Concern about alcohol and drugs in the workplace is a thorny issue for safety professionals. Workplace safety is paramount under occupational health and safety (OHS) laws across Canada. OHS legislation places significant legal duties and obligations on employers to take every reasonable precaution to safeguard their workers. Although under the internal responsibility system (IRS) there is mutual responsibility between employers and workers for workplace safety, legal liability primarily rests with the employer. While employers must maintain a safe working environment, workers are responsible for avoiding actions that might jeopardize the safety of themselves and others. The detrimental effects of alcohol and drug impairment can considerably undermine this shared duty to ensure a secure workplace.
Substance use and abuse is a contemporary and current issue for Canadians. Alcohol is the most used substance in Canada according to the 2019 Canadian Alcohol and Drugs Survey. Since its legalization, cannabis is now consumed by 26 per cent of Canadians over the age of 16 according to a 2023 Canadian Cannabis Survey. Additionally, there is a growing health crisis around the use of opioids, with an average of 21 opioid-related deaths a day being reported by Health Canada. These and other substances can have detrimental workplace safety effects.
According to the Canadian Centre for Occupational Health and Safety, impairment from alcohol or drugs can severely impact a worker’s judgment and alertness, interfering with the accuracy of their work. A 2021 report by LifeWorks found that one in five Canadians surveyed (20 per cent) believe their alcohol or drug use has made it more difficult for them to complete tasks at work. Substance use alters perception, and the assessment of risk that impacts workplace decisions concerning safety.
A dangerous workplace is an environment with a higher risk of danger, such as in the following sectors: construction, mining, energy, transportation, industrial, and healthcare. The Canada Labour Code, for example, defines danger as “any hazard, condition or activity that could reasonably be expected to be an imminent or serious threat to the life or health of a person exposed to it before the hazard or condition can be corrected or the activity altered.”
While Canadian statistics on the effects of substance use in the workplace are lacking, the National Safety Council, an American organization, has reported alarming figures: 39 per cent of employers believe impairment is leading to increased injuries, while 45 per cent cite impairment as a cause of more near misses.
To mitigate these heightened safety risks, some employers have turned to alcohol and drug testing. However, this practice raises significant concerns surrounding employee privacy.
Substance testing in dangerous workplaces
In the 2013 Irving decision, the Supreme Court set the standard for what kinds of alcohol and drug testing are appropriate for dangerous workplaces. The Court supported “for-cause testing,” which is only permissible when there is reasonable suspicion of impairment. Random testing, on the other hand, was prohibited to protect employee privacy rights, even in safety-sensitive positions.
Accordingly, to the Canadian Human Rights Commission, a safety-sensitive position is any position “that, if not performed in a safe manner, can cause direct and significant damage to property, and/or injury to the employee, others around them, the public and/or the immediate environment.”
The Court stated: “The dangerousness of the workplace has only justified the testing of particular employees in certain circumstances; where there are reasonable grounds to believe than an employee was impaired while on duty, where the employee was directly involved in a workplace accident or significant incident, or where the employee returns to work after treatment for substance abuse.”
The primary objectives of these testing protocols are detection and deterrence. As the Ontario Human Rights Commission notes, these programs aim to identify individuals posing health and safety risks due to impairment in safety-sensitive roles.
A 2018 report in The Cochrane Database of Systematic Reviews found that random alcohol testing had a deterring effect in relation to alcohol violations in the workplace. While this report only analyzed one study, this idea is consistent with the work of Dr. Mace Beckson, a forensic psychiatrist who testified in the 2014 arbitration of Unifor, Local 707A v Suncor Energy Inc. Beckson noted that a clear alcohol and drug policy serves to deter alcohol and drug use close to the workday. He also noted that it is reasonable to suppose that testing could deter and detect alcohol and drug use in some circumstances.
Legal duty to accommodate
Human rights legislation across Canada prohibits discrimination in the workplace on statutory based enumerate grounds. Further, where an individual is subject to a real or perceived disability, employers have a duty to accommodate the disability to the point of undue hardship. For example, section 17(2) of the Ontario Human Rights Code states that: “No tribunal or court shall find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
The Ontario Human Rights Code recognizes addiction as a disability, which protects workers with substance dependency from discrimination. If an employer believes a worker has a substance dependence, that does not preclude the worker from being granted equal treatment.
After noticing signs of substance dependence, the employer has a duty to inquire. They must have a discussion with the employee to ask if they need an accommodation. If the worker is in a safety-sensitive position, the duty to inquire is triggered after any positive alcohol or drug test result, even if there are no other signs of dependence.
If a worker has a diagnosed substance dependence, their employer has the legal duty to accommodate them, meaning they might have to put separate policies in place. If the dependence is interfering with the worker’s ability to perform the essential duties of their job, then a rehabilitation program may be necessary for accommodation.
An employer is relieved of the duty to accommodate when it would create undue hardship on them, meaning it would cost too much or it would create other health and safety risks. If an employer is trying to claim undue hardship, their claim must be supported by facts, and they must show they have exhausted any alternative and reasonable means of accommodation.
Moving forward to improve workplace safety
Currently, workplace policies on substance use are shifting. While some organizations uphold strict zero-tolerance policies, recent decisions support the implementation of “fit for duty” policies that allow for necessary accommodations for workers who use substances for legitimate medical reasons.
In Ornge Air v Office and Professional Employees International Union, the arbitrator held that alcohol and drug policies must meet the test from British Columbia (Public Service Employee Relations Commission) v BCGSEU (1999 SCC) which has three requirements:
- The standard was adopted for a purpose rationally connected to the function being performed;
- The requirement/standard was adopted in an honest and good faith belief that it was necessary to the fulfillment of that purpose; and,
- The requirement is reasonably necessary to accomplish the purpose, in the sense that the employer cannot accommodate individuals sharing the characteristics of the employee without incurring undue hardship.
This case holds that the use of medical cannabis would not render a worker as unfit for duty, depending on the specific workplace. While a zero-tolerance policy may be helpful in some workplaces, the central focus of an employer’s policy should be whether a worker is fit for duty.
Finally, to ensure a safe workplace environment free from the risks associated with alcohol and drug impairment, employers should prioritize clear, accessible communication of their policies and ensure consistent enforcement. Additionally, support from provincial and federal legislation and cooperation from unions representing workers are crucial in establishing comprehensive safety frameworks.
Norm Keith is a partner at KPMG Law LLP. He can be reached at nkeith@kpmg.ca or by phone at 416-540-3435. Sahara Mehdi is a summer student at KPMG Law LLP.
