Am I required to accommodate an employee that has a drug and or alcohol addiction?
For the purposes of B.C.’s human rights legislation, drug and alcohol dependencies, whether perceived or real, fall within the meaning of disability under the Code. As such, employers have a legal obligation to accommodate those dependencies up to the point of undue hardship.
Testing for Drug and Alcohol Use
The Supreme Court of Canada has determined that in most cases, mandatory testing of drug and alcohol use of any kind, constitutes discrimination as it involves a preconceived perception that a disability exists. With the exception of cases where safety or risk is a serious issue and testing may be permissible, all other testing must be tied to an impairment that can be observed while at work. In addition, the Supreme Court of Canada found that random drug testing, where the employer failed to show a problem in the workplace, was seen to be a breach of the Charter right to privacy.
The courts deal with drug and alcohol testing very differently. This is in part because the testing for drug use is not scientifically accurate and therefore cannot be heavily relied upon. The more recent issue of legal medical marijuana has also led to some uncertainty in the law. What may be useful is to make note of the discernible impact of the drug on the person's ability to do their work. If they are unable to safely and effectively do their work due to a drug, whether it is prescribed or not, the employer will be within their rights to stop the employee from performing that work.
The Pre-employment Situation
While it is true that in B.C. employers are not prohibited from asking questions based on prohibited grounds it is also true that an employer cannot make a hiring decision based on this information unless they can show that it constitutes a bona fide occupational requirement (BFOR). Some areas where requirements have been upheld are in the situations such as airline pilots, bus drivers, and those employees who drive or operate heavy-duty equipment, or work in a dangerous environment.
Impaired at Work Situation
If an employee is clearly impaired at work, management has both the right and the responsibility to manage, but bear in mind that alcohol and drug addiction should be treated as a disability. In other words, you have the right to engage in the rule of discipline for misconduct and inappropriate behaviour, but if you have information or evidence to suggest an addiction, assistance should be offered in the form of medical treatment, participation in recovery programs should be encouraged, and the employee should be given the appropriate time to recover. With regards to alcoholism, denial of the disability and relapses are considered to be symptoms of the illness and therefore should not be subject to discipline. The question of how much time an employer must spend in assisting the addicted employee goes to the question of undue hardship for the employer.