Addictions, Mental Health, and Social Media - these are daily struggles for some employers.
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. Caution on the safety-sensitive positons as they are very limited positions. Motorized vehicles, operating heavy equipment/large machinery that could cause risks.
- Post Incident: after an accident, dangerous incident or near miss.
- Random: Most cause for tribunals/arbitrators as they are reluctant to justify this type of testing. Only narrow and extreme circumstances, otherwise it is not permissible in Ontario workplaces.
- 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. Employers are best to err on the side of caution, if you suspect an employee is impaired; arrange for a ride home. If you are unsure about the impairment, typically you would pay them for their shift however if there are true signs, typically this is unpaid time and considered disciplinary action.
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.
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.
Twitter, Facebook and Managing Social Media in the Workplace
3 areas of concern are;
- Employees publishing as agents of an employer (Social Media use on Behalf of the Employer)
- Control the message
- License your “deputized communicators”
- Use the traffic light model to control content Grn: no approval req’d Yellow: approval req’d Red: no
- Create a framework for editorial control
- Employer use of social media in hiring decisions
- Do we need to search this candidate’s online profiles?
- When should we complete our social media searches? (the later the better)
- Employees publishing as individuals but about things related to their work (Off-Duty Social Media Use)
- Discipline for off-duty conduct is justified where: harms reputation or product, unable to perform duties, reluctance of others to work with employee or confidential information is disclosed.
We thank our host, Invista Canada for offering this session and to Vincent Panetta of Hicks Morley Kingston office.
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