Section 1: Human Resources Sub-section: 1.1 Employee Conduct Policy: 1.1.10 Drug and Alcohol Date Issued: September 30, 2015 Date Revised: January 11, 2017 ____________________________________________________________________________________ 1 1.01
POLICY Listuguj Mi’gmaq Government is committed to the safety and productivity of all LMG entities, organizations and employees. The Listuguj Mi’gmaq Government recognizes that drug/alcohol use can limit the ability of employees to perform their jobs. The Listuguj Mi’gmaq Government recognizes that drug misuse (abuse) can have a serious and negative impact on the health and safety of LMG employees. LMG will not tolerate employees being unfit for any assigned duties due to the misuse or after-effects caused by the misuse of drugs and/or alcohol. The implementation of this policy will minimize the risks caused by impairment due to the use of drugs & alcohol and/or the misuse of prescription drugs to ensure a safe, healthy and productive workplace, especially in the case of safety-sensitive occupations. The policy will also outline the drug and alcohol testing procedures, the accessibility to a broader program of medical assessments, monitoring and support, details on duties to accommodate and the applicable progressive disciplinary measures to be taken. In order to ensure a safe and healthy workplace, the Listuguj Mi’gmaq Government has developed and implemented the following policy. This policy has been developed based on the Canadian Human Right’s Drug and Alcohol Testing Policy and it will define the instructions to be applied in the:
Prevention of Drug and Alcohol Abuse
Drug and Alcohol screening procedure
Duty to accommodate
Progressive disciplinary measure in situations where the employee is under the influence of drugs and alcohol.
1.02
No employee shall possess, consume, sell or transport alcohol or drugs while in the course of his or her duties or while on the premises of the Listuguj Mi’gmaq Government.
1.03
No employee shall make any commitments on behalf of Listuguj Mi’gmaq Government if he or she is impaired by alcohol or drugs or after having consumed two (2) or more standard drinks in the previous hour.
1.04
Employees who suspect that they have alcohol or drug dependency are encouraged to seek advice and to follow appropriate treatment. In order to support employees who, wish to address issues relating to alcohol or drug consumption, all employees are encouraged to seek help through the HR Department or their Department Director/Manager.
2 2.01
PURPOSE Listuguj Mi’gmaq Government is committed to ensuring the health and safety of all employees and the public at large, maintaining the integrity and reputation of Listuguj Mi’gmaq Government, and to providing special consideration for substance dependencies and medically necessary drug use. Otherwise, Listuguj Mi’gmaq Government does not tolerate the consumption, possession, sale or transportation of drugs or alcohol by employees while on duty or on the any premises of Listuguj Mi’gmaq Government and any premises affiliated with the Listuguj Mi’gmaq Government.
Section 1: Human Resources Sub-section: 1.1 Employee Conduct Policy: 1.1.10 Drug and Alcohol Date Issued: September 30, 2015 Date Revised: January 11, 2017 ____________________________________________________________________________________ 3 3.01
SCOPE This Statement of Policy and Procedure applies to all employees and contractual workers.
4 4.01
RESPONSIBILITY Managers are responsible for ensuring the consistent administration of this policy.
4.02
Employees (a) To minimize the risk of unsafe and unsatisfactory performance due to alcohol or drugs, employees are responsible for reporting fit to work and remaining fit for work throughout their shift. (b) Employees are responsible for performing their duties safely and acceptably without any limitations due to the inappropriate use or after-effects of alcohol or drugs.
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DEFINITIONS
5.01
“Accommodation” includes the necessary support to allow the employee to undergo treatment or a rehabilitation program.
5.02
“Bona Fide Occupational Requirement (BFOR)” Refers to situations where drug and alcohol testing is deemed by the employer to be a bona fide occupational requirement (BFOR) for safety sensitive positions. The following are some of the factors that may be considered by the Human Rights Commission in determining whether testing is a bona fide occupational requirement for a safety sensitive position: 1.Whether employees are under direct supervision; 2. Whether there are less invasive alternatives to drug and alcohol testing that may help employers determine whether employees in safety-sensitive positions are impaired on the job; 3. Whether there is evidence of a high incidence of drug use in the workplace or industry; 4. Whether the employer offers a comprehensive employer-supported rehabilitation program; and 5. Whether the employer is required to comply with legislation or regulations, such as occupational health and safety legislation.
