse.
• Testing for certification for safety-sensitive
  positions is permissible provided it is part of a
  larger assessment to determine whether an
  employee is abusing alcohol or drugs.
• Mandatory disclosure of current and past
  substance abuse problems is permissible for
  employees working in safety sensitive positions,
  provided that employees are not required to
  disclose problems occurring so far in the past
  that their risk of relapse is no greater than the
  risk a member of the general population will
  suffer a substance abuse problem.
• Imperial Oils reinstatement provisions were too
  onerous. The duty to accommodate requires an
  employer to take into account the individual
  circumstances of an employee when responding to
  the discovery of a current or past substance
  abuse problem.

40
Waking the sleeping giant
We only see the tip of the iceberg now, or in our
workplaces, and we really dont know or want to
know about the monster that lies beneath the
surface
41
Why dont we have that discussion?

• We dont know enough about it
• So much is up in the air with courts
• None of us wants a Human Rights case
• So much is up to the interpretation of legal
  people
• It costs so much to have all this stuff in place
• Culturally we still see addiction as a choice,
  rather than a disability
• We dont think its fair to have to accommodate
  an adult who should be taking personal
  responsibility for his/her actions

42
Whats the smart thing to do?

• Stay current on legal decisions and precedents
• Access best practices information on a regular
  basis
• Dont cookie cutter someone elses program,
  especially if it comes from a different context
  customize it to fit your companys scope of
  activities
• Recognize that good policy and practice will
  bring a return on investment

43
Whats the smart thing to do?

• Get into a Health Plan for your employees that
  includes an EFAP
• Get your supervisors/managers trained in dealing
  with the issue
• Get copies of 10 Steps for Employers
• Utilize the resources available from the BC
  Council on Substance Abuse
• Take it seriously and deal with it in a formal
  way now, before you have to deal with it in Court
  or at a Coroners Inquest

44
Thank You

• Our lives begin to end the day we become silent
  about the things that matter
• Martin Luther King
• A copy of this presentation and a complete list
  of the references is available upon request from
  the BC Council on Substance Abuse