The law requires employers to support disabled employees, and substance abuse is a disability
With the increased use of drugs and alcohol during the pandemic, employers should consider an employee’s substance abuse from a safety perspective and understand they may have a disability that requires accommodation, partner at MK Disability lawyers, Leanne Goldstein says.
Goldstein says the blurring of work and family life has created many problems for individuals and employers, partly because of increased responsibilities. Many individuals simultaneously perform work and household responsibilities.
She says the checks and balances in the workplace may not exist the same way they do at home. An individual who might limit their alcohol or drug consumption to the weekends because there are rules in the workplace might be unable to distinguish between work and home time.
“The only thing that remained to some extent was, okay, well after work, or while we’re at home, or with our spouse, we’re going to use alcohol and drugs because what else is there to do?”
Goldstein says that less access to medical providers and mental health care was also a driving force in more substance use. In the past, individuals dealing with substance use issues might see their family doctors regularly, resulting in some assistance in an inpatient or withdrawal program or mental health support.
With the pandemic limiting the number of in-person medical appointments, she says people who might typically admit to “falling through the cracks” to a health professional after some probing was not getting help and intensifying their problem.
“It becomes a vicious cycle. It becomes more difficult for them to deal with their issues of substance abuse, as well as emotional and mental health issues and that increases the substance abuse.”
Under the Ontario Human Rights Code, employers must support employees with a disability to the point of undue hardship. However, Goldstein says it often becomes a scenario to discipline and ultimately terminate the employment of employees dealing with substance abuse even if “substance abuse is a disability.”
Employers weigh the impact of an employee’s conduct on broader business scenarios, but Goldstein says employers must know substance abuse is a medical issue and focus on balancing whether a situation will be dangerous to the organization or have legal implications.
Goldstein says that employees with substance abuse issues must understand that they will not be stigmatized or ostracized but be asked for information to accommodate their condition effectively within the realm of privacy protection.
An individual might require accommodations several times. Thus, employers offering benefits to their employees should consider benefits for substance use. Without mental health support, Goldstein says the risk of relapse and lack of functionality increases.
“This is not a behavioural issue. This is not something that employees can specifically control because it’s a very complex medical condition, and approaching employees with empathy and understanding can go a long way to retention of employees and creating a workplace that’s more supportive.”
She says disability lawyers have seen an increase in disability-related claims and are typically fighting against claim denials by long-term disability insurance companies.
Insurance companies might look at substance abuse issues from a medicalized approach and “dictate” the type of treatment people undergo by ensuring that individuals join straw or detoxification programs. However, Goldstein says these companies’ medical approaches to substance abuse must also ensure that employees have the necessary mental health support systems to prevent relapse and address the concurrent disorders that may have triggered their substance use.
Employers must ensure that an individual will have a successful return to work and maintain their functionality for as long as possible and ensure that it is not just a treatment program employees’ suffering from substance abuse attend, but are provided continually with support systems, says Goldstein.