Recent Alberta ruling highlights challenges for employers handling workers with substance use disorders in safety-sensitive positions
A recent Alberta human rights tribunal ruling highlights that even in safety-sensitive environments, terminating a worker who has, or is suspected to have, a substance-use disability is a risky move for employers.
The decision, which involved a family-run construction business, found the employer had breached its duty to accommodate before termination even though there was a documented history of aggressive and unsafe behaviour by the employee.
Joe Oppenheim, partner with Carbert Waite in Calgary, explains that employers must start with the basic principle that addiction is a protected disability, even in high-risk settings.
“Any disability at all is protected, whether it be because of a mental health issue or any other disability. [In] the big picture, there's no difference in a safety-sensitive position,” he says.
“If you've got a substance or … intoxication issue, then it's going to impact the way in which you balance, on the one hand, the duty to accommodate the employee and, on the other hand, maintain a safe workplace.”
Balancing duty to accommodate and workplace safety
Oppenheim says that balance requires two distinct steps: immediately addressing safety risk and then considering accommodation. In a safety-sensitive environment, he says, the first step is to take the worker out of harm’s way.
“If the employer observes the employee being unsafe, doing something that's unsafe for whatever reason, you need to remove that employee from that safety-sensitive situation and then deal with that employee accordingly,” he outlines.
“When it comes to substance abuse, the norm is that someone who has a substance addiction issue is not likely forthcoming with it until something like this happens, and only then might the employee raise the question of an addiction.”
For this reason, Oppenheimer stresses that employers – especially those in potentially dangerous sectors like construction, mining and energy – should not wait for a crisis before dealing with addiction and safety.
“The advice that I would give anybody operating in the construction world is to be proactive,” he says.
“Set yourself up with appropriate policies that make clear … [employees] can safely disclose to the employer a disability, an addiction, and be set up with the appropriate support, and to have that support program as part of your benefits package if possible.”
On testing, he says preemployment and, in some cases, random testing can play a role in safety-critical operations, “although that's a tricky issue.”
Duty to inquire before termination in safety sensitive roles
One of the more difficult questions for employers is when the duty to inquire is triggered, Oppenheim explains. Basically, when it must go beyond what an employee has disclosed and determine if there is a potential substance use disorder present.
The timing of that inquiry can be critical, he says – particularly when there have been warning signs before a serious incident.
“You have to take a hard look at what was observable, because an employer does have a duty to inquire about any prospective disability if it's obvious,” he says.
“[If] there's some evidence that this person was exhibiting signs of a disability, then it's not open to the employer to sit on their hands and simply assume that there's no issue here. You have to actually inquire as to whether there's a disability when it's that obvious, and see whether or not an accommodation can be made.”
Oppenheim notes that the duty to inquire is not unlimited. Clear, objective evidence of a possible disability or an explicit disclosure is what activates the accommodation process; absent that, the focus can remain on conduct and safety rules.
Documentation and accommodation in safety sensitive workplaces
For Oppenheim, the tribunal decision illustrates how closely adjudicators will examine an employer’s documentation — from internal emails and letters to medical reports and notes of conversations — when deciding whether an employer genuinely attempted to accommodate an addiction-related disability before moving to termination.
“If you find yourself having to deal with an employee who's got a substance issue, have a clear paper trail,” he says.
“Set yourself up so that you can demonstrate that you as the employer have made good faith and reasonable efforts to accommodate any disability after it came to your attention. That requires some checking in with the employee, getting the employee to submit appropriate medical information to be able to demonstrate that they are getting the treatment that they need and that they are able to return to work.”
Plus, employers should think creatively about how to keep workers connected to the organization while they receive treatment Oppenheim adds.
“Be open minded about what kinds of accommodations you can provide the employee in the interim, not everything is safety sensitive,” he says.
“To keep them employed and keep them part of the team and earning until they are safely treated and able to return back to the safety sensitive position.”