5.03
“Drugs” includes illegal or illicit drugs and prescription or over-the-counter medications which are labelled or known to the employee to cause impairment and includes medical marijuana.
5.04
“Intoxicated” means the condition of a person who is showing signs of physical and behavioural change including the smell of alcohol on the breath, red rimmed eyes, staggering and/or aggressive or loud behaviour not typical to the person.
5.05
“Temporary Suspension”, for the purpose of this policy, means removal from the workplace and being sent home by taxi or other alternate transportation immediately.
5.06
“Workplace” This policy applies to all LMG employee’s during working hours, regardless of place of work. This includes but not limited to client premises, conference locales, an employee’s car if used for business purposes, Listuguj Fisheries Boat Fleet and any LMG issued vehicle.
Section 1: Human Resources Sub-section: 1.1 Employee Conduct Policy: 1.1.10 Drug and Alcohol Date Issued: September 30, 2015 Date Revised: January 11, 2017 ____________________________________________________________________________________ 5.07
“Supervisor” means a person who supervises workers (Employee) or the work done by others. In the context of this policy, the Listuguj Mi’gmaq Government, recognizes the following positions as supervisors: Director, Manager, Coordinator, Facilitator, Foreman, etc.
5.08
“Safety-sensitive position” Safety sensitive positions have greater risks involved in their work. Regardless of the degree of supervision, employees who work in safety-sensitive positions are required to perform work where impaired performance could result in a significant risk to themselves, co-workers, LMG property and equipment must be recognized as safety-sensitive. Due to the significant risks associated with these positions, employees will be expected to meet additional requirements with respect to drugs and alcohol under this policy. Listuguj Mi’gmaq Government Occupations that have been identified as safety-sensitive that require preemployment screening include: Captain/Fisherman (including; First Mates, Deckhand, Monitors, any other position that would be considered a crew member). Police Officers/Fireman/Rangers Heavy Equipment Operators/Truck Drivers/All Band Operated Vehicles
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REFERENCES and RELATED STATEMENTS of POLICY and PROCEDURE An Act respecting occupational health and safety Canadian Charter of Human Rights and Freedoms LMG HR 1.4.5 Modified Work Assignments LMG HR Code of Ethics 1.1.1 LMG HR 1.3.3 Progressive Discipline LMG HR Smoking/Vaping Free Environment 1.1.11
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FIT FOR WORK/Pre-Employment Drug and Alcohol Screening
7.01
Fit for Work Employees in safety sensitive positions of the LMG working on LMG premises or equipment must be fit and capable of performing their work. Fitness includes being free from the influence of the effects of alcohol, illegal drugs, medications, non-prescription drugs, prescriptive drugs that are prescribed for someone else, medicinal marijuana or substances that will affect or impair their performance.
7.02
Pre-Employment Drug and Alcohol Screening Pre-employment drug or alcohol screening is mandatory in all safety-sensitive positions as listed in 5.08 or such as when the individual has disclosed and existing or recent history of drug or alcohol abuse, or where a pre-employment medical exam provides the physician with reasonable cause to believe that an individual may be abusing drugs or alcohol and therefore may become impaired on the job. Any employment offer is conditional on passing the required screening.
If the pre-employment drug screening is positive, where it is ensured it is not a false positive, it will be recommended the individual seek drug/alcohol assessment and/or treatment, but this is strictly voluntary. The individual is not considered for hire if the test is positive. The individual can request a second drug/alcohol screening test that must produce a negative result 2 weeks
Section 1: Human Resources Sub-section: 1.1 Employee Conduct Policy: 1.1.10 Drug and Alcohol Date Issued: September 30, 2015 Date Revised: January 11, 2017 ____________________________________________________________________________________ after the first test before being considered for employment. The individual must pay for the second screening test and will be reimbursed the amount only if a negative result is produced and will be considered for employment.
If the individual tests positive for the second screening, then he/she will be required to see an addiction counsellor for assessment but follow-up treatment will be voluntary, not mandatory. The individual is not considered for employment at this time. A third screening can be taken only one month after the second positive screening.
