Substance use in the construction industry The employer’s duty to inquire

By Andrew Nicholl, Roper Greyell LLP

This article addresses the connection between the crisis of problematic substance use in the construction industry and an employer’s duty to inquire (a human rights duty), for provincially regulated employers in B.C.

According to the B.C. Coroners Service, 35 per cent of the 6,007 people who died due to illicit drug toxicity between August 1, 2017 and July 31, 2021 were employed and half of those employed worked in the trades, transport, or as equipment operators. According to a survey of construction workers in B.C. by the Construction Industry Rehabilitation Plan and WorkSafeBC that has been cited in a number of news articles, one in three construction workers surveyed reported problematic substance use.

Different stakeholders, including employers, are working on various fronts to address this crisis. For example, a growing number of employers in the industry in B.C. have participated in the VICA-led Tailgate Toolkit Project.

The author has had the opportunity to present on the duty to accommodate to participants in the Supervisor Training program that is provided as part of the Tailgate Toolkit Project. Many participants (who represent employers) speak of the moral obligation and urgency they feel on this topic. But it is not easy or straightforward.

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For a number of complex reasons, many workers dealing with mental health or substance use challenges do not talk about it and one of the goals of the Tailgate Toolkit Project is to break down these barriers. In this author’s view, breaking down such barriers will also enhance workplace safety by reducing the risk of employees performing work when not fit to do so and improve the ability of employers to comply with their human rights obligations, as explained below.

The Duty to Inquire

Addiction and substance use disorders are recognized as a disability under the B.C. Human Rights Code. This means that if an employee has such a disability, they are entitled to certain protections, and their employer has certain obligations under the Code.

In general, employers are only legally obligated to accommodate disabilities they know about and where a failure to accommodate would result in adverse employment-related consequences for the employee with a disability. However, the duty to accommodate arises when an employer knew or ought to have known that an employee needs accommodation. Therefore, sometimes human rights obligations are triggered even where an employee has said nothing to the employer, due to a human rights concept called the duty to inquire.

In the context of a potential substance use disorder, this means that an employee’s behaviour can lead to a duty to inquire with the employee, even if nothing is reported. For example, if an employee with an otherwise stellar attendance record suddenly starts arriving late or missing work entirely, an employer may have a duty to inquire or investigate whether a disability could be the cause of the employee’s absenteeism issues.

These conversations must be approached with sensitivity and care. Identifying the problematic behaviour (e.g. punctuality/attendance), inquiring about the person’s well-being, and offering information about an employee assistance plan or other source of support are some of the questions that may need to be asked.

If those inquiries reveal that the employee may have a disability (e.g. a potential substance use disorder), the employer will also likely need to seek additional information (e.g. medical) to substantiate the disability and address the specific accommodation requirements (e.g. limitations and abilities). While a critical step in the accommodation process, employers also need to be mindful of employee’s privacy rights when making such inquiries.

Ignorance is Risk

Even if you set aside the many other business, operational, and legal pressures faced by employers in the construction industry, the practical challenges of addressing potentially problematic substance use in the workplace are extensive, particularly given the prevalence of reported problematic substance use in the industry.

For example, staying on budget and on time, while managing multiple projects, a dynamic workforce, and limited resources, are all factors that make it harder to identify and engage with employees who might need help. In addition, while not without limits, the duty to accommodate is onerous and requires accommodation up to the point of undue hardship for the employer. Employers who are not aware of, or shy away from dealing with such situations face significant risks.

First, as explained above, failing to comply with the duty to inquire can lead to human rights risks if an employee suffers an adverse employment consequence and files a human rights claim or grievance. It may seem easier to avoid asking questions that could trigger the accommoda- tion process but employer decisions that appear completely reasonable on their face can be found to contravene human rights law if an employer does not ask such questions in appropriate circumstances.

Second, failing to make inquiries or shying away from addressing potential concerns might also expose an employer to liability under occupational health and safety legislation and create additional risk in the workplace if it leads to an employee performing work when they are not fit to do so. This is particularly risky given the safety sensitive nature of construction work.

To be clear, these legal obligations exist in addition to the moral obligation that many Tailgate Toolkit Project supervisor training participants speak of. But they all compel the same general approach: developing a workplace where supervisors and managers do not shy away from difficult conversations and developing a culture where employees are comfortable disclosing that they might need help.

This is a challenging and complex issue for employers to navigate, including having conversations with employees and seeking medical information. Therefore, we encourage employers to consider getting legal advice if there is a concern about problematic substance use in your workplace.

Andrew Nicholl is a lawyer at Roper Greyell LLP, practising in management-side labour relations and employment law with a focus on employers in the construction industry. Andrew is passionate about working with construction industry stakeholders to better ensure safe and productive workplaces. He can be reached at anicholl@ropergreyell.com.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The document is for general information purposes only and does not constitute legal advice. n