Canadian HR Reporter

CANADIAN HR REPORTER DECEMBER 2019 NEWS 9 • Post-incident or near miss testing may be permissible if a worker has been involved in a workplace accident or signifi- cant incident or near miss and there is reason to believe alco- hol or drugs may have been a contributing factor. • Return-to-work testing may be permissible if the worker is re- turning to work after treatment for substance abuse and testing is a condition of the return-to- work arrangement. • Reasonable cause testing may be permissible if the employer has reasonable cause to believe the worker is not fit for duty (such as slurred speech, diffi- culty concentrating or the smell of alcohol or drugs). • Pre-employment testing is generally not permissible in a unionized workplace. In a non-unionized workplace, testing may be permitted in limited circumstances pro- vided a worker who fails a test due to a substance use disorder has the opportunity for fur- ther medical assessment and accommodation. There is no catalogue of "safety-sensitive" work: The term "safety-sensitive" is not de- fined in any of Canada's health and safety laws. However, a safe- ty-sensitive position has been described by the Canadian Hu- man Rights Commission as one that "if not performed in a safe manner, can cause direct and significant damage to property and/or injury to the worker, oth- ers around them, the public and/ or the immediate environment." Generally, this includes a job that requires the worker to be alert, physically coordinated and exercise good judgment, such that impairment could affect the health, safety or security of the worker, other persons, property or the environment. Employer best practices Rather than wait for an inci- dent to arise, a best practice is to proactively ensure workers understand the conditions un- der which they are expected to work, and enforce workplace rules consistently. Here is what we recommend: Drug and alcohol policy: Pre- pare a written Drug and Alcohol Policy. e policy should: • prohibit a worker from working when not fit for duty due to the use of illegal drugs, legal drugs or alcohol • prohibit a worker from posses- sion or use of any illegal drug, legal drug or alcohol in the workplace (this includes the possession of edibles) • require the disclosure of any drug or medication that may render an employee unfit for work • advise that accommodation may be provided if a worker has a substance use dependency or is required to use a drug for medical reasons • advise that it may be neces- sary to obtain additional medi- cal information to facilitate accommodation • address any permissible reason- able alcohol consumption for work-related purposes (such as a client event, work-related party or function) • if testing is contemplated for a safety-sensitive position, set out when and how testing will occur (for example, reasonable cause, post-incident or return to work), and what measures will be taken to protect privacy • address discipline for an em- ployee's violation of the Drug and Alcohol Policy. Testing: If the Drug and Alco- hol Policy contemplates testing, identify a third-party testing pro- vider and confirm: • the steps for testing • the substances to be tested • what constitutes a "positive" test with respect each substance and how this will be determined • how test results will be pro- vided to the employer and the estimated timelines. Implementation • Train supervisors on the Drug and Alcohol Policy, including the obligation to report when it is suspected a worker is not fit for duty, and how to address the worker. • Consider providing supervisors with additional training on how to recognize when a worker may not be fit for duty. • Inform workers about the Drug and Alcohol Policy, including the obligation to report. • Have each worker sign an Ac- knowledgment and Consent to comply with the Drug and Al- cohol Policy (and a Consent to testing, if applicable). Compliance • Ensure each new worker is trained on the Drug and Al- cohol Policy and signs the Ac- knowledgment and Consent. • If a worker requests accommo- dation under the Drug and Al- cohol Policy, determine wheth- er accommodation is for sub- stance use dependency (which would not require continued use of the drug or alcohol) or a disability for which the drug is being used medically. Engage in the appropriate accommoda- tion process based on the un- derlying medical information. • Before imposing discipline for a violation of the Drug and Al- cohol Policy, ensure any human rights or accommodation issue has been considered. • Revise the Drug and Alcohol Policy as necessary based on legislative changes, case law developments and the needs of the workplace. Sundeep Gokhale and Tom Gorsky are lawyers with Sher- rard Kuzz LLP, one of Canada's leading employment and labour law firms, representing manage- ment. Sundeep and Tom can be reached at (416) 603-0700 (main), (416) 420-0738 (24-hour) or by visiting www.sherrardkuzz.com. Great perks. Happy employees. With a comprehensive suite of exclusive perks, your team can save on everything from travel, entertainment, dining, shopping, electronics and more… WorkPerks is truly a benefi t for the good times. Employees and their families can: • Access discounts for brand names and local favourites • Save employees $1,000s every year WorkPerks ® extends the employee experience beyond the workplace. 1.866.383.6646 Talk to us today. Happy employees. Great perks. Great perks. Enforce workplace rules consistently with workers CANNABIS < pg. 5 JOINT VENTURE BY:

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