Pubdate: Tue, 11 Jul 2006 Source: Business In Vancouver (CN BC) Copyright: 2006 BIV Publications Ltd. Contact: http://www.biv.com/ Details: http://www.mapinc.org/media/2458 Author: Glen Korstrom Bookmark: http://www.mapinc.org/testing.htm (Drug Test) CRACKING THE CODE Get It In Writing To Help Avoid Entangling Your Business In A Complex Debate Over Employee Conduct, Urges Lawyer Employers who want to create a safe workplace should write a code of conduct for employees and - importantly - have all staff sign to confirm that they've read the document. That's the verdict of Patricia Gallivan. The Lawson Lundell LLP lawyer warned that employers who believe common sense and oral instruction are sufficient in guiding workplace behaviour could be in for a serious surprise. This is particularly true, said Gallivan, when it comes to the thorny issue of employees who drink alcohol or abuse illegal drugs while on the job. If a boss ever catches an employee drunk or stoned at the workplace, it's certainly true that forbidding such activities in advance can strengthen the employer's hand to start a discipline process. But various court cases make clear that drug addiction is considered a disability and that, as a result, employees with disabilities are protected by human rights legislation. Gallivan explained that courts demand that employers accommodate disabled employees to "the point of undue hardship." Which means, in short, that employers should not immediately assume that they can fire any employee they find drunk at work. That, however, is not the end of the story. "A prohibition in your code of conduct clearly indicates to your employees what your expectations are," Gallivan said. "It also puts them on notice about how you will respond if there is a breach." The written code is the key, for while alcoholism and drug addiction are classified as disabilities, recreational drug-use is not. As a result, employees who think they can smoke marijuana or down a few pints with impunity during office hours could easily find themselves in situations where they could be fired. Gallivan stressed that advice can differ depending upon each case's distinct facts, but that one good universal piece of advice would be: explicitly outlaw using illegal drugs or drinking alcohol at work in a written code of conduct. That way, employees would find it very difficult to claim that they did not know that they were breaching workplace expectations. This can be particularly relevant guidance if the worker is employed for any job widely considered to be safety sensitive. Coast Mountain Bus Co. has a written policy which forbids drivers from drinking at work, said the company's director of communications, Doug McDonald. The Canadian Auto Workers union, which represents the company's 2,600 drivers, co-signed the policy, he said. "We have a number of workplace programs to help any of our workers who in their own lives are having trouble with drugs or alcohol and come to us in advance," said McDonald. BC Hydro Corp. senior media relations adviser Tarina Palmer said Hydro similarly aims to accommodate any workers who have personal problems with drugs or alcohol. Palmer explained that the company has a committee that reviews jurisprudence regarding drug testing policies and when it is permissable to fire an employee for drug use. "We're always looking at ways to improve our code of conduct," she added. "We look at things and if [explicitly stating that employees should be sober at work] appears relevant then we will look at adding it." Gallivan said some human resources professionals are capable of drafting codes of conduct without legal help, but that hiring a lawyer frequently adds value. "Lawyers ensure compliance with applicable legislation such as the Employment Standards Act, human rights legislation and privacy legislation. "That's normally where we get involved in reviewing policies to ensure compliance with applicable legislation," she said. "If a workplace is unionized, there's a collective agreement that governs." - --- MAP posted-by: Derek