It’s a question that managers will hopefully never face, but it pays to be prepared: What happens when an employee shows up for work visibly intoxicated? And what if that employee happens to be an airline pilot attempting to fly a passenger plane? Needless to say, it gets complicated from an employment law perspective.
Such was the case in January when a Sunwing pilot was escorted off a plane after allegedly passing out at the controls while readying for a flight. He was subsequently charged and the case is now proceeding through the courts. In Canada, pilots are not permitted to drink within eight hours of a flight.
Unfortunately, the idea of an employee showing up for work while under the influence is well within the realm of possibility for many employers.
According to Toronto’s Centre for Addiction and Mental Health, one in five Canadians suffers from an addiction or mental illness. The estimated economic cost of mental illness in Canada is about $51 billion per year—including everything from lost productivity to workplace inefficiencies—the CAMH estimates that mental health challenges (which includes addiction) sideline about 500,000 employed Canadians each week.
Those are staggering numbers.
Of course, it raises a major predicament for employers. Courts have determined that employees who show up for work while intoxicated can be terminated for just cause and without notice. However, human rights tribunals across the country count addiction as a disability. Employees with disabilities are entitled to workplace accommodation to the point of undue hardship—or an unreasonable financial burden on their employers—meaning that substance abuse can trigger an employer’s duty to inquire and determine whether employee accommodation is required.
In other words, it can be extremely difficult to terminate an employee once a chronic addiction has been identified. The Ontario Human Rights Commission, for example, has produced extensive guidelines to regulate the use of workplace drug and alcohol testing. Among other points, the tests must be used “only in limited circumstances” and put in place after “alternative, less intrusive methods for detecting impairment and increasing workplace safety have been explored.”
If your organization is engaged in safety-sensitive work such as construction or the airborne transport of large numbers of people as in the case of the Sunwing pilot, then implementing a drug and alcohol testing policy could be justifiable.
But even when found to be intoxicated, employees can’t be punished. Testing can only be used to assess an addiction. In addition, employers face ongoing challenges with these policies due to testing veracity.
As outlined in Ontario’s guidelines, testing must be ‘highly accurate’ to measure current impairment. The issue with drug and alcohol testing is that it’s not always a reliable indicator of present intoxication, leaving testing methods open to legal scrutiny.
Of course, there’s also the issue of employee morale and even employer branding. Most top performers frown upon policies that involve regular blood testing, making recruitment and retention a challenge for such employers.
The bottom-line: workplace drug and alcohol testing is permitted. But its use is so limited and tightly governed, and its very feasibility across most organizations is so questionable that these policies are rarely implemented.
The more advisable approach is to invest in proactive substance abuse prevention and support programs for employees, and be quick to respond—including through required accommodation measures—if you suspect that an employee may have a problem.
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