Legal Words

by Malcolm MacKillop, Shields O’Donnell MacKillop

 

What happens when drug and alcohol abuse creep into your workplace?

 

Ever wonder why it seems to be cool these days for sitting politicians to admit to drug use after being elected to public office? First, it was smoking marijuana and now, it’s smoking a crack pipe. Did these politicians check with a criminal lawyer or an employment lawyer before making these wild public admissions? Is smoking crack the new ‘breaking bad’ in the workplace?

 

If you have not already watched the award-winning series, Breaking Bad, you should definitely buckle up before you start watching it and then ask yourself whether drug use by your employees is an issue that you should be concerned about.

 

In Breaking Bad, Walter White is your average chemistry teacher who finds out he is dying from cancer. He decides to manufacture and sell crystal meth to raise money for his family to live off of once he’s gone. He was not in a drunken stupor at the time he made this decision – in fact, it always made sense to Walt.


But this plot line along with recent disclosures by our politicians made me sit back and wonder: how would these revelations be dealt with if similar disclosures were made by a senior executive in the workplace?

Alcohol or drug use outside the workplace can have an impact on how an employee will conduct himself in the workplace with peers, and it may also disclose a potential risk for an employer.

 

Rarely do employees stand in front of a mob of reporters and admit to drug use. If an employee decided to announce that he was either under the influence of a drug or alcohol at work, it would not likely take you long to suspend that employee immediately from work and conduct an internal investigation. Your finding of guilt might lead you to terminate that employee with or without pay in order to get rid of that problem. You might decide to impose some terms in a last-chance agreement and accommodate the employee’s disability.

 

But what do you about an employee who, on his own time, is engaged in drug use or abuses alcohol? Is there anything that you can do? Does it have to impact his or her work performance? Does the duty to accommodate an employee’s disability always kick into play each time? In the absence of a direct admission, or catching an employee in possession or under the influence of drugs or alcohol, what you can do becomes much more complicated.

Here are some suggestions:

 

Be aware

Depending on the nature of your workplace, drug and alcohol abuse can be more prevalent. However, there is no magic line that can be drawn between blue-collar and white-collar employees. Traders making over a million dollars a year can have as bad (or worse) of a cocaine problem than a plant worker who makes $60,000 per year. A member of the clergy can be a terrible alcoholic and could cause significant harm to a workplace in the same way as a shift supervisor.

 

A police officer can be a drug addict. Although most large companies now have Employee Assistance Programs (EAPs) that provide confidential counselling and medical support for employees who need help, that may or may not be enough. These days, you may need to take one step further and talk about the issue in the workplace with your employees and identify the safety issues, the performance issues, the risk of job loss and the health issues. Whether your employees are addicts or users, there is an impact on your workplace.


Outside activity may be relevant

The days of defining what constitutes the “ workplace” is not as easy as it once was. Many employees travel for work with colleagues or customers. They are expected to avoid engaging in improper behaviour, but supervision is difficult, if not impossible. Alcohol or drug use outside the workplace can have an impact on how an employee will conduct himself in the workplace with peers, and it may also disclose a potential risk for an employer.

 

It may also be a signal to the employer that intervention is necessary. Outside conduct may be relevant, depending on the nature of the employee’s job, the industry and the risks on the company’s reputation.

These issues present a tremendous amount of challenges for the HR professional, and it cannot just be viewed from the perspective of a performance issue.

Not every case is a disability

Some would dispute this claim. Drug and alcohol users could fall into two categories: some who abuse and some who are addicted. For the former, they will never admit that they have an addiction issue and they will never agree to treatment. In these circumstances, accommodation is not likely necessary as the employee will not accept or assert that they suffer a disability. In the latter, the addict may request or require accommodation as the person does suffer from a recognized disability.

 

The task to reach the appropriate level of accommodation is a challenge in most cases. It involves candour, disclosure, trust and patience. The results can often go either way. Employees can recover from serious drug or alcohol addiction. Some take a leave of absence, successfully recover by attending a treatment program and are able to return to work. These arrangements can also fail. Each case needs to be approached with sensitivity and particular attention to the unique facts of the case at hand.

 

Have a policy

Most prudent employers have a drug and alcohol policy in the workplace. The policy should be broad enough to cover the impact on performance, not just reference being directly in possession or under the influence while at work. It should provide what steps the company will take to assist an employee who is suffering from a drug or alcohol dependency. The policy should be posted and communicated on a regular basis to employees. Obviously, a key part of this approach is that the company management needs to lead by example and needs to set the appropriate boundaries around company functions and entertaining. As an example, having an open bar at a Christmas party is uncommon these days.

 

Mental health/emotional issues are prevalent

Recognize that some of your employees are struggling with mental health and emotional issues, which may be related to or in combination with alcohol or drug use. These issues present a tremendous amount of challenges for the HR professional, and it cannot just be viewed from the perspective of a performance issue.

 

In some cases, it will be appropriate to request a medical clearance certificate from the employee’s physician or obtain an independent medical examination, depending on the circumstances of the case in question. Some cases require a more clinical approach as opposed to the more traditional approach of assuming that it is purely a performance issue requiring discipline.

 

Malcolm MacKillop is a partner at Shields O’Donnell MacKillop, a management side employment and labour law boutique in Toronto.