Section 17(2)
Section 17(2) provides that an employee shall not be found incapable of performing the essential duties of a job unless it would cause undue hardship to accommodate the individual employee's needs, taking into account the cost of the accommodation and health and safety concerns.
Sections 17(1) and 17(2) provide a two-stage test for the validity of a workplace drug and alcohol testing policy.
Example: An employer is concerned about fairness and decides to extend an existing alcohol testing policy originally designed for employees in safety-sensitive positions to cover all other employees. Although the policy's generous rehabilitation programs may satisfy the accommodation requirement set out in Section 17(2), this defence is not available to the employer unless it can be shown that employees in non-safety-sensitive positions who fail the test are incapable of performing their essential duties.
Onus on the employee to co-operate with the employer
A person who requires accommodation in order to perform the essential duties of a job has a responsibility to communicate the need for accommodation in sufficient detail and to co-operate in consultations to enable the person responsible for accommodation to respond to the request. It should be noted that this obligation does not interfere with the employer's obligation to treat the person equally even if the employer believes or perceives (even with good reason) that the employee has substance abuse problem.
Example: An employee in a clerical position appears to be inebriated frequently during work hours, and the employer has a conversation to address the problem. The employee refuses to acknowledge the problem or seek counselling at the employer's expense. Shortly after, the employee is fired without formal warning.
In this case, the employer clearly “perceived” the person to have a substance abuse problem and therefore the protection of the Code is engaged. The fact that a person refuses treatment or accommodation does not in and of itself justify immediate dismissal. The employer has to demonstrate, through progressive discipline, that the employee has been warned and is unable to perform the essential duties of the position. If the employee refuses offered accommodation and if progressive discipline and performance management have been implemented, then disciplinary steps can be taken.
If an employee's drug or alcohol addiction/dependency is interfering with that person's ability to perform the essential duties of the job, the employer must first provide the support necessary to enable that person to undertake a rehabilitation program unless it can be shown that such accommodation would cause undue hardship.
Undue hardship
The employer will be relieved of the duty to accommodate the individual needs of the alcohol or drug addicted/dependent employee if the employer can show, for example, that:
- the cost of the accommodation would alter the nature or affect the viability of the enterprise; or
- notwithstanding accommodation efforts, health or safety risks to workers or members of the public are so serious that they outweigh the benefits of providing equal treatment to the worker with an addiction or dependency.
Alternative mechanisms
The OHRC supports the use of the least intrusive means of assessing impairment or fitness for work. All workplaces should consider using comprehensive workplace health policies that may include such programs as EAPs and drug education and health promotion programs.
When considering how best to address the needs of employees with substance dependencies, employers are encouraged to consider the establishment of alternatives such as EAPs. EAPs are personal assistance programs that help employees who have substance abuse or other problems. Such programs can assist not only individuals with a drug or alcohol addiction/dependency, but can also help workers deal with the stress which may lead to such an addiction or dependency. Off-site counselling and referral services are examples of EAPs that are used successfully in the workplace. In addition, health promotion and drug education programs can prevent problems before they start by getting at the causes. Other alternative mechanisms include performance tests for safety-sensitive positions, where physical and/or mental coordination are integral parts of the job, peer or supervisory monitoring.