Drugs and Alcohol in the Workplace

Transcription

1 Drugs and Alcohol in the Workplace Managing addiction issues Implementing effective and enforceable policies February 2016 Michael Wagner Julie Menten

2 Drugs and Alcohol in the Workplace Managing addiction issues Implementing effective and enforceable policies February 2016 Agenda Introduction Review of addiction Crafting good policies Issues in implementing policies Relevant caselaw Questions 2 Addiction is complex Progressive invisible disability Impacts all aspects of the person s life Often severe by the time it is noticeable at work Comorbid mental health problems Depression, anxiety, PTSD Stigma - still seen as a moral issue Denial of the problem The high functioning alcoholic 3 1

3 Invisible disability What the employer sees Misconduct: Higher than average absenteeism (often after payday or weekends) Higher than average lateness/tardiness Chronic performance issues Accidents or near misses (beyond the average) Sleeping at work Change in behaviour Mood changes Takes breaks in the car Smell of aftershave or breath mints Interpersonal issues 4 Costs of addiction Lost productivity Chronic performance issues; Interpersonal conflicts; Absenteeism; Injuries &/or fatalities; Theft; Low employee morale; Turnover; and/or Increase in benefit costs, legal liability and workers compensation costs 5 Continuum of Drug & Alcohol Problems 6 2

4 Balancing Employer s rights and responsibilities Duty to ensure the health & safety of employees Duty to remedy any workplace conditions that are hazardous to the health and safety of employees Impaired workers can be a hazard Right to receive work for wages 7 Employee s rights & responsibilities Employees have a right to work free from discrimination and a right to privacy Human Rights Code Personal Information Protection Act Policies assist employers when balancing these rights and responsibilities 8 Benefits of a good policy Assists employer in balancing rights Communicates the employer s position on alcohol & drug use Differentiates between culpable & nonculpable misconduct Provides a procedural roadmap for drug testing and investigations Helps to protect employer from legal liability 9 3

5 Limits of a good policy It isn t bullet proof Adjudicators can find that the application of the policy is discriminatory i.e. zero tolerance doesn t meet undue hardship test Law still developing 10 Components of a Good Policy Introduction Purpose Scope Application Assistance Procedures Investigation Discipline Privacy (confidentiality) 11 Do not include A strict checklist of steps A specific penalty for violations i.e. automatic termination Provisions that bind you to a specific procedure retain some discretion Improper statements of zero tolerance Unreasonable rules KVP principle 12 4

6 Introduction Sets out the Employer s expectations for employees Fit for duty Free from any negative impacts associated with alcohol or drug use or their after-effects 13 Purpose To balance performance expectations/safety with human rights and privacy rights To outline the requirements of a safe work environment and procedures that will be followed Particularly important for safetysensitive worksites 14 Scope Sets out who the policy applies to Is it all employees? Independent contractors? While engaged in company business While working on company premises Any other situations? 15 5

7 Application Sets out the expectations of conduct how the policy will be applied Fitness for work Illicit drugs Legal drugs (medications) Alcohol exceptions for social events? 16 Assistance Acknowledge the legal duty to accommodate disability Outline any employer-provided assistance Employment assistance programs Short-term/long-term disability benefits Address treatment options and early intervention Want to encourage people to get help but Not obligated to pay for treatment 17 Investigations Set out procedures to investigate alcohol/drug related misconduct Reporting obligations Unfit for work Drug & Alcohol Testing Under what circumstances Possession of illegal drugs 18 6

8 Drug testing SCC has held that random, unannounced drug testing, even in a dangerous workplace, is only permitted in three situations: Accidents/near misses Reasonable cause Accommodation plans Return to work (post-violation/posttreatment) 19 What is reasonable cause? Reasonable basis to suspect alcohol or drug use or possession Observed use or evidence of use of a substance (smell of alcohol) erratic or atypical behaviour; changes in employee s physical appearance; changes in employee s behaviour; or changes in the speech patterns of the Employee 20 Violations Consequences for violations of policy Include failure to test Discipline should be proportional to: Nature of the violation; Severity of the violations; and Taking into account all of the circumstances Terms for continued employment 21 7

