Random Alcohol and Drug Testing Policy: When is this discrimination in Safety Sensitive Workplaces

| August 4th, 2017 | No Comments »

Under human rights law, individuals that suffer from addiction are protected under prohibited grounds of discrimination. For this reason, any policy that has an adverse effect on employees with addictions will have to be a bona fide occupational requirement (BFOR).  This means that employees found in violation of such policies will have to be accommodated for up to the point of undue hardship.

For a job requirement or workplace policy to qualify as a BFOR, it first has to rationally connect to the performance of the job. For random and unannounced drug/alcohol testing in a safety sensitive environment, the goal would be that the employees performing the job are doing so under conditions that do not compromise safety. The condition of sobriety definitely rationally connects to the objective of workplace safety. Secondly, the policy has to be implemented with honesty and good faith. In this instance, it is reasonable to believe that random testing is a tool that would contribute towards a safer working environment in safety sensitive workplaces.

Lastly, the policy must be reasonably necessary to accomplish the objective of workplace safety. To establish this, it must be shown that not only is the policy necessary, but that impaired individuals cannot be accommodated without the employer suffering undue hardship. This requires exploring possibilities such as modifying tasks or providing alternative work. For workplace that is safety sensitive, there may not be alternatives to accommodate those unable to perform work in safety sensitive roles. It is always best to consult with an employment law expert when seeking to accommodate with minimal options. At the very least, an attempt must be made by the employer.

In terms of policy, employers should be cautious when implementing random drug testing. Methods of testing that do not measure present impairment will be found to be in violation of human rights. Methods of testing must be able to test for present impairment because this is a direct measure of an individual’s ability to perform while on the job. In the eyes of the law, measuring past impairment discriminates against those with addiction, while providing little indication of their present ability to perform their jobs safely.

When is Domestic Violence an Issue of Workplace Health and Safety

| August 1st, 2017 | No Comments »

It may not be well known, but there are instances where domestic violence is an issue of workplace health and safety. There is situation, therefore, where it is the employer’s responsibility to make sure an employee that is a victim of domestic violence is safe while at work. Violence may take many forms, as domestic violence is an attempt to gain power or control over a person with whom one has an intimate relationship. This may take many forms, such as texting, email, phone or stalking.

Where domestic violence is between two current employees, the employer has an unquestionable responsibility to ensure that the victim is free from violence while at work. This may include modifying tasks to ensure that the individuals do not cross each other during the course of work, limiting or eliminating communication between the employees involved, or even termination if it is impossible to ensure the victim’s safety and well being. In essence, domestic violence, in this case, would be viewed equally to workplace violence and should elicit the same response from the employer.

In the instance that the aggressor is not an employee, the employer still has a responsibility to ensure that the employee is safe while at work. This may include screening the employee’s calls, providing a photo of the abuser to security and reception, notifying security personnel in in case the aggressor appears at the workplace, ensuring that immediate help is called upon if physical contact is attempted at work, and providing a personal work plan to assist the victim. It is also important to ensure that the employee is safe during their route home after work, as the abuser may anticipate contact during this time. Allow the employee to express their concerns so that a meaningful plan may be developed.

Under the Ontario Occupational Health and Safety Act, employers are required to implement domestic violence policy and have a plan in place to minimize the impact of domestic violence if it becomes workplace issues. The program should include training to identify indicators, methods of reporting, educational materials and so forth. It is in the employers best interest to have an effective policy that goes beyond minimal requirements, as domestic violence may impact job performance, attendance, and workplace morale. Contact an employment law expert to ensure that workplace policies regarding domestic violence are current, and prevention programs are properly in place.

Can A Manager be Disciplined for After-Hours Conduct of Sexual Harassment?

| June 20th, 2017 | No Comments »

It may be commonly perceived that unacceptable conduct in relation the workplace only extends as far as the physical workplace or workplace events. Although questionable in certain circumstances, when the misconduct involves sexual harassment and is perpetrated by a managerial figure, prohibited workplace conduct may extend beyond the workplace itself to protect employees from unwanted and offensive conduct.

A case that illustrates the above is Simpson v. Consumers’ Association of Canada (OCA 2001). Simpson was an Executive Director for Consumers’ Association and was terminated for sexual harassment. The allegations against Mr. Simpson include propositioning a secretary, going to a strip club with a co-worker, having an open sexual affair with an assistant causing her to resign, and inviting workers to his cottage to swim unclothed among other things. Consumers’ Association terminated Simpson upon discovering the allegations and misconduct. Simpson then claimed unjust dismissal.

