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As more Canadian workers face mental health issues brought on by the pandemic, alcohol and drug use on the job has increased.

A webinar presented by Lancaster House — a labour, employment and human rights law publisher — looked at substance use on the job and the sometimes-surprising outcomes of cases in arbitration.

Speaker Aminah Hanif, legal counsel of Cavalluzzo LLP, said post-incident testing isn’t done to rule out an employee’s impairment after an accident but rather to confirm substance use because the accident “can’t simply be explained through human error.”

Case law shows that the incident “needs to be fairly serious” to justify testing.

Hanif, who practises construction law, said an employer’s duty to accommodate an employee often requires the “risk of relapses” in their plan because repeated relapses are a frequent part of substance use disorders.

A single relapse doesn’t necessarily qualify as “undue hardship” for an employer. In some cases, a company’s size and ability to absorb multiple relapses in the workplace can determine the duty to accommodate, she told the webinar.

Speaker Kris Noonan, partner Stikeman Elliott LLP’s Employment & Labour Group, said employers have to accept that for many employees with substance use issues there is “a strong chance of relapse.”

For an employer to establish undue hardship on the company, its burden “must be so severe that it would be reasonably considered unacceptable for the employer’s business,” he added. The employer should be able to demonstrate that it has investigated all accommodation alternatives and has explored all precautions to reduce the risks of an employee relapsing.

Blanket company rules, he said, such as zero tolerance drug and alcohol policies, “rarely withstand arbitrarial scrutiny” without consideration for the individual employee’s circumstances.

Just because an employee has a “safety sensitive” job isn’t justification for arbitrary testing or an employee’s removal, added Hanif. The employer might need to do a “functional assessment” of the worker regularly that includes additional supervision or assigning them to a different area with a lower safety risk.

In case law, arbitrators suggest consideration be given to providing occupational medical specialists to evaluate the duties of the worker in relation to their limitations, added Noonan.

Although an employer is unaware of an employee’s substance use issues it doesn’t mean the employer won’t be required to accommodate the worker when the issue is discovered, said Hanif. Case law recognizes that denial can be one of the symptoms of substance use disorders so even if the worker has been terminated the employer might not be absolved of the duty to accommodate.

Hanif told the webinar audience the disclosure of medical information of an employee should be limited to current or active addictions and the information limited to persons on a need-to-know basis, according to case law.

She said that substance use disorders are often tied to mental health issues which can be “particularly sensitive and should be treated as such” by employers.

“Rarely employers are entitled to (an employee’s) specific diagnosis…or details of the (medical) treatment plan,” added Noonan, pointing out only information related to the ability to work is relevant.

The webinar’s moderator Colin Johnston, an arbitrator and part-time member of the Human Rights Tribunal of Ontario, said that Last Chance Agreements (LCAs) can be non-compliant with human rights legislation. It is important that employers take steps to accommodate the employee — which might include relapse events — before imposing an LCA.

Case law points to a need for having “accommodation evidence” in the LCA. Rather than be a “disciplinary warning,” the LCA “should read like a rehabilitation plan that makes a good-faith effort to return the employee to work,” Noonan advised.

Along with a return-to-work substance test, the plan could require the grievor to be assessed by a substance abuse professional to develop a treatment plan and have periodic follow-ups to ensure adherence to the plan.

Johnston said arbitrators consider a grievor’s sincerity, willingness to take responsibility for rehabilitation and if it is a reasonable expectation for them to return to the workplace in a safe manner.