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Impairment at work: Drunk or sleepy?

Employees can be impaired at work for different reasons, but when safety is an issue an employer still has to act

By Jeffrey R. Smith

For employers who run workplaces with potentially dangerous equipment or materials, it’s of upmost importance for them to ensure employees are functioning to the best of their ability.

There’s an ongoing debate over the viability of drug and alcohol testing for employees in safety sensitive positions that was recently put to rest — at least temporarily — in legal circles by the Supreme Court of Canada. The top court ruled the benefits of such testing did not outweigh the privacy rights of employees. However, employers can often mete out discipline or even fire an employee in a safety sensitive position if there is good evidence the employee is intoxicated.

There have been many cases where a supervisor has detected evidence of drug or alcohol use while on the job — an employee caught with marijuana or who has alcohol on the breath. For an employer with a dangerous workplace, it can’t take any chances. It has to act. However, what about other forms of intoxication that can affect an employee’s ability to perform her job that don’t include drugs or alcohol?

Last year, an employee at a Saskatchewan oil seed crush plant was fired after his car went off the road. A breathalyzer test revealed his blood-alcohol level was 0.045 milligrams per 100 millilitres — not enough to be charged with drunk driving, but enough to have his driver’s licence suspended.

For the employer, this was enough to show the employee was intoxicated — a big no-no since the employee was a shift leader at the plant who worked with large machinery and explosive solvents. The employer had regular safety training and clear policies about on-duty impairment. The employee acknowledged what he did and his employment was terminated (Kish and LDM Yorkton Corp., Re, 2013 CarswellNat 2895 (Canada Labour Code Adj.).

As it turned out, the employee had been up most of the previous night with a teething child and didn’t get much sleep. Before his scheduled shift, he had a drink of hard liquor, which he later characterized to a co-worker as “a couple of drinks before work.” The employee obviously should not have done this right before his shift and the employer had clear evidence there was alcohol in his system that was enough to have his licence suspended. However, the circumstances raise the question regarding the source of the employee’s impairment.

The employee did not get much sleep before his shift. There are studies that show a lack of sleep can cause a certain level of impairment. We’ve all tried to get by on little sleep for whatever reason and it’s pretty obvious that, in such circumstances, people don’t function at their best. In the case above, it’s possible that even if the employee didn’t have anything to drink, he could have run his vehicle off the road due to simply being tired and losing his focus. There have been many cases of drivers falling asleep at the wheel. But if that was the case, how should the employer handle such impairment?

If an employee in a safety sensitive position shows up for work tired and has difficulty staying alert, that can be just as dangerous as an employee who’s consumed drugs or alcohol. In such situations, employers would have to rely on observation of the signs of impairment — perhaps seeing if the employee is groggy or rubbing her eyes — much as they would trying to detect the smell of alcohol or drugs.

And if an employee shows up impaired due to lack of sleep, how should the employer handle it? Often, the employee can’t help being tired if she couldn’t get to sleep, so discipline would seem to be unfair. But what if the employee chose to stay up late? Should they be held accountable for their impairment due to lack of sleep?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

© Copyright Canadian HR Reporter, Thomson Reuters Canada Limited. All rights reserved.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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