By Jeffrey R. Smith Feb 01, 2024
All employers want their employees to report to work fit to perform their duties. Fitness for work is particularly important for safety-sensitive employers, as the consequences of an impaired employee making a mistake can be significant for the employee, other employees, and even the public.
However, the standards around what constitutes being fit for work can change, so employers have to be aware of evolving practices and legal obligations around what they can and can’t do in determining if employees are not impaired on the job and able to safety do the work.
Recently, the Royal Canadian Mounted Police changed its rules for front-line officers and others in safety-sensitive positions from a complete prohibition on using recreational cannabis use for one month before duty to just being fit to perform their duties when they report for work. It’s a change that reflects an increasing social and legal acceptance of cannabis as well as the reality that past use of cannabis doesn’t necessarily mean impairment.
But it also comes at a time when employers are more able than ever to keep track of employee activities, both at work and while off-duty, so employers who are concerned about potentially impaired employees have to walk a fine line with fitness-for-work policies.
“What we have now is a sea change in societal norms, which has coincided with a greater capacity in technology for employers to monitor things – but anytime the employer wants to either monitor or curtail off-duty conduct, its policy has to have an element of proportionality and be the least-invasive means to ensure its legitimate business interests,” says Michael Penner, a labour and employment lawyer at Kent Employment Law in Victoria.
Proportionality to purpose
When developing a fitness-for-work policy, a key element is that, like any workplace policy, it should incorporate three elements – it must be consistent with any applicable collective agreement and legislation, it must be proportionate to its purpose, and it must be clear and unequivocal, according to Penner.
“You’re essentially imposing the corporation’s will on a person’s personal life, so the proportionality is a juxtaposition of legitimate business interests and personal privacy or personal autonomy,” says Penner. “And employees need to not only know what the policy is, but they need to know what the consequences are for breaching that policy – and only then is the employer capable of enforcing it, but even then it needs to be enforced consistently so employees know what behavior is going to be offside.”
Penner adds that balancing business interests and safety with employee privacy and autonomy can be a thorny issue, so employers have to be prepared when drafting a policy to be able to justify it in the event of any legal challenge.
“Is the employer legitimately ensuring that it meets its obligations under occupational health and safety legislation, and is it meeting those goals with the minimum of invasion into the privacy of employees?” he says. “Is it maintaining a policy that’s going to be found legitimate and appropriate through the human rights lens?”
Drug and alcohol testing
Being fit for work means not showing up impaired, so drug and alcohol testing can be a key part of fitness-for-work policies. The appropriateness of such testing has been a legal battleground over the years, but it has to meet the same test in balancing the employer’s business needs and legal obligations with employee privacy.
“Drug testing can mean different things, depending on the job, whether somebody is exhibiting other signs of impairment, or post-incident – in each instance, what is the absolute minimum that is required for the employer to satisfy itself that employees are not performing work while impaired,” says Penner. “And if the policy exceeds that minimum, then the employer better have some pretty good justifications at every stage – the more invasive the policy is, the more you will need to buttress it with pretty compelling evidence that, but for that policy, there would be significant risk not only to the public and other employees, but the enterprise itself.”
Outside of testing – or in order to justify it – employers may include in their policies the ability to rely on observation of potentially impaired employees by management. However, the first step needn’t be punitive, but rather open the door to further investigation into the nature of the problem or deciding to test the employee, according to Penner.
“Observation of impairment is a bit of a double-edged sword for the employer – if it’s a single instance and you observe somebody stumbling and staggering, should that warrant a disciplinary response or should you just simply send that person home for the day and not make a presumption?” he says. “If you observe it more than once, that raises the issue of does this person have an addiction, in which case you may need to accommodate.”
Penner adds that when observing potential signs of impairment in employees, the context can change with every individual and the focus should be on safety while keeping in mind employee privacy.
“An employer could have easily as part of its policy a protocol to say, if your manager believes you to be impaired, they can excuse you for the day, maybe with pay or maybe not, or something along those lines,” says Penner. “No jumping to any conclusions, just allow that person the dignity of not having to confess to whatever is going on – it could be they have a legitimate medical condition that they don’t want to disclose.”
Broader policy
The RCMP’s revamp of its requirements around cannabis and fitness for work shows the change in focus from what used to be moral and reputational risk when cannabis was illegal to actual impairment, says Penner, noting that impairment can come from many things such as prescription medication.
“It takes the actual substance out of the equation, but looks at it in terms of how you’re presenting when you start your workday, you need to not be impaired,” he says. “Or if you are impaired, there needs to be a medical justification for your impairment, like to deal with PTSD.”
“If you’re in a high-risk industry, insisting that your employees are not deliberately impairing themselves before they begin their work and monitoring for impairment is reasonable,” adds Penner. “But if you’re going to monitor it, your starting point is what’s the least invasive thing we can do just to ensure that our workforce is safe and capable of doing the work that they have been assigned to do.”