If a negative result occurs on the third screening, the “Return to Work Agreement” comes into effect and the individual will be considered for employment.
After a third failure, assessment and treatment become mandatory. The individual must complete the treatment before being considered for employment, and the offer of employment is subject to the finding and recommendations provided by the addiction counsellor or treatment facility.
After a fourth failure, the person will be dismissed and not eligible for re-hire until “proof of sobriety” for a period of one year.
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PROCEDURE
8.01
If in the judgment of the Supervisor, an employee’s ability to safely or satisfactorily perform their duties has been impaired by drugs or alcohol, the Supervisor shall immediately take such steps as are necessary to prevent the person from causing any injury to himself or herself or others and may, if necessary, place the employee on a Temporary Suspension. (See section 9.07)
8.02
Subject to an exception under this policy, a breach of this policy may result in disciplinary action up to and including termination in accordance with and pursuant to LMG HR 1.3.3 Progressive Discipline.
8.03
(a)
(b)
(c) (d)
(e)
All employees are required to use prescription and over-the-counter medication, including medical marijuana responsibly. Employees are expected to consult with their physician or pharmacist to determine if the medication used may cause impairment. Employees are required to notify their Supervisor if they are under a medical program of treatment which requires the consumption of drugs, including medical marijuana, that may cause impairment. Notification of the treatment program should include the drug and dosage prescribed and the frequency of the dosage. Supervisors shall make an initial assessment of whether the impairment is likely to jeopardize the safety of the employee, co-workers or members of the public. The Listuguj Mi’gmaq Government may require an employee who is using prescription medication or over-the-counter medication, including medical marijuana, which is labelled or known to the employee to cause impairment to provide proof, reasonable in the circumstances, that such use is necessary and recommended by a qualified medical practitioner for the treatment of a medical condition or disability. The Listuguj Mi’gmaq Government may require an employee who is using prescription medication or over-the-counter medication, including medical marijuana, which is labelled or known to the employee to cause impairment to be assessed by a qualified medical practitioner to determine the
Section 1: Human Resources Sub-section: 1.1 Employee Conduct Policy: 1.1.10 Drug and Alcohol Date Issued: September 30, 2015 Date Revised: January 11, 2017 ____________________________________________________________________________________ expected level of impairment from such a program and to advise management of any accommodation which may be required. (f) Employees who are using prescription medication or over-the-counter medication, including medical marijuana, which is labelled or known to the employee to cause impairment may request accommodation in accordance with LMG HR 1.4.5 Modified Work Assignments. (g) Any authorized consumption of medical marijuana in the form of marijuana cigarettes must be in accordance with LMG HR Smoking/Vaping Free Environment 1.1.11. 8.04
Employees are prohibited from sharing their prescription medications, including medical marijuana, with co-workers. A violation of this prohibition will lead to disciplinary action up to and including termination for cause.
8.05
An employee who suffers from drug or alcohol dependency may be entitled to accommodation pursuant to LMG HR 1.4.5 Modified Work Assignments.
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Alcohol and Drug Testing
9.01
The following types of testing are included in the Listuguj Mi’gmaq Government workplace drug and alcohol screening program, for employees that are in a safety-sensitive occupation where screening is considered a bona fide occupational requirement: If screening is part of a broader program of medical assessment, monitoring and support, employers can test for alcohol in any of the following situations: On an unannounced basis, for employees who hold safety-sensitive positions; For “reasonable cause,” where an employee reports for work in an unfit state and there is evidence of substance abuse; After a significant incident or accident has occurred and there is evidence that an employee’s act or omission may have contributed to the incident or accident; or Following treatment for alcohol abuse, or disclosure of a current alcohol dependency or abuse. If testing is part of a broader program of medical assessment, monitoring and support, employers can test for drugs in any of the following situations: For “reasonable cause,” where an employee reports for work in an unfit state and there is evidence of substance abuse; After a significant incident or accident has occurred and there is evidence that an employee’s act or omission may have contributed to the incident or accident; or Following treatment for drug abuse, or disclosure of a current drug dependency or abuse. (Usually, a physician or substance abuse professional will determine whether follow-up testing is necessary for an individual.)