Simpson did apologize for the conduct in the workplace and claimed that the other misconduct happened outside of the workplace. However, the court found that there were workplace connections to the misconduct that took place outside of the workplace events. The court stated that sexual harassment is an objective standard which includes conduct that ought to reasonably be known as unwelcome. Given Simpson’s position in the company, he should have known his conduct was unwelcome and would receive adverse consequences. It is also important to note that the absence of sexual harassment policy in this workplace did not work in Simpson’s favour. Being in an executive position, sexual harassment policy could have easily been implemented by Simpson. This reaffirms the courts position on zero tolerance on sexual harassment absent of workplace sexual harassment policy.

Overall, sexual harassment perpetrated by an individual in a managerial position outside the workplace will have consequences. The fact that the conduct occurs outside the workplace does not protect managers or senior personnel from workplace discipline. The objective standard adopted by the courts ensures that sexual harassment by a managerial figure will not be tolerated outside the workplace, as this ought to be known to be unwelcome behaviour and could be subject to consequences.  If subjected to sexual harassment outside the workplace, it is always important to make the appropriate personnel aware and seek legal advice.

Important Information for Conducting Criminal Background Checks for Condition of an Employment Offer

| June 7th, 2017 | No Comments »

Employers must treat criminal record checks similarly to other protected grounds of discrimination such as race, religion and so forth. A criminal conviction for which a person has been pardoned is a protected ground of discrimination under human rights law.  Any workplace policies that inadvertently have an adverse affect upon individuals with pardoned convictions must be dealt with accordingly.

Hiring Process

An employer concerned about employing an individual with a past criminal record may request a perspective employee to undergo a criminal background check. However, this should be done with proper precautions. It is advisable to make the background check a requirement once a conditional offer has been made. This would avoid any allegations that hiring practices contravened human rights law upon a discriminatory ground. For instance, requesting a criminal background check after extending a conditional offer avoids the possibility of a hiring decision being influenced by past criminal offences.

Criminal Record Policy

Having a workplace policy that prohibits employment of those with past convictions for which a pardon has been granted is a violation of human rights law. However, there is an exception if, and only if, the workplace policy is a bona fide occupational requirement (“BFOR”). This means that under no circumstances is it possible to employ an individual with a past particular criminal conviction  without suffering undue hardship as an employer.

This is a difficult standard to meet. At the very least, a workplace policy that prohibits a past conviction should be limited to past convictions that closely relate to the job. For instance, if the nature of employment deals with handling sensitive financial information, then having a policy that disqualifies individuals based on recent past convictions of financial fraud would likely be reasonable.

Conclusion

When seeking to enforce or implement workplace policy that deals with criminal record checks, it is important to take all necessary precautions as this is a human rights matter. The policy should relate to past convictions closely related to employment and take into consideration the time past since the conviction took place. It is always best to seek consultation from an employment lawyer when dealing with human rights matters.

At what point is the duty to accommodate no longer necessary for an employer under human rights law?

| May 3rd, 2017 | 1 Comment »

Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground.  The most common grounds of discrimination within the workplace include religion, family status and disability. Other grounds of discrimination include race, colour, sexual orientation, age, sex, and others. Under human rights law, an employer must accommodate an employee if a workplace policy or job requirement effectively discriminates against an employee on a prohibited ground. The policy or job requirement does not have to overtly discriminate to be in violation. There simply needs only to be a discriminatory effect. The only exception is if the workplace policy or requirement qualifies as a ‘bona fide occupational requirement’ (BFOR). In order for a policy or workplace task to qualify as a BFOR, there are three points that must be satisfied that the courts have established. Below are each of the points along with an explanation as it relates to workplace policies or job requirements.

  1. The employer must show that the standard (policy/requirement) is rational in relation to the performance of the job.

This is a simple evaluation of whether the standard in question helps to fulfill a workplace goal. For instance, being able to lift 10 lbs. for an office worker may be required to access and retrieve large stacks of files. Having the requirement of being able to lift 10 lbs. in this case would qualify as a job requirement that rationally connects to the job.

  1. The standard in question must have been adopted in an honest and good faith belief that it is necessary to fulfil the work-related purpose.

