Substance Abuse and Accommodation

One of the primary differences between American and Canadian workplace law is the treatment of substance abuse. In the United States, employees who are suspected to be alcohol or drug dependent are subject to random drug and alcohol testing and summary termination.

The view in Canada is different. Such dependencies are viewed as conditions of disability. Human rights legislation protects individuals on the grounds of disability which is defined to include those who suffer from drug and alcohol dependency.

What if the employee is found to have used drugs or alcohol? Again, unlike the American experience, the employers in Canada would generally be prohibited from dismissing the employee. In addition, the employer would have the duty to accommodate the employee. Such accommodation would include time off for rehabilitation and medical assistance; providing access to employer resources such as the employment assistance programs; and allowing employees to use vacation or short-term disability time for recovery.

Random testing of employees is also generally prohibited under human rights legislation. If an employee is involved in a workplace related incident and alcohol and drugs are suspected as causes, the employee may be subjected to testing.

If an employer acts precipitously by summarily dismissing an employee who is alcohol or drug dependent, the employer is exposed to the potential liability of a human rights complaint. If the allegation of discrimination is proven, a human rights tribunal has the power to reinstate the employee to his or her original position together with full back pay and other general damages.

Thus, employers would be wise to consult employment law counsel in dealing with drug and alcohol issues in the workplace.

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