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hri_Admin asked 5 years ago
Assumed facts:
- An employee did not disclose addiction voluntarily to their employer.
- The employer has a policy stating workers must be fit for duty, including not being under the influence of drugs.
- The employee was involved in an incident or showed signs of impairment resulting in a "reasonable suspicion" report.
- The employee was tested and had a positive drug test result.
1 Answers
Glenn Demby answered 5 years ago
Kudos for doing everything right, so far. The answer is YES, you do have to make a determination of whether the employee has an addiction or is just a recreational user. But you don't necessarily have to bring in an outside expert to do it. You can simply ask the employee. And if he/she says yes, you can ask for a doctor's note or other verification.
If the employee is simply a recreational user, you have just cause to discipline for violating your fitness for duty policy, PROVIDED THAT, the positive test denotes current impairment. If the substance was marijuana you may have a problem to the extent that THC metabolizes slowly and can be in the system long after the high wears off.
If the employee has an addiction, you need to accommodate him/her to the point of undue hardship. How that plays out depends on the circumstances. But the fact that the employee didn't disclose the addiction gives you a legal advantage. See the 2017 Stewart v Elk Valley Coal case from the Canadian Supreme Court https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16679/index.do (or see our analysis of the case on HRI--search "Fitness for Duty")
The same accommodations analysis applies if instead of being an addict, the employee is using medical marijuana for a disabling condition. Again, fitness for duty is crucial, especially if employee is safety-sensitive.
Great job so far and good luck seeing this through to the next step. Hope this helps. Glenn
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