Drunk or high at work: Does it matter which? (or how?)

There's no shortage of ways employees can get intoxicated — but should the employer's reaction vary on the substance?

By Jeffrey R. Smith ([email protected])

There's no shortage of ways people can get intoxicated.

Some are legal and easy to get, such as over-the-counter medication and alcohol; some are legal but more strictly regulated, like prescription medication; while some are outright illegal. If someone is intoxicated from one of these substances in circumstances where they shouldn’t be, does it matter what they’re on?

Employers in Canada have been trying to push drug and alcohol testing of employees to be accepted as an appropriate practice at any time. While the decisions of courts have been mixed, employers are usually more able to justify it if there are safety concerns. These safety concerns stem from the affects intoxicants have on someone’s functional abilities. If someone is operating heavy machinery or piloting an airplane, any level of intoxication is going to cause a safety hazard.

Even if there isn’t a safety risk, employers don’t want employees to be intoxicated on the job because it would affect their ability to do their job properly. If productivity is affected, so is the bottom line. So it makes sense that intoxication at work could be grounds for some sort of discipline. Discipline could be more serious if the intoxication is from illegal drugs.

But what if an employee has special permission to have something that’s normally illegal, like medical marijuana? Should the employer treat it as having an illegal drug or more as if the employee is drunk? What about a strong controlled drug the employee has a prescription for, but is using improperly? Is this more serious than drinking alcohol right before going to work? Is possessing drugs the employee has special permission for more serious than have a bottle of booze at work?

Regardless of permission or the legality of an intoxicant, employees shouldn’t knowingly ingest them right before going to or while at work. Should the nature of the intoxicant or whether the employee should have it in her possession matter when considering what discipline to impose?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that covers workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

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