The employer must also adopt the standard with the belief that it will fulfill a workplace goal or function. Maintaining the above example, the requirement of being able to lift 10 lbs. of weight for the purpose of retrieving needed work materials (such as large documents, files, etc.) would qualify as a good-faith measure. Being able to retrieve files on a regular basis that one is required to work with is a work-related purpose that would require someone to physically lift a minimal amount of weight.

  1. The standard in question must be reasonably necessary to accomplish the legitimate work-related purpose.

The final requirement is the most difficult to establish. In order to establish that the standard is reasonably necessary, employers must show that they would suffer ‘undue hardship’ by accommodating the individual. This step requires employers to explore alternatives that are less discriminatory and still accomplish the work related goal. Sticking with the above example, for a worker that cannot lift 10 lbs. due to disability, reasonable alternatives may include having other workers assist the worker when they are unable to lift the necessary documents/files, providing electronic files instead, or so on.

The idea is that it must be possible to accommodate the individual so that they can perform the essential duties required for their job. If this is not a possibility, then the employer has satisfied the requirements to establish the policy or work requirement is a BFOR. Typically, accommodation requires an employer to adjust working conditions so that the employee is able to perform the essential duties of the job. If the employer is unable to accommodate the employee to this point, then the burden of accommodation has been met.

Concluding Remarks:
Once a workplace standard is established as a BFOR, an employer is not required to accommodate. However, it is always advisable to explore alternatives to avoid unnecessary litigation. When exploring alternatives for accommodation it is essential that employers take an approach of good faith. This includes joint problem solving between the employee and considering doctor opinions if available. When in doubt, it is always best to seek the advice of an employment lawyer, as accommodation can present unique challenges that require legal expertise.

I felt forced to resign as a result of an illness or disability – what are my entitlements?

| April 27th, 2017 | 1 Comment »

Disability and Human Rights Law in the Workplace:

Employees have the right to be free from discrimination on the basis of discriminatory grounds, which includes Illness or disability. If an employee is faced with an illness or disability and needs accommodation to complete their work duties, an employer is obligated to accommodate to the best of their abilities. Unfortunately, there have been instances where rather than accommodating, managers or employers will seek to dismiss an employee or make the employee’s situation difficult to the point where they are forced to resign. This may include harassment, refusal to accommodate, or other actions that target the worker’s disability or illness in order to make work intolerable. In such instances, employee can quit and claim constructive dismissal. This simply means that the employer created an environment that would force any reasonable person to resign – in the eyes of the courts, this is the same as a wrongful dismissal.

Damages:

An employee that is wrongfully terminated is entitled to their severance package in addition to any entitlements for damages under human rights law.  Under human rights law, damages will be assessed by the seriousness of the discrimination and the effect it had on the employee (mental distress). Seriousness is assessed by the duration of the harassment suffered or an employee’s length of employment. This can apply to any harassment by management or supervisors, or coworkers that targets the illness/disability of an individual in the workplace. Under human rights law, these damages are intended to right the wrong of the violation suffered by the victim – not to ‘punish’ the employer. However, for extremely reprehensible acts, the courts seek to punish the action itself in order to send a message of retribution, denunciation and deterrence.  To highlight the difference, consider the case of Strudwick v. Applied Consumer & Clinical Evaluations, 2016 (ONCA).

Strudwick (Vicky) v. Applied Consumer & Clinical Evaluations:

In Strudwick v. Applied Consumers, Strudwick was an employee of 15 years that suddenly developed severe deafness from an unknown cause. Applied Consumers refused to accommodate Vicky, and her supervisor and general manager started a course of “public belittling, harassment and isolation in ways relating to her disability” and took additional action to make Vicky’s deafness more difficult in relation to her work duties. For instance, her supervisor made other workers call Vicky instead of using email for any inquiries, making it near impossible for Vicky to perform her job. At one point, management suggested that Vicky quit and claim disability. It was clear that these actions were done to force Vicky to resign. Management eventually dismissed Vicky on frivolous claims in front of her coworkers in a humiliating manner.

The termination was found to be wrongful dismissal and Vicky was awarded her entitled severance pay. Further, Vicky also was awarded $40 000 in damages for the violations she suffered under human rights law to rectify the wrongs. The judge, however, felt that simply rectifying the wrongs here did not denounce the nature of the actions management took. An additional $55 000 was awarded in punitive damages due to management’s harsh, malicious and reprehensible actions leading to termination.