9 Confidentiality Privacy considerations Drug and alcohol testing Expert reports Important to maintain confidentiality Only shared on need to know basis for the purpose of determining culpability, return to work, and accommodation efforts 22 Considerations when implementing the policy Not all misconduct is the same Must determine whether conduct is: Culpable Progressive discipline Non-culpable Human rights considerations Hybrid Consider culpable and non-culpable 23 Kemess Mines Ltd. V. International Union of Operating Engineers, Local 115 (Gardiner Grievance) affirmed 2006 BCCA 263 Mine was safety sensitive Zero tolerance policy of alcohol and drug use issued jointly with union Grievor caught smoking marijuana at the mine did not seek help Employment terminated 24 8

10 Kemess Mines After termination grievor went to treatment, had one relapse but had been clean since Testified he did not know he was addicted until he sought treatment Expert report confirmed cannabis dependence Prognosis was good if he followed treatment recommendations 25 Kemess Mines Arbitrator found it was a hybrid case Grievor s actions were compelled by his addiction Replaced termination with 10-month suspension and conditional reinstatement 26 The lesson is Be careful when disciplining Even if you have a great policy What looks like simple misconduct may be caused in part or in whole on the basis of a drug or alcohol problem 27 9

11 Things to think about When faced with employee misconduct that could give rise to discipline consider: Is the conduct culpable, non-culpable or a hybrid? How do you know? Expert reports very useful If it is non-culpable or a hybrid, what are the human rights considerations? 28 Human Rights Considerations 29 Alcohol & drug dependence are disabilities But alcohol and drug abuse is not Duty to inquire Right to clear, current & cogent medical info Triggered when employer knows or ought to know employee is dependent Employer must accommodate disabled employees short of undue hardship Considerations investigation Get expert opinion on whether employee is dependent or not Preferably physician with specialty in addiction Conclusion on dependency will determine consequences Return to work on conditions versus Termination for cause 30 10

12 Considerations - Return to work 31 Your employee has completed treatment Now what? Drug testing permitted (return to work post-treatment) Expert report with recommendations Often medical monitoring months Return to work or accommodation agreement Return to work realities Be prepared for relapses Possibly several Plan for them and manage them Relapse or Ulysses agreements Medical monitoring can help Multiple relapses can lead to undue hardship But not always 32 How people change 33 11

13 How people really change Considerations when drafting agreements Agreements are not bullet proof Relapses are expected and should be managed No magic line for when undue hardship is reached Employees can be: Reinstated Given another last chance Provided with a different non-safety-sensitive position 36 12

14 Components Return to work/accommodation Agreements Terms regarding treatment compliance Based on expert s recommendations Consequences for violations Last Chance Agreements Used after several relapses Strict terms based on expert recommendations Termination for any breach 37 Seaspan v. International Longshore and Warehouse Union (G.H. Grievance), 2014 B.C.C.A.A.A. No. 108 Employer was safety sensitive Comprehensive Substance Use Policy Included drug & alcohol testing on reasonable cause Mandatory disclosure of alcohol & drug dependency problems 38 Seaspan v. International Longshore and Warehouse Union (G.H. Grievance) Grievor was addicted to alcohol and drugs Self-disclosed after employer s courage to care program & attended treatment Returned to work on conditions While on medical monitoring was sober (two years) 39 13

15 40 Seaspan v. International Longshore and Warehouse Union (G.H. Grievance) After program he relapsed three times Expert deemed him not fit for safetysensitive work Reached a settlement agreement Required that he abstain for 27 months Immediate termination if he relapsed Relapse caught by random testing Employment terminated pursuant to the agreement Seaspan v. International Longshore and Warehouse Union (G.H. Grievance) Arbitrator held that the termination provision was unenforceable Undue hardship reached for safetysensitive work Employer did not reach its duty to accommodate non-safety sensitive work Employee reinstated to non-safety sensitive position 41 Final Considerations Policies are complex and the law is constantly changing Take context into consideration One size does not fit all Get legal advice! Update your policy often Even the best policy is not bullet-proof 42 14

16 MICHAEL WAGNER JULIE MENTEN Roper Greyell LLP Employment + Labour Lawyers Thurlow Street, Vancouver, BC V6E 0C5 T F ropergreyell.com The purpose of this presentation is to provide an overview of this area of the law. This does not by any means Your workplace. constitute a full analysis Our business. of the law or an opinion of Roper Greyell LLP or any member of the firm on the points of law discussed. Roper Greyell LLP