November 2, 2018

Author: Dylan Snowdon

When Are Employees Fit to Work?

Assessing fitness to work is important in all workplaces, not just safety sensitive workplaces. Assessing fitness for work is also about more than testing employees for intoxication.

Alberta employers are usually aware of their obligations to provide a safe working environment, but are not always so alert to their responsibility of ensuring employees are fit to work in all working environments.

In safety sensitive workplaces, it is common for employers to enforce drug and alcohol policies designed to ensure employees are fit to work, but Alberta’s Occupational Health and Safety laws require that employers do more than examining sobriety when determining if a person is able to safely fulfill their role.

In assessing fitness to work, these three pieces of legislation are key to governing an employer’s obligations:

• Occupational Health and Safety Act
• Alberta Human Rights Act
• Personal Information Protection Act

These statutes create the duties to provide a safe workplace and to accommodate disabilities, and the limitations of how much information can be gathered from employees.

In Alberta, new OHS laws came into effect on June 1, 2018, bringing the requirement for employers with 20 or more workers to have a health and safety program established in the workplace. A health and safety program is a coordinated system of procedures and processes used to improve occupational health and safety and prevent injury and illness in the workplace.

In order to meet assess fitness to work as part of an organization’s requirements to provide a safe workplace under OHS laws we suggest taking the following steps:

1. Have a specific Fit to Work policy that sets out a road map for both workers and managers to follow in establishing and following requirements for reporting and dealing with concerns or issues. A Fit to Work policy can include references to intoxicating substances and requirements to report impairment.
2. Have your internal health and safety program and your policies consider mental health issues in addition to physical safety. Lack of sleep, changing shift schedules, stress, grief, depression, physical injuries, medical conditions, exposure to violence, and many other factors impacting employees’ lives can affect whether they are able to function safely in their role.
3. Ensure your organization has up-to-date position descriptions for your workers. Position descriptions are great HR tools for assessing business needs and evaluating candidates during recruitment, but they are also excellent for determining the safety needs of workers.
4. Managers and supervisors should maintain regular contact and open communication with employees. Training your managers and supervisors to check in with employees regularly is important not just to verify physical ability to work, but also to assess any concerning changes in mental capacity. Having regular conversations allows supervisors to notice when someone is acting out-of-character or being exposed to factors that may impact their ability to work safely, and may be in need of assistance. Regular contact can be anything from keeping updated on operations to small talk about the news or the weather.
5. Ensure that workers are not only aware of the benefits provided by your organization, but also that they are reminded from time to time about how to access those benefits.

If you have questions about assessing your workers’ ability to work safely, the lawyers at Carbert Waite LLP are available to discuss your unique circumstances and how to efficiently manage the legal requirements of creating a safe workplace.