DEVELOPING AND IMPLEMENTING AN EFFECTIVE ALCOHOL AND DRUG POLICY
BARBARA BUTLER & ASSOCIATES INC.
These days, many Canadian organizations are concerned about the appropriate way to deal with employees who may be impaired on the job. Many have provided assistance programs to help those with current or emerging alcohol or drug problem. Some have work rules around alcohol and drug use, while others may have some reference to "fitness for duty" requirements in a Health and Safety policy. However, many employers are recognizing this may not be enough.
The impact of alcohol and other drug use in conjunction with work can be significant in terms of employee health, workplace and public safety, and operational productivity. Recognizing this, Canadian companies in all industry sectors are developing comprehensive alcohol and drug policies, or reviewing and upgrading their existing policies as an important step in preventing or dealing with workplace incidents. To this end, many recognize the importance of setting up a mechanism to provide counselling, assessment, assistance and ongoing support for recovery for employees who may have a problem. However, they are equally concerned about the liabilities associated with not taking appropriate action to prevent incidents and accidents. Both prevention/assistance and deterrence initiatives can be effectively addressed through a balanced approach and a comprehensive workplace policy.
To help employers understand the key issues, this paper:
Impacts of Alcohol and Drugs in the Workplace
Recent use Patterns: The Canadian Tobacco, Alcohol and Drugs Survey conducted in 2013 provides the most recent survey information on alcohol and drug use patterns for Canadian adults (age 15 or older)1. The following highlights are of interest:
To put the Canadian situation into perspective, the International Narcotics Control Board's 2011 report (March 2012) confirmed prescription drug abuse is a significant problem in the U.S., Canada, and Mexico. The annual amount of cocaine entering Canada from the U.S. has more than doubled in the last five years. Most of the cannabis produced in Canada is consumed within the country, although some is sent to the U.S. market.
Canada remains a significant manufacturer of ecstasy which, although primarily intended for domestic use, is increasingly being trafficked to the United States, as well as expanding markets such as Australia, Japan and New Zealand; the market is now expanding to Asia, the Caribbean and Mexico. 2010 crime statics show the overall crime rate down by 5% from 2009 but drug-related crime increased by 10%.
Impacts on Performance: Psychoactive drugs, including alcohol, act on the central nervous system, altering the way a person thinks, feels, and acts. Substances of concern in the workplace are those that prevent an employee from performing his or her job safely and productively. The use of some of these substances is socially and legally acceptable, while others are illegal.
Their impacts on motor coordination, perceptual abilities, and physical and mental capacity can all be of concern in a workplace setting. This is why employers need to be aware of potential impacts and set clear standards and expectations to minimize the risk that alcohol and other drug use will put individuals at risk - for themselves, co-workers and the general public.
Individuals are affected by drugs in different ways and to varying degrees. Many variables influence what these impacts will be, including age, weight, sex, state of health, level of fatigue, and experience and tolerance to the substance's effects. Even at low levels, drug and alcohol use can cause performance impairment. Potential impacts on job skill performance include a decrease in accuracy, efficiency, productivity, worker safety and job satisfaction. At higher doses, these effects will be more significant. Withdrawal and hangover effects, as well as chronic use can lead to increased tolerance, and have also been shown to affect an individual's ability to perform. As more complex demands are made on individuals - both in their work and beyond - the behavioural impact of acute and chronic drug use becomes increasingly important.
Although over-the-counter and prescription drugs are used primarily for their beneficial effects, the therapeutic action of the drug may occasionally create an undesirable effect. Errors in dosage may magnify this, and drugs taken in combination may lead to further problems. These therapeutic effects or adverse reactions could also interfere with job performance and create a safety hazard. This is why many employers ask those in higher risk positions to investigate with their doctor or pharmacist whether a drug they are taking can impact the ability to do their job safely, and to report any need for modified duties as advised by the professional.
Various studies have credited alcohol and other drug use with contributing to increased turnover, accidents, absenteeism, workers compensation, sick benefits and insurance claims, loss of productivity and human potential, low quality products and services, theft and trafficking. A key concern is increased corporate liability regarding employee and public safety and environmental impacts resulting from accidents associated with alcohol or other drug use.
Implications for Policy Decisions
Recognizing this, employers must look at the impact alcohol and other drug use could have on their own specific operations, and then determine how best to minimize that impact - particularly where safety may be affected. Statistics from the most recent national and provincial surveys can provide a picture of likely patterns in any given workplace. Due diligence in dealing with potential safety risk requires using effective and reliable investigative tools as part of a broader approach to prevention.
