With the upcoming holidays, drinking alcohol or being impaired at work is an issue that will be considered by many employers. Although people generally agree that alcohol and work don’t mix, the potential consequences of this kind of behaviour can spell disaster for both employers and their staff.
This blog addresses five issues related to alcohol in the workplace.
1. Can an employer test an employee for alcohol consumption?
The Ontario Human Rights Commission (OHRC) has published a Policy on Drug and Alcohol testing which states, in part:
It is the OHRC’s view that alcohol and drug testing is prima facie discriminatory and can only be used in limited circumstances. The primary reason for conducting such testing should be to measure impairment. Even testing that measures impairment can be justified only if it is demonstrably connected to the performance of the job; for example, if an employee occupies a safety-sensitive position, or after significant accidents or “near-misses,” or if there is reasonable cause to believe that a person is abusing alcohol or drugs and only then as part of a larger assessment of drug and alcohol abuse. It is the OHRC’s view that by focusing on testing that actually measures impairment, especially in jobs that are safety sensitive, an appropriate balance can be struck between human rights and safety requirements, both for employees and for the public.
We recommend against alcohol testing until after an employer has received legal advice.
2. Can an employer impose a term of employment that prevents an employee from drinking alcohol while at work or being impaired at work?
If a pilot, or a doctor/nurse, or a train conductor drinks on the job, his impairment can endanger the lives of others. For this kind of safety-sensitive position, the employer may want to include a term of employment which prohibits drinking more than say 8 hours before an employee starts work, or a specific penalty clause which states that drinking or being impaired on the job is just cause for termination. These terms of employment send a strong message to the employee that drinking or being impaired on the job will not be tolerated. For information of what kind of misconduct constitutes, “just cause”, click here.
3. What kind of liability can an employer incur if an employee drinks and drives?
If an employee drives as part of the job, it is very important that he/she not drink alcohol or be impaired on the job because the employer is often responsible for the employee’s actions. If there is a car accident, the employer could be liable for WSIB costs including those incurred by another employer if the accident involves a person who was working elsewhere at the time of the accident. For employees who drive during working hours, an employer can implement a policy which states an employee cannot drink during those working hours; including lunches with clients.
4. What kinds of legal problems can occur if an employee drinks too much at a company social event?
It is not unusual for employees to drink at company social events, particularly during the holiday season. It is however, imperative that employees do not drink and drive. If they do, the employer could be held responsible for any damages the employee causes while impaired. It is also important that alcohol intake is monitored because excessive consumption can lead to sexual harassment and other forms of misconduct. For information on how to navigate workplace complaints, click here.
5. Are there special considerations that apply to alcoholics?
Under the Ontario Human Rights Code, alcoholism is considered a disability and must be accommodated.
Obviously, an employer can only accommodate an employee’s disability if the employee discloses a disability. However, many alcoholics will not admit to being an alcoholic. Often it is not until after a person is fired that an alcoholic hits bottom, admits his disability and seeks help. For information on the potential cost of terminating a disabled employee, click here.
If you think an employee has a drinking problem then we recommend that you obtain legal advice before disciplining (including termination) an employee.
In February 2017, after a 40 day trial, an Ontario trial judge ordered the RCMP to pay Peter Merrifield $100,000 in general damages, $41,000 in special damages, and $825,000 in legal costs. In doing so, the trial judge recognized the tort of harassment. For my blog on...read more
Wrongful Dismissal Update: How to Reduce Termination Pay for Employees Who Earn Variable Compensation
Some employees receive a large percentage of their total compensation in variable compensation. A much litigated issue is whether the employer is required to pay variable compensation to a terminated employee during the applicable notice period and if so how is this...read more
An arbitrator who upholds a grievance can reinstate the employee, or order the employer to pay the employee damages. In a 2018 arbitration case, Arbitrator Surdykowksi decided how to calculate damages for an employee who was not reinstated. Facts Dr. Bernard was a...read more