     |
  |
 |
 |
|
|
               |
 |
|
DRUG AND ALCOHOL POLICIESWith the recent focus on safety in the industry, some licencees are implementing drug and alcohol policies for their employees, contractors, and even visitors to their licence areas within the forest. As well, we have seen licencees require that contractors establish health and safety policies for their employees and subcontractors. Those policies may impose a duty to scrutinize for drugs and alcohol. Establishing these sorts of policies can be a bit of a legal minefield. There is a balance of competing interests to be arrived at. On the one hand, employers, co-workers, and members of the public expect workers to be sober when working. On the other hand, workers should not lose their jobs because they have drug or alcohol problems entirely unrelated to their job performance. Each province, as well as the federal government, has a Human Rights Code. It is illegal to discriminate based upon a disability or a perceived disability, and that includes discrimination because an employee has a (past or present) dependence on alcohol or a drug. Even the perception that a person's use of alcohol or drugs makes him unfit to work can be a human rights violation. Let me clarify by saying that this article addresses employees in "safety sensitive positions". So, for example, a truck driver or a machine operator who places himself or others at risk if impaired by alcohol or drugs fits within this category. Different rules would apply, for example, to a member of the office staff. Many readers may be aware that the U.S. government has required a drug and alcohol policy, with random testing, for motor carriers that haul into the United States. For those drivers that haul into the United States, this type of testing would be a lawful "bona fide occupational requirement", and my article does not address these drivers. Obviously, in a safety-sensitive job one does not want to have an employee whose ability to function is impaired by alcohol or a drug. For a concern to be legitimate, there must be a connection between the impairment and the job. For example, an employer cannot complain about a weekend drinker who is always sober while at work. Because of the way that the body eliminates alcohol, a positive test result is a strong indicator of there being an impact upon job performance at the time of the test. With respect to drug consumption, however, the link is not so easy. The scientists cannot seem to link the drug test results to a degree of impairment. Nor can they determine how recent the drug use was. This is what makes testing for drugs particularly problematic. When is it proper to test for drugs and alcohol in safety-sensitive positions? Again, it's easier to justify testing for alcohol, and in safety sensitive positions that may be done randomly. It may also be done for reasonable cause (i.e. reasonable to suspicion that the employee's performance is affected by alcohol), and that includes post-accident situations and cases of near misses where the involvement of alcohol is suspected. Because of the shortfalls of drug testing, random testing is probably not acceptable, even in safety-sensitive positions. Reasonable cause and post-accident testing is lawful, as long as it's part of a larger program of medical assessment, testing, and support. What happens if an employee tests positive? That depends upon what the policy says, and it depends upon the relationship between the test results and job performance, and also depends upon the employer's ability to accommodate the disability with a rehabilitation program. The Human Rights Commissions would like to see employers provide opportunities for treatment and rehabilitation and, at the same time, move their employees into less safety-sensitive positions until rehabilitation is complete. Obviously that can be costly to an employer, particularly a small employer, and the employer may be exempted from that obligation if it can prove "undue hardship" on itself for such a policy. Some employers say that they practice "zero tolerance", and that can be hard to justify in front of a Human Rights Tribunal. The employee must first be aware of the zero tolerance policy; it cannot be a policy imposed after the fact. Second, the employer must be in a position to link the test results with the employee's job performance, and a mere positive reading for past drug use (with nothing more) probably fails to justify termination. (It may justify a further, more intensive monitoring of the employee, however, to see whether the link can be later established.) Importantly, the employees must know from the beginning what their drug and alcohol policy obligations are. If the employer waits until after an accident occurs to advise the employee as to what the policy is, by then it is too late. The policy should be carefully drafted. In all cases, it is important to be associated with a medical professional who can examine the test results to give the employer appropriate advice. There are companies that provide these testing services in Canada. Most of those provide testing services to U.S. bound motor carriers. If an employer truly wishes to implement a drug and alcohol testing program, then it is necessary to have the professionals on board to administer the tests and analyze the results. John Drayton is a Kamloops lawyer practicing in the areas of motor transport and forestry law. Back to Articles Index
|
