Employee Substance Abuse: You Have a “Duty to Ask”

Employee substance abuse issues can be tricky. If your employee comes forward and tells you that they have a substance dependency (alcohol, drugs, etc.), under the Human Rights Code, it is looked upon as a disability, and termination under such conditions is not only unwise, it will put the company at serious risk of a discrimination lawsuit. If your employee has not come forward with a substance abuse issue, but you suspect they have one, you are under the obligation to investigate.

Dependency issues can present in many ways: exhibitions of dangerous, erratic, or unproductive behaviour at work, irritation, lethargy, etc. If you observe these, you may want to call them in for a meeting to discuss their behaviour and ask if there is any reason for their declining performance. At this time, they may come forward with their issue. When you meet with your employee to ask if they have a dependency issue, make sure have to another supervisor in the room as a witness.

Once you ask, one of two things will happen:

1. They will say YES: In this case, you cannot fire them for addiction-related behaviour (i.e. showing up impaired or hungover), nor for poor performance related to their addiction. The Human Rights Code identifies substance abuse as a disease and a disability and is therefore protected grounds. If they do say yes, the employee assumes a duty to seek help, meaning they must attend counselling or a rehab program etc. If they do, you must keep their position open to them. If they refuse, you may be able to proceed with a termination due to work performance and behaviour, at the consultation of a lawyer.
2. They will say NO: In this case, you may be able to discipline and/or follow through with termination if they have repeatedly and willfully violated company policy (assuming you have a policy regarding drugs and alcohol – if not, CFIB has a sample template for you).

If an employee is clearly impaired at work, management has both the right and the responsibility to manage, but bear in mind that alcohol and drug addiction should be treated as a disability. In other words, you have the right to engage in the rule of discipline for misconduct and inappropriate behaviour, but if you have information or evidence to suggest an addiction, assistance should be offered in the form of medical treatment, participation in recovery programs should be encouraged, and the employee should be given the appropriate time to recover. Additionally, you cannot treat them differently than other employees once they identify themselves with substance issues. You should also do your best to maintain their privacy surrounding this issue. 

Going forward, it is important to treat this disability with care and compassion, which can be difficult if you are feeling frustrated with the employee. You can discuss potential treatment options with them and what you can do to help them with their issue. They are likely aware that this could cause an issue at work and may be sensitive to it. You may choose to discuss some of your concerns with them (for example, access to narcotics if they work in a vet office), and ask if they have any concerns, going forward. This discussion may help clear the air, so they do not feel an un-spoken distrust. Offer as much support as you can in the employee’s recovery. Give them as much time as they need to complete the rehabilitation program. In addition, their job needs to be available to them when they return.

Where/how to get help

Depending on the substance your employee is addicted to, your employee may need a combination of counselling and detox, as well as rehabilitation therapies. Because of this, you may want to direct them to an all-encompassing addictions services provider.

The addiction counsellor provides consultation and works collaboratively with other counsellors, health care professionals and the client and client's family in the identification and resolution of client/family care issues, cultural and language barriers, ethical dilemmas and coordination and integration of care, and makes referrals to other service providers as appropriate.

It is your duty, as an employer to accommodate and be helpful, it is also the duty of the employee to seek assistance in the form of rehabilitation. Ultimately, if they refuse and their performance at work suffers or becomes dangerous, you may be within your rights to terminate. Before doing so, CFIB highly recommends consulting a lawyer.

From our 45-plus years of helping CFIB members just like you, our Business Resources team has insights and tips to help you handle these situations well. You are invited to contact one of our business counsellors at any time by calling 1-888-234-2232. Also, you can check out our drug and alcohol policy template.