Concluding Remarks:

The case above resulted in $246 049 in total damages due to further damages awarded for intentional infliction of mental distress and aggravated damages. If you are a worker faced with a situation of discrimination and harassment, it is important to seek legal consultation. Assessing damages for human rights violations may extend beyond human rights legislation for actions that are morally reprehensible. It is always best to seek the advice of an employment lawyer to ensure you receive just compensation in extreme cases.

Medical Marijuana Use in a Safety Sensitive Workplace: Can an Employer Deny an Employee Use?

| March 13th, 2017 | No Comments »

Medical marijuana may be prescribed for several medical reasons. Under human rights law in Ontario, workers have a right not to be discriminated against on the grounds of ‘disability’ which encompasses illness. The use of medicinal marijuana in the workplace must be treated the same as any other prescription drug that a worker uses for a medical condition. In order to use medicinal marijuana in the workplace, the employee must provide medical documentation stating the nature of the disability (reason for use), and whether he/she is able to safely work while using medicinal marijuana while requesting accommodation.

Under human rights law, employers must accommodate an employee with a disability up to the point of ‘undue hardship’. In safety sensitive workplaces, accommodation may present increased challenges for employers. Under occupational health and safety law, workers cannot be a threat to their own safety or the safety of others within the workplace. An employer must, therefore, balance the duty to accommodate and the need to maintain a safe working environment.

There is no blanket standard that can be applied with regards to accommodation of medicinal marijuana use in safety sensitive workplaces. Each case must be examined in relation to the worker’s needs, the work duties and organization of work, and other factors that may have an effect on accommodation. For instance, the interconnectedness of work roles on an assembly line may present greater difficulties in terms of granting a worker the time needed to take prescribed usage of marijuana. If usage requires inhalation, then the worker must be relieved by another available worker that can perform the same role. This is because inhalation must be done in a designated smoking area. Accommodation efforts in this hypothetical may raise question such as: can other workers that can perform the same role be made available at all times? Can the marijuana be taken by ingestion with food while on the assembly line? Does being under the influence raise a health and safety concern? Can this worker be retrained for other similar roles that would alleviate potential health and safety and/or accommodation issues? With regards to the worker’s ability to perform the job duties without any concern for health and safety while under the influence, the worker’s physician must provide documentation showing that there are no issues.

The above was only one of many different scenarios that may arise. Employers are advised to have sufficient workplace policies with regards to prescription medication and workplace safety. This includes having procedures for reporting the use of medicinal marijuana and requesting accommodation, proper procedures for using medicinal marijuana when needed, and defining what is considered impairment with regards to health and safety matters. This is by no means a comprehensive guide. The consultation of an employment law expert should be sought so that unnecessary and costly future litigation is avoided for failing to accommodate up to ‘undue hardship’.

Employee Medicinal Marijuana Use and Workplace Policy: What Are the Implications?

| March 6th, 2017 | No Comments »

If an employer has a workplace policy that restricts or prohibits the use of medicinal marijuana this could in effect be grounds for discrimination under human rights law. Although the policy may not explicitly target an individual, or be discriminatory due to the language used, it is the effect of the policy that is important. If the effect of the policy results in an individual facing inadvertent discrimination, then the employer must accommodate up to the point of undue hardship.

For instance, suppose a workplace policy limits the use of medicinal marijuana to certain times during the working day. This may not seem discriminatory since the employer does allow those individuals that need the use of medicinal marijuana to do so; however, there may be certain individuals that are negatively impacted. Certain cases may involve an individual that deals with unpredictable chronic pain. If proper treatment for this individual involves the use of medicinal marijuana on an as-needed-basis, then any policy that restricts such use would in effect be discriminatory.

An employer would legally be legally obligated to accommodate in instances where individuals are adversely affected up to the point of ‘undue’ hardship. Simply, the employer must accommodate in a way that would allow an individual to perform the essential duties of the job unless doing so results in unreasonable hardship for the employer. ‘Undue’ hardship is an elusive standard in employment law so if you are faced with any concerns of medicinal marijuana use in the workplace and workplace policy, seeking the consultation of an employment law expert is necessary. Safety sensitive workplaces also add an extra element of complexity. This would require the employer seeking information on the effects the medically prescribed marijuana has on the individual in relation to their job duties and workplace safety, just as would be required for any other medically prescribed drugs. Again, the advice of an employment law expert is strongly recommended in these circumstances.

