Impairment

Employer duties

Employers have a duty to take every reasonable precaution to protect the occupational health and safety of persons at or near the workplace. This duty includes providing the information, instruction, training and supervision needed to protect workers and to make sure workers and supervisors are familiar with hazards. [OHS Act, S.12]

Impairment policy

Every workplace, regardless of how many workers there are, should have a policy that addresses impairment, and a disciplinary policy that is clearly explained to all workers.

These policies will assist to:

• ensure the employer's due diligence with respect to the risk of impairment in the workplace;
• establish the procedures needed to minimize the risk;
• identify roles and responsibilities;
• identify reporting procedures;
• make sure supervisors and workers are adequately trained on how to recognize impairment; and
• outline the consequences of being impaired at work, including disciplinary action.

Employers should state in their policy what conditions will be considered as ‘impaired’, as well as the workplace’s position on using or possessing substances, or being impaired while at work.

Employers have the responsibility to make sure that workers are trained and understand the impairment policy.

Employers also have the duty, under human rights legislation, to accommodate individuals with a disability (including a disability from substance dependence) or a diagnosed medical condition. Any prescribed medication or treatment, including cannabis authorized for medical purposes, that may cause impairment or result in lowered functionality will need to be included in the workplace policy.

Recognizing impairment

While it varies from one individual to another, general observations for impairment can include:

• erratic behaviour, increased conflict, and overreaction to feedback or during interactions;
• ignoring safety procedures or taking risks;
• poor coordination or working in an unsafe manner;
• reduced productivity or work quality; and
• smell of alcohol or drugs, red eyes, or slurred speech.

Displaying some or all of the signs of impairment does not necessarily indicate substance use or substance abuse. Employers and supervisors should not make assumptions about causes of impairment.

As the Canadian Human Rights Commission states, there could be many reasons that explain these situations, such as:

• another disability or temporary medical conditions;
• conflict at work;
• job dissatisfaction or low morale;
• the stress in balancing work and caregiving obligations; and
• personal problems unrelated to work.

Employers should keep in mind that the worker may have a bad day; however, it is the employer’s duty to respond to suspected impairment.

Responding to Impairment

It is appropriate to ask the worker what is going on. State that the concern for the safety of the individual or co-workers. Based on the worker’s response, discuss options, where applicable and available.

Follow the steps outlined in your organization’s program. In some cases, it may be necessary to assign non-safety sensitive work or to ask the worker to stop their work.

A worker may need to be removed immediately from the workplace if:

• they are involved in an workplace incident;
• their behaviour or performance is having a serious impact on the workplace;
• impairment is suspected; and
• their behaviour puts their own safety or the safety of others at risk.

However, there are limitations to the employer’s right to ask for or to have access to the worker’s personal health information.

Provide information on your Employee Assistance Program, if one is available. Encourage access and use, and reassure the worker that the services are voluntary and confidential.

Worker duties

As a worker, you must: [OHS Act, S.16]

• work in compliance with the Act and regulations; and
• cooperate with the employer.

Workers should work in a way so they do not endanger themselves or other people in the workplace. This duty applies to the risk of impairment while at work and disclosing to your employer your need to use prescription drugs that could cause impairment, as well as any drug and alcohol dependencies that could affect the safety of yourself and your co-workers.

NOTES:

If cannabis is an authorized medical treatment for a disabling medical condition, or if the worker has an addiction to cannabis, these situations are considered a disability under the PEI Human Rights Act. The employer is legally required to accommodate the worker up to undue hardship. Visit the PEI Human Rights Commission website to learn more about the employer's responsibilities to reasonable accommodation in the workplace.

The law on drug and alcohol testing is complex and evolving, with different legal tests applying to different types of drug and alcohol testing. When an employer is considering adding a section on drug and alcohol testing in their impairment policy, they should seek legal counsel.