WINNING! How to handle an employee with Tiger blood and Adonis DNA

Many business owners reading the entertainment news this week, and possibly following @CharlieSheen on twitter (not that anyone in our firm would do that) may be asking themselves “what would I do if I had an employee who was behaving in a similar fashion?”

The law in Canada is very different than the law in the United States and obviously, none of us really know what is going on in the situation that has taken over headlines everywhere.

However, for a moment, let’s presume that there is a possible substance abuse issue with an employee in your business. Many employers wish to know “can I immediately terminate that employee?” Another question that may spring to some employers mind is “can I require an employee to submit to alcohol and/or drug testing?”

As always, when addressing wrongful dismissal, it is important to realize that in Canada, it is very difficult to terminate an employee for cause.

Further, when you are dealing with a potential drug or alcohol problem, this dependency may be considered a disability under the Ontario Human Rights Code, and accordingly, you as an employer must consider accommodating the employee rather than terminating the employee.

If the substance abuse effects the workers’ job performance, or creates a danger to the safety of employees or others in the workplace, then the normal response to any work performance issue needs to go into effect. We have discussed the three warning plan in previous blog entries and encourage you to look back through the blog history if you are unfamiliar with this concept. It is important that offers of assistance are provided in the letters leading up to dismissal. One needs to review one’s benefit plan and if it includes rehabilitation, which often it does, that should be brought to the attention of the employee.

Dealing with the Ontario Human Rights Code issue of accommodation, for a substance dependant employee, this is generally considered to be rehabilitation. The role of the employer in facilitating this process is not to terminate the employee while that employee is at rehab.

Turning to the issue of mandatory drug and alcohol testing in the workplace, the Ontario Court of Appeal has addressed the issue of drug testing in the workplace in the decision of Entrop v. Imperial Oil.

This was a Court of Appeal review of an Ontario Human Rights Commission Board of Inquiry regarding Imperial Oil’s drug testing policy, which provided for automatic transfer to a non-sensitive work role if there was one failed drug test, and reinstatement to the previous position only upon meeting rigorous requirements.

The Court of Appeal held that substance abusers are suffering under a disability and entitled to the protection of the Human Rights Code. The Court of Appeal held that drug testing is a discriminatory practice against substance abusers and Imperial Oil was required to show that it was bona fide requirement for the occupations for which they were testing.

The Court of Appeal held that the policy’s purpose is to minimize the risk of impaired performance due to substance use in a refinery (where an accident would have catastrophic results) was an acceptable bona fide occupational requirement. The Court of Appeal went on to further hold that the policies had been implemented in good faith. Specifically, that Imperial Oil has the right to assess whether its employees are capable at performing their essential duties safely.

The Court of Appeal also held, however, that the random drug testing provisions of the policy suffered from a flaw in that the sanction for one positive test, which was automatic transfer out of the immediate position, was too severe. In some cases, termination may be justified but in another, the employee circumstances may call for a less severe sanction. Imperial Oil had failed to demonstrate to the Court why it could not tailor its sanctions to accommodate individual capabilities without incurring undue hardship.

This was only with respect to drug testing, however, provisions where random alcohol testing by breathalyzer could immediately show impairment, and that would be legitimate to take steps to deter and detect alcohol among its employees in safety sensitive jobs. Automatic dismissal as the result of a random alcohol test was considered to be too severe.

Anyone considering a drug and alcohol testing policy in the workplace must legitimately have a basis for requiring that to take place. Further, the way a positive test is handled is critical and employment location specific.

Therefore, if you find yourself working with an employee who declares his or herself “tired of pretending I’m not a total bitchin’ rock star from Mars”, this is not territory you should navigate on your own, rather, you should seek the advice of a business law firm, such as ours.

As with any “news” story, some of the quotes that have been provided throughout the week are thought provoking. To that end, I leave you with the thought that the following may become our firm’s mission statement:

“It’s perfect. It’s awesome. Everyday is just filled with just wins. All we do is put wins in the record books. We win so radically before our first cup of coffee, it’s scary.”

Inga B. Andriessen, J.D. (may have Tiger blood, but is clearly lacking in Adonis DNA)