Substance Dependence in the Workplace: An Employer’s Guide

Health Canada recently granted British Columbia a three-year exemption under the Controlled Drugs and Substances Act to decriminalize the possession of some illegal drugs for personal use.

British Columbia is the first province to receive such an exemption, which will be in place from January 31, 2023, to January 1, 2026.

Why is BC decriminalizing drugs?

This new drug policy that “favours healthcare over handcuffs” is a historic and ground-breaking step in reducing the fear and shame that is often associated with substance dependency.

There were 2,224 suspected overdose deaths in British Columbia in 2021. This was a 26% increase from the number of illicit drug-related deaths in 2020. Through the decriminalization experiment, the province plans to address substance dependency as a health rather than a criminal issue. Removing criminal penalties for possession for personal use may encourage those with substance dependency to seek support and treatment programs.

This provincial exemption is in conjunction with ongoing initiatives throughout Canada, such as increased access to harm-reduction programs like safe consumption sites and safer supply. Hopefully, it will encourage employers to engage in open conversations with their employees around substance dependency and make the workplace a more accepting and safe space for everyone.

Is there a difference between decriminalized and legal?

Yes. Decriminalization is not the same as legalization.

The decriminalized drugs in BC are still illegal. But adults who possess 2.5 grams or less of the certain illicit substances for personal use will not be arrested, charged, or have their drugs seized. While criminal charges will not be applied, police will provide information on available health and social supports and help with referrals when requested.

Legalization, on the other hand, lifts all penalties for drug possession and personal use.

Which drugs will be decriminalized in BC?

As of January 31, 2023, adults will be able to possess up to a cumulative 2.5 grams of opioids, methamphetamine, MDMA, and cocaine in BC.

What does the human rights law say about substance dependence?

In all Canadian jurisdictions, human rights laws prohibit discrimination in employment based on various protected grounds, including age, family status, race, sex, sexual orientation, and disability, among others.

In Ontario, British Columbia, Alberta, Manitoba, Saskatchewan, and at the federal level, addiction and/or substance dependence is covered by the protected ground of disability. This means individuals who have, or are presumed to have, an addiction or substance dependence can’t be treated differently at work (in recruitment, hiring, during the course of employment or at termination).

Provincial and federal governments also provide guidance on drug and alcohol testing at work through their respective human rights commissions. Generally, drug and alcohol testing at work is only allowed in certain circumstances (these circumstances are guided by a body of decisions from human rights tribunals, labour arbitrations and courts).

While each instance is assessed on a case-by-case basis, drug and alcohol testing at work is typically only permissible when the testing is both reasonable and justifiable (for example, testing individuals in “safety-sensitive” positions is generally viewed as more permissible).

Similar to the general “test” that has developed over the pandemic regarding mandatory COVID-19 vaccinations at work, drug and alcohol testing must balance two competing objectives: preserving the employee’s human and privacy rights while ensuring safety for other employees and the public.

What are my duties as an employer regarding substance dependence in the workplace?

When it comes to substance dependence in the workplace, employers generally have two main duties – the duty to enquire and the duty to accommodate.

The duty to enquire

It is acknowledged that people suffering from addiction are often not willing, or able, to identify that they need rehabilitation or other support. Due to this, human rights law recognizes that employers have a duty to make reasonable enquiries when it is suspected that an employee’s behaviour at work may be impacted by a substance dependency.

Employers should directly address concerns and complaints regarding intoxication at work, even when it may not be comfortable to do so, to ensure the work environment is safe for all. Doing so also helps employers in identifying if their duty to accommodate is triggered.

The duty to accommodate

The duty to accommodate requires employers to adjust the workplace or working conditions to successfully meet the needs of an employee’s disability. The employer does not have a duty to change working conditions in a fundamental way. But the employer does have a duty, if they can do so without undue hardship, to arrange the employee’s workplace or duties to enable the employee to complete their work comfortably. This can include alternative work, a flexible work schedule, lightened duties, and/or staff transfers.

While workplace accommodations for addiction are determined on a case-by-case basis, the duty to accommodate is neither absolute nor unlimited. For example, where disability-related absences have spanned several years or more, human rights case law has established limits on the employer’s duty to accommodate. Also, if accommodation has been tried and exhausted and there is no further accommodation available that will assist the employee in completing the essential requirements of their job, the employer will have likely fulfilled their duty.

What are the economic costs of substance dependency for employers?

According to the Canadian Centre for Occupational Health and Safety, the economic costs of substance dependency for Canadian businesses have been historically difficult to measure.

Many costs are hidden by general absenteeism or illness, “unnoticed” lack of productivity, or the inability to link addiction or substance dependency directly to workplace accidents. The costs to employers that have employees suffering from addiction at work may be both direct and indirect and can include:

• Lowered safety standards
• Absenteeism/high turnover/presenteeism
• Loss of productivity
• Increased potential for workplace violence and harassment
• Poor decision making
• Low morale

Do you need help creating drug and alcohol policies for your workplace?

To best avoid these and other costs, employers must ensure they have comprehensive drug and alcohol policies in place at their workplace and are actively taking steps to help their employees in need.

Employers must also abide by human rights laws by treating all employees fairly and only introducing drug and alcohol testing when it is reasonable and justifiable. Employers must also fulfill their duties to enquire and to accommodate to the point of undue hardship.

Our expert advisors can help you write drug and alcohol policies and with any other HR, health & safety and employment law matters that may arise. To learn more about how our services can benefit your business, call an expert today at 1 (833) 247-3652.