Canadian Occupational Safety (COS) magazine is the premier workplace health and safety publication in Canada. We cover a wide range of topics ranging from office to heavy industry, and from general safety management to specific workplace hazards.
Issue link: https://digital.thesafetymag.com/i/356771
20 Canadian Occupational Safety www.cos-mag.com By Vanessa Chris W hen does an individual's right to privacy trump another's right to a safe workplace? An employer who has ever had to deal with an employee's drug or alcohol addiction, may have struggled with this question—along with the moral and ethical dilemmas that come with it. e question might get a bit easier to answer in the near future, depending on how the Supreme Court of Canada and the Alberta Labour Board rule on two high profi le legal cases—one involving New Brunswick's Irving Pulp and Paper, the other involv- ing Suncor Energy in Alberta. e rulings stand to determine the future of random alcohol and drug test- ing in Canadian workplaces and, indirectly, further clarify the gray area surrounding on-the-job drug and alcohol addiction. Testing: What's allowed? In Canada, drug and alcohol addiction falls under the Human Rights Code as a disability. Employers are expected to accommodate an employee with an addiction to the point of "undue hardship." e thing is, because of the nature of these disabilities, they're o en diffi cult to identify. "Drug and alcohol addiction is one of the most challenging disabilities in the work- place, because there is a certain amount of denial in this addiction," says Lisa Bolton, a lawyer with Sherrard Kuzz. "Absenteeism can be an indicator of a drug and alcohol addiction, but it could be a sign of other things too. Even if an addiction is disclosed, it's still very challenging for an employer because relapses are o en not disclosed." For an employer trying to eliminate such a risk from its plant fl oor, testing would appear to be the best option—but, due to privacy concerns, there are limits to how far one can go. Drug and alcohol testing is only legally allowed if the individuals being tested are employed in a safety-sensitive position, and even then, these tests are usually limited to post-incident, suspicious cause and pre-access. Random alco- hol testing is permitted in certain situations, but random drug testing is currently illegal—unless you're a cross-border bus or trucking company governed by U.S. regulations. e rules also change depending on whether the working environment is unionized or non-unionized, and if the testing is part of a return-to-work program. In the Irving and Suncor cases, both companies feature extremely safety-sensi- tive positions in extremely dangerous workplaces. While the oil sands industry—to which Suncor Energy belongs—has been known to have a problem with employee drug and alcohol use, Irving Pulp and Paper didn't have a similar track record—it is merely trying to curb alcohol use in the workplace before a major accident occurs. Both companies are trying to implement random testing for individuals in safety- sensitive positions with the intention of deterring and identifying potential risks. e main diff erence is that Suncor is wishing to implement random drug and alcohol testing, while Irving is fi ghting solely for random alcohol testing. e Communications, Energy and Paperworks Union has opposed both compa- nies' attempts, citing such safety programs would infringe on an employee's privacy and human rights—hence, the reason these cases are being heard in court. Setting a strong foundation Accommodating a drug or alcohol addiction to the point of undue hardship is prob- ably the most tempting reason for an employer to look the other way. e term "undue hardship" can be extremely vague. When used in reference to a disease that is prone to relapse, it's hard to determine how long the employer will have to accommodate such an employee. It's even trickier if the employee doesn't reveal his or her disability. "One of the biggest legal challenges for employers is determining when enough is enough. How much accommodation is required before they reach the point of undue hardship?" says Bolton. "It depends on the specifi c workplace. Obviously, a small employer that is having problems juggling schedules will reach the point of undue hardship before a larger corporation." If an incident occurs and it's found that a company looked the other way, that company can be found criminally negligent. To add to the threat of criminal negligence, the cost of a drug and alcohol problem in the workplace can be astronomical. A study by the National Institute of Drug Abuse revealed the average cost of drug abuse per employee annually is $10,000—a result of employee turnover, workers' compensation claims, increased insurance premiums, absenteeism, employee the , violence on the job and use of health-care benefi ts. So how can you reduce the use of drugs and alcohol in your workplace as EQUIPMENT AND TECHNICAL SERVICES FIRE PROTECTION SERVICES CONSULTING AND TRAINING Think prevention. Quebec: 1 866 861-8111 Central Canada: 1 800 465-6822 Western Canada: 1 888 425-9505 spi-s.com As Canadian companies struggle with the legal and safety implications of managing addiction in the workplace, two landmark cases are promising to help chart the way forward SOBRIETY TEST