Employers must also find a balance between providing opportunities for rehabilitation for those who may have a problem, and triggering discipline for someone who has violated the rules. Many employers in higher risk industries have decided to take a proactive rather than reactive approach to this issue.
Legal Liabilities and Responsibilities
A variety of potential legal issues may be best addressed through consistent implementation of a clear and reasonable policy; this can include addressing the liabilities associated with the actions of impaired employees at work, due diligence responsibility around workplace safety, actions in response to possession or trafficking of illicit drugs, and the duty to accommodate those with a chemical dependency in accordance with human rights provisions. In fact, a recent court decision confirmed that "human rights legislation fits within the entire legal framework within which enterprises must function…and… that framework includes other standards that also reflect deep values of the community such as those established by workers' compensation legislation prohibiting an employer from placing an employee in a situation of undue risk, and the standards of the law of negligence."
The Court stated that this fuller legal framework must be considered when a company's occupational requirements are being assessed.
All of these issues come into play in the development and the implementation of a company policy.
Policy Development Process
There are a number of key areas that policies must address, and several difficult decisions that need to be tackled. The first step is to establish a background to the specific policy decisions that follow. There are some valid reasons for taking a "two step" process. The courts/arbitrators/human rights tribunals have found the reasons for establishing the policy - the thought patterns that go behind it - are just as important as the policy components themselves (see #2 below). In two recent decisions, the Supreme Court of Canada confirmed that to make what may be considered a discriminatory work standard acceptable (e.g. no alcohol use during the day, or individuals are subject to testing under certain circumstances, etc.), companies must meet the following tests:
The Court's direction has been used in cases involving alcohol and drug policies, including the Ontario Court of Appeal decision in the Imperial Oil policy, the federal Human Rights Tribunal decision in Autocar Connaisseur, and a number of arbitration cases.
Although the ultimate decision on a company policy and its implementation is normally made by Senior Management, the owners, or the Board of Directors depending on how the organization is structured, an important step in the process is to obtain input from company representatives who have had a chance to understand and debate the issues before making their recommendations. This is why most companies use a consultative process to arrive at their ultimate decision. For example:
In both approaches, though, it must be clear that the task at hand is to recommend an appropriate course of action for the organization based on a better understanding of the issues, assessment of need, and identification of overall objectives.
Consistent with the Supreme Court's direction, it is strongly recommended that in establishing company policy, careful thought be put to the following matters:
Key Policy Components
There is no 'typical' policy or program; if the steps above are followed, each program will reflect the unique corporate culture and values of the company, the fundamental aspects of the business it is in, the regulatory environment within which it must operate, and most important, the specific program needs. However, there are a number of key areas that policies must address, and several difficult decisions that need to be tackled.
There are four cornerstones that underlie the various policy details:
Each of these components should be included in any company program. The policy statement itself should:
Any provisions for social and business hosting should be identified either in the policy or as a stand-alone procedure and should ensure proper controls are in place to minimize risk associated with use of alcohol at the event.
Canadian unions, human rights bodies, privacy commissions and civil liberties organizations have not questioned an employer's obligation to provide a safe workplace and the importance of setting out clear and well-communicated policies to this end. Their major concerns have focused on the investigative tools used to ensure compliance, the consequences for a violation, and ensuring those with a problem receive appropriate accommodation.
Once an organization has set out specific rules and expectations, they need to activate investigative tools to help ensure those requirements are being met. There are a variety of options to consider including in a policy beyond alcohol and drug testing (addressed below), including:
Trends in Accommodation: The Substance Abuse Professional
Assessment, counseling, and treatment services have been available through a variety of private and public agencies across the country, although availability - particularly treatment beds - varies with the funding support they are able to obtain. Employee Assistance Programs (EAPs), either internally provided or externally contracted, have also been available for many years, but were usually offered as an employee benefit in larger organizations.
As more and more companies of all sizes have been putting in place policies in recent years, they have recognized the need to provide broad brush, confidential assistance programs.
Most EAPs provide access to services provided by a variety of professionals including psychologists, social workers, and addiction specialists. Although not limited to addictions, they can be one of the most effective ways to deal with alcohol and other drug problems in the workplace. An effective EAP provides confidential assistance with problems that interfere with an employee's ability to function on the job efficiently and safely through prevention, identification, assessment and referral, and follow-up services. It is normally accessed on a voluntary basis, although suggested referrals during the performance management process may also be triggered.