What age discrimination looks like in the workplace

| January 11th, 2017 | No Comments »

“We do not want to invest in someone who will retire so soon.”

“Perhaps you would benefit from working with people your own age.”

“We prefer to maintain our youthful culture.”

“We prefer to hire more mature employees.”

What do all of these statements have in common? In each one, the speaker is drawing a distinction between the recipient of the statement, and those of a different age group, which negatively affects the recipient.  In the workplace, this can amount to discrimination on the basis of age, or “ageism”.

Age discrimination in the workplace is illegal, and all employees over the age of 18 (with limited exceptions) benefit from the anti-discrimination provisions of federal and Ontario human rights legislation.

Age discrimination can occur anytime an employee is unfairly distinguished because of his or her age.  Ageism does not need to be overt, or plain and obvious, in order to constitute discrimination.  In fact, ageism is quite often subtle, and done without malice or realization that ageism is occurring.

For example, an employer may want to maintain a certain culture that is more prevalent amoung younger generations, thereby denying employment to a senior applicant in the process.  While the employer’s intent may have been innocent, the consequence is that an older job applicant has been unfairly denied employment for no reason other than his or her date of birth.

Similarly, an employer’s desire to maintain a more mature workplace may inadvertently hold younger employees to higher standards in order to obtain employment.  The employer’s intent may be sincere, but the way in which prospective employees are vetted may not be.

Here are some important things both employers and employees should remember in order to avoid age discrimination:

  • Employers cannot deny a benefit or opportunity (such as employment, promotions, raises, etc.) to an employee that is in anyway motivated by the employee’s age
  • Mandatory retirement after a certain age is illegal
  • Even though laws dealing with age discrimination only apply to employees over 18 years of age, employers are still bound by their duties of good faith and fair dealing in connection with their younger employees
  • Anti-age discrimination laws apply not only during employment, but during the application and screening process as well.

Author: Marc Kitay, Employment Lawyer

5 Things That Make For a Hostile Work Environment

| December 12th, 2016 | No Comments »

Hostile Work EnvironmentA hostile work environment is created when an employer or colleague behaves in such a way that it is difficult or impossible for an employee to continue working. A hostile work environment is often considered a form of harassment.

Below are five actions that can accidentally, or on purpose, make for a hostile work environment, and how to resolve them:

  1. Verbal abuse or physical threats against an employee’s well-being. It goes without saying that yelling, swearing, or making verbal threats of physical harm towards an employee will create a hostile work environment. Violence itself is not necessary, the fear of harm may be enough.
  1. Insulting or degrading comments based on the personal characteristics set out in the Ontario Human Rights Code. Comments or actions that are unwelcome and based on personal traits like race, age, gender, religion or family status, to name a few, will create a hostile work environment.
  1. Unwelcome sexual remarks or contact, leering, unwelcome requests for dates, displays of sexually offensive pictures, or the spreading of sexual rumours. In addition to creating a hostile work environment, such behavior may also result in a claim of sexual harassment.
  1. Conduct that intimidates, humiliates or demeans an employee. Insults, name calling, or the spreading of rumours can amount to workplace bullying, and a hostile work environment.
  1. Targeting a particular employee by providing them with excessive and unjustified criticism, impossible goals and deadlines, or sabotaging the employee’s work. Such behavior is conducted in bad faith and is another form of bullying.

It is the employer’s responsibility to address and prevent conduct that has created a hostile work environment. An employee faced with a hostile work environment should report any harassing behavior to a superior. Once the employer is made aware of the allegations of harassment, there is an obligation on the employer to investigate and resolve the situation.

Employers are required to prevent hostile work environments from developing.  Under the Occupational Health and Safety Act, employers with five or more employees are required to prepare a workplace policy about workplace violence and harassment. Employers must also develop and maintain a written program to implement the policy, which must include measures and procedures as to how workers are to report workplace harassment, as well as setting out how incidents or complaints will be investigated and dealt with.

Finally, if an employee is subjected to behavior that is in violation of the Ontario Human Rights Code, the employer may be faced with a human rights claim if they allow the hostile work environment to continue or develop.  Employers should take allegations of a hostile work environments seriously, and also be pro-active in fostering a safe and healthy work environment.

Author: Whitney Manfro, Whitten & Lublin