Archive for September, 2010

Drunk or high at work: Does it matter which? (or how?)

There’s no shortage of ways employees can get intoxicated — but should the employer’s reaction vary on the substance? 

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

There’s no shortage of ways people can get intoxicated.

Some are legal and easy to get, such as over-the-counter medication and alcohol; some are legal but more strictly regulated, like prescription medication; while some are outright illegal. If someone is intoxicated from one of these substances in circumstances where they shouldn’t be, does it matter what they’re on?

Employers in Canada have been trying to push drug and alcohol testing of employees to be accepted as an appropriate practice at any time. While the decisions of courts have been mixed, employers are usually more able to justify it if there are safety concerns. These safety concerns stem from the affects intoxicants have on someone’s functional abilities. If someone is operating heavy machinery or piloting an airplane, any level of intoxication is going to cause a safety hazard.

Even if there isn’t a safety risk, employers don’t want employees to be intoxicated on the job because it would affect their ability to do their job properly. If productivity is affected, so is the bottom line. So it makes sense that intoxication at work could be grounds for some sort of discipline. Discipline could be more serious if the intoxication is from illegal drugs.

But what if an employee has special permission to have something that’s normally illegal, like medical marijuana? Should the employer treat it as having an illegal drug or more as if the employee is drunk? What about a strong controlled drug the employee has a prescription for, but is using improperly? Is this more serious than drinking alcohol right before going to work? Is possessing drugs the employee has special permission for more serious than have a bottle of booze at work?

Regardless of permission or the legality of an intoxicant, employees shouldn’t knowingly ingest them right before going to or while at work. Should the nature of the intoxicant or whether the employee should have it in her possession matter when considering what discipline to impose?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that covers workplace law from a business perspective. For more information, visit www.employmentlawtoday.com.

Workplace health and safety: Shared responsibility and liability

If unsafe conditions are found to have been caused by onsite negligence rather than improper safety procedures, how much liability should an employer have?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

There are many industries where workplaces can be dangerous due to the nature of the business. Accidents in the workplace that cause injury or even death can, and unfortunately do, happen.

Every jurisdiction has occupational health and safety legislation that employers are required to follow to reduce the risk of these types of accidents. If something does happen that’s found to be the result of a failure to follow health and safety regulations, employers usually face hefty fines. But how much responsibility should employers have if something happens because of an employee’s actions?

When employees don’t follow proper safety protocols, it can either be because they weren’t trained properly nor given proper equipment, or they deliberately chose to ignore proper procedure. If the former is the case, then the employer must assume liability for a situation it created. But if it’s the latter, how much liability should the employer have? To what extent can it control the employee?

In May, two Ontario construction companies were fined $60,000 each after a 2008 incident where a worker fell through a roof opening when a plywood safety covering was removed. Two supervisors were also fined $3,000 each for failing to ensure the worker was protected from falling.

Given the opening was originally covered, workers were likely aware of the danger and the need for the safety cover. Assuming the companies trained their workers on the necessity of this practice, shouldn’t they have been able to trust their supervisors to ensure the covering remained in place? Since the supervisors were found to be liable for the incident on their watch, what could the companies themselves have done to avoid the accident if they thought the supervisors were looking after things?

Another Ontario construction company couldn’t have done anything itself to avoid serious injury to a worker in a case decided late last year. Aecon Utilities had been charged with health and safety violations after a worker was hurt using a hammer and wrench to dislodge a steel rod from a large drill bit. His coat got caught tangled and he was spun around the drill.

The court found Aecon had properly trained the employee on how to operate the drill and safety procedures, as well as given specific warnings to avoid using wrenches on moving machinery and to keep loose clothing away from it. However, the employee simply disregarded all that and the court couldn’t find the employer responsible for the employee’s independent actions that led to his injuries.

An Alberta court took the same view after a gas well worker died from inhaling gases after disregarding instructions not to do anything to repair a pressure vessel until proper equipment was obtained. The worker had been properly trained in safety procedures, but didn’t follow the instructions. The employer, Lonkar Well Testing, wasn’t responsible for the employee’s actions.

So, if an employer can be found to be not liable for an employee’s independent actions that cause an accident, should it be liable for supervisor’s decisions on the worksite that are contrary to training and policy? If unsafe conditions are found to have been caused by onsite negligence rather than improper safety procedures, how much liability should an employer have?

Jeffrey R. Smith is the editor of Canadian Employment Law Today.  For more information, visit http://www.employmentlawtoday.com.

Battling personal demons while surrounded by them

Should employers who make drugs and alcohol be expected to keep on employees who are addicts?

By Jeffrey R. Smith (jeffrey.r.smith@thomsonreuters.com)

Addiction to drugs and alcohol can cause disruption in all aspects of one’s life. When it flows into a person’s professional life, it causes problems for the employer as well.

It can be a sticky area when an addict starts causing trouble at work since, in most cases, the employer can’t simply fire her for misconduct. Addiction is a disability and if the employee’s misconduct is in any way tied to the addiction, the employer is required to look at accommodation to give the employee a chance to rehabilitate and save her job.

But what if the job involves being around the source of the addiction? What if it isn’t the misconduct or unreliability caused by the addiction but the addiction itself that puts the employer at risk because of the nature of its business?

A couple of years ago, Moosehead Brewery had to deal with an employee who was an alcoholic. The brewery initially dismissed the employee, but later relented and hired him back under a “last-chance” agreement the provided for periodic unannounced drug and alcohol tests.

Less than two months after signing the agreement, the employee tested positive for marijuana use and the employee admitted to smoking it six hours before a shift. The employee argued the test, which was administered eight days after he smoked the drug, wasn’t evidence of on-duty impairment, just past use.

But the arbitrator found the last-chance agreement prohibited any use of drugs or alcohol, since he was an alcoholic and “complete sobriety and total abstention from mood altering drugs was critical to his recovery.” The arbitrator, and two appeal courts earlier this year, upheld the dismissal.

Moosehead accommodated the employee by allowing him to continue to work under a last-chance agreement. Though the violation of the agreement was from drug use, the fact it was an alcoholic working at a brewery raises other questions. Does the fact the employee’s disability is related to the employer’s business lower the requirement for undue hardship?

It wouldn’t be surprising for a brewery, or any other manufacturer of alcoholic beverages, to be more than a little nervous to find out one of its employees was an alcoholic, particularly if the employee was directly involved in the handling of or had easy access to the product. The same could be said for pharmacies, medical centres or drug companies who employed drug addicts. The possibility for relapse and theft of product, as well as perhaps even insurance complications, might be an issue. Should they be forced to accommodate individuals with these conditions at the risk of harm to their business?

People with addictions are faced with tough battles and should be given assistance to fight their addictions as much as possible, including help from their employer in getting treatment. But if their job involves easy access to that which they are fighting against, the temptation to relapse and the financial risk to the employer could be great.

It’s been said that it’s common for recovering addicts to relapse at least once or twice before they beat their addiction. Can an employer whose business relies on the source of the addiction afford to keep them around?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit www.employmentlawtoday.com


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