EMC teamed up with the Regional Municipality of Durham to offer our manufacturers an opportunity to review the legalities around Drug and Alcohol Testing, Health & Safety Due Diligence and Accommodating Psychological Disabilities.
Occupational health and safety (OHS) due diligence essentially means taking “reasonable care” to ensure no harm comes to workers at a work site. This duty — as outlined in OHS legislation in jurisdictions across Canada — of taking “reasonable care” applies to employers, workers, contractors and suppliers. The “employer” may be a company, a manager or a supervisor.
Drug and Alcohol Testing
- Reasonable Cause: may require testing where the circumstances give the employer reasonable cause. e.g. employee in safety-sensitive position comes to work and appears to be impaired
- Post Incident: after an accident, dangerous incident or near miss, testing may be justified where there is reason to believe an employee's acts or omissions could have been a contributing factor and that there may have been impairment at the time of the incident
- Random: here is where problems can arise. Only narrow and extreme circumstances, otherwise it is not permissible in Ontario workplaces. Other than return to work/rehab agreements, there must be evidence of substance abuse problem among the employees subject to testing to justify. Employers should try other methods short of random testing. Sniffer dogs have been found to be akin to random testing.
- Pre-Employment/Pre-Access: OHRC/CHRC policy states pre-employment drug and alcohol testing should not be conducted. Pre-employment permissible only in very limited circumstances (e.g. drivers crossing U.S. border) For pre-access, it will not be sufficient for an employer to cite general concerns about safety as a justification for the imposition of pre-access drug testing.
A fine balance of individual privacy vs a safe healthy workplace. Employers are entitled to ensure employees are not impaired. If addicted, you can remove them workplace and/or test for it. Substance abuse is recognized as a disability therefore can be considered a discrimination.
Health and Safety Due Diligence
Due Diligence is the obligation to take every precaution reasonable in the circumstances to ensure that your obligations under the legislation are met. Once a breach of the legislation has been established, the onus shifts to the accused to prove, on the balance of probabilities, that every reasonable precaution was taken to prevent the breach from occurring.
How do you prove the defence? Oral testimony, Documents, Pictures, Cross-examination. “Reasonable Care” depends on the facts of each individual case and is considered industry standards. What is Reasonable are the steps taken before the events and employers are expected to use their knowledge of the workplace and the information available about their workplace hazards to develop responses to hazards and potential hazards. Training is critical! Training of all policies and procedures with consistent enforcement for a successful due diligence position. Postings are good yes, but you need the training and enforcement with documentation – encourage safety!
Documentation can be meeting agendas, notes from the meetings; logbooks and pictures of guards applied etc. If there is no documentation it didn’t happen in the eyes of the court. Enforcement including discipline – courts want to see proof. Training matrixes and disciple or council letters. Courts and arbitrators see discipline as just cause for safety infractions.
Accommodating Psychological Disabilities
According to the Human Rights Code, employees have the right to be free from discrimination and harassment in employment. Disability includes “mental impairment” and “mental disorder” and employers have a duty to accommodate. Often the employee is unaware or not willing to seek help. Liability can be substantial – over and above wages, includes “injury to dignity, feelings, self-respect.”
Common examples of accommodation;
- Modifying job duties
- Modified hours of work
- Time off for treatment
- Multi-party process – each has responsibilities
Responding to Accommodation Requests;
Step 1: Sufficient Medical Information? Get as much information at this step as you can from the Doctor. Most important step. Two ways to do this; 1. Ask for medical reports to send for more medical review (need consent) 2. Send employee directly to an independent medical examiner (IME) more expensive but a good tool – use as a last resort. It’s a good tool to get the employee to see a specialist, a doctor, works as a catalyst to get the employee to seek help.
Step 2: Determine reasonable accommodation. Employers have the right to determine the accommodation. You need the medical evidence and restrictions in order to make the correct assessments. Ie: what can the employee do that doesn’t require lifting 50 lbs? Beware the dictation from the employee for what they can/cannot do. If the employee won’t give consent to information or won’t provide the information, then the company may not have enough information to make an accommodation. Ensure there is a causal connection between the disability and the request for accommodation.
Step 3: Ensure adequate support services. Be conscious of managing stress.
During this SIG Vince lead us through some actual court examples on these topics. The attendees took advantage of the opportunity to ask some pointed questions; some examples were around prescription drugs affecting level of impairment, the impact of legalized marijuana, addictions to a drug you are manufacturing, alcohol testing, dealing with visible dementia (aging workforce), services to help provide resources such as H&S consultants etc, Doctors notes stating the employee is fine but you notice mental health issues/performance problems. It was an informative session.
A special Thank you to Eileen Kennedy of Durham Region www.durham.ca for partnering with EMC, and to Vincent Panetta of Hicks Morley, for your time, ease and expertise in advising our manufacturers. This presentation is available on the Durham Region Consortium page/Member Files.
Vincent Panetta, Partner for the Hicks Morley Kingston office is an experienced labour and employment lawyer advising a range of employers in the public and private sectors on all matters of employment law, labour relations, privacy and human rights. www.hicksmorley.com