Although there have been professionals working in the field of substance abuse for many years, the concept of a "Substance Abuse Professional", or SAP, has taken on a new meaning when it comes to workplace policies in recent years. SAP services are entirely separate and different from the counselling services provided by an EAP. A SAP referral is normally triggered under a company alcohol and drug policy when an employee violates stated rules regarding alcohol or drug use (e.g. use on the job, a positive test result, etc.) and is subject to discipline. The SAP must have knowledge of and clinical experience in the diagnosis and treatment of alcohol and drug related disorders. Because of human rights obligations to accommodate an individual with a drug or alcohol dependency, the SAP's role is to:
Increasingly, employers are not waiting until a policy violation to trigger a SAP referral. Because of the greater obligation to address potential safety risk, increasingly employers are making directed referrals for a SAP assessment in a performance management situation where the employee specifically says they may have a problem with alcohol or other drugs. In this case, and especially in situations where the individual's work is risk- or safety-sensitive, employers can not ignore the situation. This is an opportunity to trigger an assessment and assistance for their problem. Failure to do so could present a safety risk to the individual and those they work with.
Introduction of Alcohol and Drug Testing
Many Canadian employers in other parts of the country are questioning whether they should introduce alcohol and drug testing programs for their employees and contract workers. Faced with increasing responsibilities for the actions of their employees and those they contract with, and aware of current alcohol and drug use patterns employers are looking at testing as a way to deter use and identify those who may be placing their co-workers and others at risk. As a result, a number of employers, particularly those in higher risk industries, are choosing to include testing in certain circumstances as part of their company policy.
However, they can not simply implement a testing program and assume it will be found acceptable by employees or the courts. Any testing that is introduced should be within the context of the company's overall approach to health and safety, and its specific requirements with respect to alcohol and drug issues.
Therefore, companies need to make a careful assessment of whether alcohol and drug testing should or should not be included in the overall policy - in other words, be able to explain how it contributes to the company's overall safety objectives. The introduction of testing in any workplace is a controversial decision, and should be made with full understanding of the role it can play, and consideration of whether it is justified for certain employee groups. Decisions are needed on who to test, under what circumstances, for what substances, using what technology, and what will be the consequence for failing a test, or refusing to be tested.
Circumstances for testing can include:
Some companies may conclude testing will not play a role in the implementation of their policy. Others may conclude testing should be triggered for all employees under certain circumstances, or for certain groups of employees (e.g. high risk) under other circumstances. Each policy must be absolutely clear on when testing applies, and the procedures which will be used, as well as the justification for its introduction.
More information on testing technology and the legal situation are found in additional resources on this web site.
IMPLEMENTATION AND COMMUNICATIONS
Once policy decisions have been made, planning for implementation needs to take place. A number of tasks need to be addressed before the policy is announced, and its implementation starts. These include:
When contracting for external services, companies/organizations should be extremely clear in assessing and identifying their program needs, so that they do not end up with products, or a long term service delivery contract, that does not meet those specific requirements, or provide the necessary level of quality in the most cost-effective manner. This is a particular priority when contracting for supervisor training, employee assistance and substance abuse professional services, and any testing component of the program.
A policy is of little value if it is not effectively communicated. In fact, with a subject matter as controversial as an alcohol and drug policy, the way in which the policy is communicated is probably just as important as the message being conveyed. It is crucial that communication is clear and consistent throughout the organization and that the policy be seen to have the support of top management. Companies should develop a communication strategy that ensures everyone that needs to know about the policy and procedures is informed and that identifies the most controversial components, where opposition may lie to them, and a strategy for responding to issues that are raised. Communication about alcohol and drug issues should not end with policy roll-out. Information should be easily accessible to employees on an ongoing basis, and highlighted as appropriate in safety meetings and through other venues.
One of the most effective ways to prevent workplace alcohol and drug problems, and to effectively investigate and take corrective action, is by first establishing a clear and comprehensive workplace policy. Each company must decide what will work best in their own environment; there is no model policy. Each program should be tailored to meet the specific needs of each workplace, and should be seen as a reasonable and responsible response to those stated needs. The result should be an appropriate balance between health and safety (due diligence) and respect for individual rights and privacy. This means finding a balance between measures to control or deter use (standards, investigation tools and discipline) and prevention measures (education, training, and employee assistance). Companies need to ensure they keep these considerations in mind as they make their program decisions.