March 27, 2023
Basically, the duty to accommodate requires employers to make every reasonable effort, short of undue hardship to the business, to accommodate an employee with a disability within the workplace ― and this includes both drug and alcohol dependency. Such accommodation could consist of, but is not necessarily limited to: tolerance of repeated periods of absenteeism, re-training and/or moving the employee to a different position (perhaps with less responsibility), or modification of the employee’s schedule.While employers bear the duty to accommodate disabilities in the workplace, it is important to remember that it is the disability itself that needs to be accommodated, not the employee. As such, the accommodation that may be required is not determined by the employee’s own personal preferences. Rather, the duty requires a search for a “reasonable” accommodation that allows the employee to be a productive employee and safely engage in meaningful work. Although challenging, the goal is to find the balance between the rights of the employee and the ability of the employer to carry out its intended business without undue hardship.
A complicating factor in substance-abuse and dependency issues is that even if the affected employee seeks treatment and returns to active and productive employment, relapses are common and considered a part of the disability. As such, the duty to accommodate may be ongoing. Typically, the accommodation process in the context of substance abuse and dependency will inherently contemplate the likelihood of one or more relapses. Accordingly, the employer may be required to accommodate several relapses and associated periods of absence for rehabilitation before reaching the point of undue hardship.
Of critical importance in circumstances involving an admitted drug or alcohol problem is the imperative that medical evidence is obtained from a qualified source in support of the required accommodation. It is not enough for an employee simply to admit to having a dependency problem and to ask for help at work – although this is of course the first step. As with any other disability, when dealing with the potential need for accommodation in the workplace, an employer is entitled to information that includes, but is not necessarily limited to, the following:
- medical confirmation concerning the general nature of the disability and the employee’s specific functional limitations;
- a prognosis for recovery (the extent to which improvement is anticipated and/or possible, and the associated timeframe) and the potential for relapse;
- functional limitations or restrictions that may be considered permanent; and
- confirmation that the employee is following any prescribed treatment and/or rehabilitation plans, as well as identification of any medical side effects of such treatment that could have an impact on the employee’s ability to safely complete job duties and/or interact with others.
If an employee does not cooperate in providing this kind of medical information, an employer may be entitled to deny the requested accommodation, deny benefits and/or hold an employee out of work (without pay) until the necessary information is provided. Ultimately, an employee’s continued refusal to cooperate in the accommodation process, by refusing to provide necessary medical information or otherwise, may lead to the termination of employment, without any further liability on the employer.
It is important to remember that the employee has the right to expect that any medical information provided to the employer will be treated as confidential and used only for the legitimate purposes of the accommodation process. Further, employers should take care not to ask for too much information or unnecessary details. A good rule of thumb is to ask the employee for “just enough” information to understand how the disability will affect the employee’s ability to work and what accommodation may be required.
But what about the employee who is unwilling to admit to a substance abuse or dependency problem, or simply outright denies there is any problem at all? How far is an employer expected to go to accommodate a suspected disability in such circumstances? As noted above, an employee has an obligation to cooperate in the accommodation process, and this includes cooperating with a request for medical information. If an employee demonstrates obvious signs of an apparent substance abuse or dependency problem, but refuses to admit it, an employer will have the right to hold them out of work (with or without pay) and insist that the employee participate in a medical assessment to confirm the ability to attend work safely.
Additionally, don’t overlook the value of an employee and family assistance program (EFAP), if available as part of your larger company health and wellness program. The EFAP provides employees and their family members with accessible, confidential and immediate counselling support for a range of health and wellness issues.
Finally, it is crucial that any performance and attendance issues associated with a suspected drug or alcohol problem be addressed through appropriate progress discipline procedures and well-documented, including asking the employee on each occasion if there is a problem and suggesting treatment/rehabilitation. Having a clear and well-defined drug and alcohol policy within the workplace provides the basic foundation for effectively dealing with these types of issues. From the start of their employment, employees need to understand very clearly what is expected of them when it comes to drugs and alcohol in the workplace.
Ultimately, the employer has a legal responsibility to accommodate any employee with a disability, which includes drug and alcohol dependency. While the extent of accommodation should not cause the employer or business any undue hardship, the underlying principle is that every reasonable effort will be made to support the disabled employee, and the employer will act in sincere good faith in doing so.
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