9.02
Unannounced Drug and Alcohol Screening The Listuguj Mi’gmaq Government reserves the right to carry out unannounced screening to establish if Employees are adhering to this Policy. Unannounced drug and alcohol screening will only be permitted where the Listuguj Mi’gmaq Government can establish: Evidence of a pervasive substance abuse problem in the workplace; In relation to employees working in safety-sensitive positions; and Where supervision of such workers in minimal.
Section 1: Human Resources Sub-section: 1.1 Employee Conduct Policy: 1.1.10 Drug and Alcohol Date Issued: September 30, 2015 Date Revised: January 11, 2017 ____________________________________________________________________________________ Refusal to agree to submit to such testing will constitute a failure on the part to the Employee to provide necessary co-operation in the Listuguj Mi’gmaq Government’s efforts to ensure the health and safety of all Employees. Consequently, the Employee may not be permitted to return to work and may be subject to discipline, up to and including termination. 9.03
Reasonable Cause and Post-Incident Drug and Alcohol Testing Reasonable cause or post-incident/accident screening for alcohol or drugs may be acceptable in specific circumstances in a safety-sensitive work environment. For example, following a significant accident, near miss or report of dangerous behaviour, LMG will have a legitimate interest in assessing whether an employee has used substance that may have contributed to the accident or incident. Post-accident screening if justified, will be conducted as soon as is reasonably practical. It should not be conducted when there is evidence that the act or omission of the employee could not have contributed to the accident-for example, when the accident is due to structural or mechanical failure. Drug and Alcohol screening is also acceptable when an employee reports to work in an unfit condition and there are reasonable grounds to suspect substance abuse. Reasonable cause and post-incident screening are necessary to meet the heightened safety standards required in risk-sensitive environments as long as screening is part of a broader program of medical assessment, monitoring and support. LMG may conduct Drug and Alcohol screening for reasonable cause and post-incident/accident situation involving employees in non-safety-sensitive positions as BFOR. Screening should be considered only where an employee’s on-the-job behaviour provides reasonable grounds to believe the employee is impaired by drugs or alcohol.
9.04
Suspicion of Impairment/Reasonable Cause Procedure The following procedure will be enacted if there is a reasonable belief that an employee is impaired at work: 1.
If possible, the employee’s supervisor/Director will first seek another supervisor/Director’s opinion to confirm the employee’s status.
2.
Next, the supervisor/Director will consult privately with the employee to determine the cause of the observation, including whether substance abuse has occurred. Suspicions of an employee’s ability to function safely may be based on specific personal observations. If the employee exhibits unusual behaviour that may include, but not limited to, slurred speech, difficulty with balance, watery and/or red eyes, dilated pupils, and /or there is an odor of alcohol, the employee should not be permitted to return to their assigned duties in order to ensure their safety and the safety of other employees or visitors to the workplace.
3.
If an employee is considered impaired and deemed “unfit for work”, this decision is made based on the best judgment of two members of management and DOES NOT require a breathalyser or blood test. The employee will be advised that Listuguj Mi’gmaq Government has arranged a shuttle service to safely transport them to their home address or to a medical facility, depending on the determination of the observed impairment. The employee may be accompanied by a supervisor/Director or another employee if necessary.
Section 1: Human Resources Sub-section: 1.1 Employee Conduct Policy: 1.1.10 Drug and Alcohol Date Issued: September 30, 2015 Date Revised: January 11, 2017 ____________________________________________________________________________________ 4. An impaired employee will not be allowed to drive. The employee should be advised if they choose to refuse the shuttle service and make the decision to drive their personal vehicle, the Listuguj Mi’gmaq Government is obligated to and will contact the police to make them aware of the situation. 5.
9.05
A meeting will be scheduled for the following work day to review the incident and determine a course of action which may include a monitored referral program as part of a treatment plan.
Disclosure of Drug or Alcohol Abuse As part of screening for fitness to perform work of a safety sensitive nature, LMG may ask employees to provide personal medical information through a pre-employment questionnaire or application form, or as part of a medical examination. Questions concerning use of alcohol and drugs may also be included dependant on the safety-sensitive job position listed in section 5.08. LMG may request employees who work in safety-sensitive positons to disclose current use of alcohol and drugs, as well as a history of alcohol or drug abuse within the last five to six years for alcohol dependency and six years for drug dependency.
