Mitigating the Liabilityof Substance Abusein the Workplace

Michael D.A. Ford

October 6, 2003

The Emerging Phenomenon

Make Everyone Pay!

Employers & Unions

“Employers” The Nike decision 

On The Human Rights Front

(Unions)

 Renaud decision

 Canada Safeway decision

Is It A Matter Of Time?

Owner

Contractor

• Unsafe workers

Union

• Union dispatchers

Employee (the “Co-conspirator”)

Legal Confusion Continues

Entrop decision

A checkerboard based on scientific testing methodologies

Entrop used by the Alberta Human Rights Commission

Legal Confusion Continues

Meiorin decision

Rational connection

Good faith

Reasonably necessary

Legal Confusion Continues

Jacknife and Elizabeth Metis Settlement

What Does All Of This Really Mean?

Be pro-active – mitigate your liability

Possible Ways To Reduce Risk

Education and training

EAP

Rehabilitation

Testing

Establish a policy

A Policy Is Helpful…

Cornerstone of an approach

It is more than just testing

Party Sound Social Services (S.C.C.)

“Human Rights Code, which prohibits discriminatory discharges, is an implicit term of all collective agreements. Therefore, a discriminatory discharge of a probationary employee constitutes a violation of the collective agreement and is thus arbitrable.”

Conclusion

Mitigate, however

Do it right!