This article was produced in partnership with Roper Greyell LLP
Mallory Hendry of Lexpert sat down with Mike Hamata, partner at Roper Greyell, to discuss what employers need to pay attention to in the wake of the legislative changes.
The Federal Government recently announced decriminalization of possession less than 2.5 grams of opioids, cocaine, methamphetamine and MDMA for those over the age of 18 in British Columbia. A three-year exemption period from the federal Controlled Drug and Substances Act will begin on January 31, 2023. One aim of the legislative change is to reduce “shame and fear” associated with substance use, as a part of the ultimate goal to reduce the number of deaths in BC caused by the toxic drug supply. Many employers in the province looking at this change are “unsure if and how this impacts what they do in their workplaces or on their job sites,” says Mike Hamata, partner at Roper Greyell LLP.
While some necessary responses are straightforward – for example, most drug and alcohol policies prohibit employees from possessing drugs that are prohibited by law when they are on site or at work, and that language needs to be updated to address the decriminalized substances – and duties imposed by the Workers Compensation Act to ensure a safe workplace continue to apply, there are some potential complications that should be considered in light of the legislative changes.
Employers still have the obligation to ensure the workplace is safe and an element of that is ensuring workers are not impaired on job, whether from drugs, alcohol, fatigue or stress. Employers may also have a duty to inquire about an employee’s potential substance use disorder if the employer has a reasonable basis to conclude that an employee may have such a disorder. That implied or actual knowledge can trigger a duty to accommodate employees with substance use disorders, including those who are seeking to return to the workplace following treatment, up to the point of undue hardship. That framework is unchanged. But the factual circumstances could potentially change in light of the announced decriminalization, Hamata notes.
“Prescription guidelines may evolve to allow doctors who treat patients with substance use disorders to prescribe maintenance doses of these soon-to-be-decriminalized substances as part of a medically supervised return-to-work plan. Employers are going to have to consider how they will respond to that potential circumstance and understand whether they can accommodate an employee who is continuing to take what was previously a controlled substance, under medical supervision.”
Whenever an employee wants to return to work following a medical leave, an employer must follow the accommodation process and work with the treating medical professional to understand if the employee is taking any medications that could impact their ability to do their job safely and understand the nature of any limitations the employee may have because of that treatment plan. But if the prescription is for one of the formerly controlled substances “the nature of those limitations may have changed and the employer has to assess that,” Hamata notes. If a returning employee’s prescription is a certain amount of fentanyl per day, employers aren’t medically trained to understand what that means – people who are long-term, heavy opioid users may need a regular, small dose just to function normally, for example – which means it’s important for employers not to have a knee-jerk reaction but get more information about side effects and limitations from the treating physician.
If an employer who has a safety-sensitive worksite is informed an employee will be using one of these newly decriminalized substances in small amounts, under medical supervision, employers could ask if the employee is able to use the substance before coming to work to avoid having the substance in the workplace, which “is a problem in and of itself that employers may be reluctant to accommodate. That’s something to factor into your undue hardship analysis – but the first step is to ask more questions of the treating medical professional.” This is a similar framework as currently applies to employees seeking to return to work under a medically supervised plan that includes Opioid Agonist Therapy like suboxone or methadone, which might cause limitations relevant for the employment context, like drowsiness.
“Employers are not entitled to a diagnosis, but they are entitled to a prognosis and to clear, credible and current medical information in the accommodation process,” Hamata says. “It’s important to work the accommodation process in good faith, as required by law, so that if you find yourself in front of the Human Rights Tribunal or in a labour arbitration, you’re able to ‘show your work.’”
Employers are still entitled to have in place drug and alcohol policies that prohibit employees from being impaired at work no matter what the legal status of a substance. The recent legislative change is similar to the 2018 decriminalization of marijuana in that just because these substances will no longer be controlled doesn’t mean, outside of a human rights context, employees are free to use them at work: employees can’t bring a six-pack of beer for their lunch break, for example, even though alcohol possession is not illegal.
But considerations may shift again, Hamata warns: he’s currently keeping an eye on discussions within the construction industry about incorporating a harm-reduction approach to drug and alcohol use at work. One intent of that approach is to foster early disclosure of a substance use disorder, and to ultimately minimize employer liability. This conversation is in line with a growing world view that abstinence may not be the only effective way to keep employees protected from B.C.’s toxic drug supply. Harm reduction in the workplace remains controversial, with some medical experts opposing a harm-reduction approach and strongly advocating for abstinence. However, workplace harm reduction may be an effective tool for saving lives, that can also be congruent with employer’s legal obligations. In many respects, a workplace culture that incorporates harm reduction and fosters disclosure is more in line with employers’ duties to inquire and to potentially accommodate. Conversely, a workplace that may incentivize employees to hide their substance use disorders, could create a scenario where employers may fall short of the duty to inquire.
“Fostering a workplace where you can have those conversations with employees is good for legal obligations, and it also can prevent people from dying as a result of the toxic drug supply – and that’s one goal of this legislative change,” Hamata says. “It’s a very active debate and that’s reflected in the time-limited nature of the legislative change. We’ll live with the exemption for three years and then all interested parties will be better informed with more data about whether this does in fact save lives.”
Mike Hamata practises in all areas of employment and labour law, including disputes with unions, workplace safety, human rights and employment litigation. Mike helps employers plan workplaces that minimize legal conflict and maximize productivity, efficiency and profit. When employees or unions create conflict, Mike is a relentless, strategic, and practical advocate and a well-known fixture in labour arbitrations and at labour boards for both federally and provincially regulated employers. He assists employers with collective bargaining, wrongful dismissals, human rights claims, workplace safety (including serious incident and fatality investigations), picketing injunctions, and strike planning.