9.06
Duty to Accommodate LMG will make every effort to accommodate employees who test positive to the point of undue hardship. Accommodation may include referring the employee to a substance abuse professional to determine if in fact he or she is drug-dependent, providing the necessary support to permit the employee to undergo treatment or a rehabilitation program, and considering sanctions less severe than dismissal. The extent to which LMG is required to accommodate an employee who is dependent on drugs or alcohol depends on a variety of factors, including the following: Health and Safety Concerns; Past efforts to accommodate; The response to prior treatment or corrective programs and prognosis; The nature and seriousness of the violation; The size of the operation; The economic conditions facing the employer; and The availability of other, non-safety sensitive, positions. In most cases, employees will be referred to a substance abuse professional to determine whether, in fact, they are drug or alcohol dependent. If they are dependent on alcohol or drugs, LMG will make every effort to accommodate them by providing the necessary support to permit them to undergo treatment or a rehabilitation program. LMG may be justified in temporarily removing an employee who is an active user or has a recent history of substance abuse from a safety-sensitive position. Once the employee has successfully completed a rehabilitation program, the employee should be returned to his or her position. Follow-up screening, conducted at reasonable intervals, may be a condition of continued employment where safety is of fundamental importance. If follow-up screening reveals continuing drug or alcohol use, further action, up to dismissal, may be justified. If a substance abuse professional determines that the employee is not dependent on alcohol or drugs, the employee should be returned to his or her position and appropriate action may be taken. Appropriate consequences for a breach of an employer’s drug or alcohol use policy depend on the facts of the case,
Section 1: Human Resources Sub-section: 1.1 Employee Conduct Policy: 1.1.10 Drug and Alcohol Date Issued: September 30, 2015 Date Revised: January 11, 2017 ____________________________________________________________________________________ including the nature and seriousness of the violation, the existence of prior infractions and the response to prior corrective programs. There are limits on the duty to accommodate. Accommodation is contingent on an employee’s responsibility to take matters into their own hands and ask for help. LMG has a duty to accommodate. However, if the employee is not prepared to participate in a meaningful way in any of the accommodation process or the measures offered by LMG, then undue hardship is established. At some point, the employee must take responsibility for their own behaviour, especially if it is related to drugs and alcohol.
9.07
All drug testers have taken an oath of confidentiality and employees in safety-sensitive positions will be screened prior to employment and unannounced with reasonable cause as determined by the employer. Each LMG Department must develop their specific procedure in line with their situation and compliant to the policy. This procedure must be validated by the Executive Director. (As an example: you will find a procedure applicable to Natural Resources Fisheries) 1.
2. 3.
4. 5. 6. 7.
8. 9.
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Captains are responsible for measuring the alcohol levels in the employee’s blood using the Alco test before each departure for the sea. The Captain must respect the procedures set forth by the Alco test manufacturer (procedures taught during the training). The Captain must submit himself to the Alco test in the presence of the second Captain and another employee. All detection tests must be carried out in a closed cabin of the vessel and the results must remain confidential but must be noted in a log book kept by the Captain (name of person, date, hour, result of test) The Captains must have received the training regarding the use of the CMI S-D5 Alco test. The Captain must regularly follow the Alco test maintenance and measuring procedure. Employees must be given the Alco test approximately 30 minutes before the departure. All results of 0.08 or over represent a failure of the test. The employee who fails the test must pass a second one just before the boat’s departure to validate the results. The employee who has failed the test can’t travel on the sea (whether it is a one or six-day stay) and consequently is not paid. Aboard the vessel or at sea (vessel untied from the wharf), the employer does not tolerate the use of alcohol. (zero tolerance policy). Detection tests taken at random may be carried out during the trip if the Captain suspects that and employee’s faculties are impaired by alcohol.
Refusal to Comply The Listuguj Mi’gmaq Government may conduct unannounced screening where reasonable cause exists as in (section 9.03). A refusal to submit to a screening is grounds for disciplinary action up to and including termination.
This policy was presented to LMG Directors on January 10, 2017 and approved by Chief and Council on January 17, 2017 with amendments as requested.