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."