INDUSTRIAL & CONSTRUCTION
SAFETY TRAINING,
CONSULTING & HUMAN
RESOURCE SERVICES

   

Responding to Impairment

Responding to Suspected Impairment

  • Stating your concerns should be done in an unbiased and factual manner.
  • Do not place blame or make assumptions.
  • Express your concerns by using statements such as:
    • “We would like to talk to you as we have noticed the following actions or behaviours lately. We are concerned for your safety and that you or someone else may get hurt.”
    • “It was reported that you were almost involved in an incident. Can we discuss what happened leading to this event?”
    • “You don’t seem yourself lately and we are concerned. Can we talk?”
    • “Are you okay?”
    • “For your safety and the safety of others, we would like to discuss...”
  • Be clear - the intent is to maintain a safe working environment or that the organization is concerned for their well-being.
  • Try to anticipate the employee’s reaction so that you can be prepared.
  • Identify any consequences if the issue continues and what steps must be taken.
  • Discuss and outline what each party will do - when to improve the issue.
  • Determine a time to meet again when the employee is not showing signs of impairment to discuss further.
  • Every discussion should be accompanied by an incident report. (see handout.)
  • Report should include:
    • events preceding the incident 
    • suspicion concern
    • identification of the employee’s unsafe work practices
    • the matters discussed with the employee
    • that management and union representatives were notified
    • a list of all actions taken
    • any recommendations made to the employee
  • It is NOT the employer or supervisor’s duty to diagnose an employee, or to know if they have a disability (CHRC, 2017).
  • Employers can observe changes in an employee’s attendance, performance, or behaviour.
  • They can initiate a discussion about the issue(s) as related to work, and discuss possible solutions.
  • If an employee does not disclose a disability, the employer can outline the consequences of the observed change in behaviour, or address attendance or performance issues according to the steps outlined in the workplace’s policy.
  • The discussion between the employer and employee may need to occur more than once.
  • Document all discussions.
  • Provide support and practice empathy, not sympathy.
  • Focus on solutions, but if disciplinary action is necessary, it is important to follow through.

Practical Considerations

  • Have medical service provider confirm:
    • Employee suffering from disability (and doctor treating them for same)
    • No other remedies/medication that is non-impairing that can be used instead of cannabis
    • Ask doctor what dosage/day required form ingestion/frequency per day
    • Ensure doctor understands employee’s job duties
  • Avoid decisions based either on stigma around marijuana or; on assumptions about the use of marijuana and its impact on employees’ ability to do their jobs.
  • Like all employees with disabilities, the focus should be on whether the use of medical marijuana impairs the ability of the employee to perform the job.
  • Ensure relevant drug policies are updated and sufficiently address new marijuana reality.
  • Conduct fair, thorough, and impartial investigations.
  • Know what a patient requires to be legally authorized to possess medical marijuana.
  • Beware of the self-prescribing employee.
  • Don’t be afraid to question the simple prescription.

Workplace Accommodation

  • Employers have an obligation to take steps to adjust rules, policies or practices that have a negative impact on individuals, or groups of individuals, based on prohibited grounds of discrimination.
  • Accommodation must be individualized.
  • To the point of undue hardship.

****CHRC Impaired at Work Accommodation Guide

Supportive Medical Information for Accommodation

  • Supportive Medical Information for Accommodation
  • In order to properly accommodate an employee, the employer should have sufficient information from physician or medical professional.
  • This information balances employer’s need to maintain a safe workplace.
  • Still respects employee’s right to privacy.
  • Information requests should be limited to essential duties and accommodation needs.
  • Supportive Medical Information for Accommodation
  • Employer is not entitled to receive the diagnosis, nor are they entitled to the details of the treatment plan.
  • If a request for an independent medical evaluation is necessary, the Canadian Human Rights Commission (2017) recommends that the employer seek legal advice as this request may infringe on an employee’s privacy rights.
  • The employer and employee should share with the physician a complete description of:
    • the job and
    • related duties/responsibilities,
    • the work schedule,
    • if the position is classified as safety sensitive, and
    • any other pertinent information.
  • The physician should provide details on:
    • specific accommodation needs
    • any restrictions or limitations
    • any implications from the treatment plan regarding behaviour, attendance or performance
    • the plan for return to work if the employee is to be off work
    • if the employee can safely perform the job, especially if the employee is in a safety sensitive position
    • anticipated return to work date if on leave
  • Supportive Medical Information for Accommodation
  • One option is to use a “fit to work” assessment.
  • “Fit to work” or “fitness to work” is a medical assessment done when an employer wishes to be sure an employee can safely do a specific job or task.
  • The purpose is to determine if medically the employee can perform the job or task under the working conditions.
  • Typically, the employee will visit a medical professional who will determine if the person is able to do the particular job.
  • The medical professional may consider physical or mental abilities, sensory acuity, level of skill, functional limitations, etc.
  • The medical professional will typically only report one of three conclusions back to the employer:
    • fit,
    • unfit, or
    • fit subject to work modifications.
  • Once it has been determined there are any concerns or limitations, a return to work/remain at work plan can be developed and accommodations can be implemented.

Accommodation Steps

  • Accommodation Steps
  • Substance use can fall anywhere on a spectrum and does not necessarily mean dependency.
  • Need for accommodation may be required when:
    • there is a therapeutic/medical requirement
    • cognitive issue
    • diagnosed substance dependence that may impact workplace performances and safety.
  • When the employer is aware that accommodation may be necessary, accommodation would include the organization following established policy(ies).
  • Policies would cover cannabis use related to therapeutic needs, and disability due to substance dependence.
  • From these policies, a plan can be developed for each employee on a case by case basis.
  • Both parties should work together and agree to the accommodations.
  • Careful examination of the employee’s job responsibilities and duties should be performed.
  • While human rights laws require accommodation of employees with medical needs or disability due to substance dependence, there is the general duty requirement for employers to ensure a safe workplace.
  • Employers should ensure - if an employee is impaired due to prescribed medication or substance dependence, the employee is not permitted to engage in work that would endanger themselves or others.
  • The Canadian Human Rights Commission (2017) recommends the following components be part of an accommodation plan:
    • put in writing - roles, responsibilities and expectations
    • resulting agreement must be signed by all parties
    • identify accommodation components based on employee’s medical information
    • designate a ‘go-to’ person that an employee can go to with concerns or questions about accommodation plans
    • determine what changes in employee’s behaviour or performance that will be deemed significant and
    • when there would be a need for updated medical information.
  • While the employer has the obligation to accommodate, it may not be possible to adapt all jobs or positions to the employee’s ideal or preferred outcome.
  • The Canadian Human Rights Commission (2017) recommends “Being creative, flexible and open to trying different strategies. This  will be the key to success.
  • The goal should be to keep the employee at work where it is appropriate or support the employee in returning to work as soon possible.”
  • Having follow-up meetings at set intervals can help track the success of the accommodation and any adjustments can be made promptly.
  • There is no comprehensive list of accommodation solutions.
  • A collaborative process requires both employee and employer, with input from the medical professional to find suitable solutions.
  • Examples of accommodation include:
    • modification to the employee’s schedule to accommodate treatment, appointments, etc.
    • modification and adjustment to hours or performance requirements as per medical assessments/fit for work assessments/functional abilities forms
    • modification of the work environment (e.g., assistive devices, etc.
    • outline of expectations regarding conduct and behaviour
    • possible re-assignment of duties if the employee is in a safety sensitive position
    • short - or long - term leave

 

 

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