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

What to do about Bullying in the Workplace

| November 17th, 2016 | No Comments »

bullying in the workplaceBullying was unacceptable when you were a kid on the playground.  It is no different that you are adult in the workplace.  Whether it is your co-worker or your boss, it is not allowed.  If you experience bullying at work, you can confront the bully.  If you are not comfortable doing that (perhaps because your boss is the bully), consider contacting a human resources representative, a member of the company’s joint health and safety committee, or your boss’ boss.  It is also important to review any discrimination / harassment / bullying policies and complaint processes that applies in your workplace, as this will help guide your path.

Usually, the complaint should be handled by someone objective (not the person you complained about), and both you and the person you are complaining about will be given an opportunity to explain what happened.  Occupational health and safety legislation sets out certain basic requirements for harassment investigations.

Since bullying can often be difficult to prove, do your best to keep track of instances of bullying – keep emails where the bully’s tone was unreasonable, keep doctors notes regarding any impact the bullying has had on you, and create a journal listing the details of every time you felt bullied – details like where it happened, when it happened, who witnessed it, and what exactly what was said.  Try to describe the event in a fair and objective way.  These steps will help to ensure that your complaint is taken seriously.

If none of those private options work, consider contacting the Ministry of Labour.  If the company does not fulfill its basic obligations to investigate, an inspector from the Ministry can appoint an investigator, at the company’s expense, to ensure that your complaint is investigated and that it is done properly.

Of course, you can also seek legal advice at any time.  Depending on the nature of the bullying, the company could be liable for, among other things, constructively dismissing you, breaching your human rights, or intentionally inflicting mental distress on you.

Author: Stephen Wolpert, Whitten & Lublin

Important Internship Laws for Employers and Interns

| September 8th, 2016 | No Comments »

internshipsIn 2014, Ontario’s Ministry of Labour conducted an inspection blitz in connection with unpaid internships.  Of the 56 companies investigated, the Ministry issued 36 orders regarding non-compliance with the Employment Standards Act, 2000.  The inspection underscored the unlawful manner in which unpaid interns are being used across the province.

The default law in Ontario that applies to interns is that a person who conducts work is entitled to be compensated accordingly.  This principle encompasses laws regarding minimum wage, vacation, hours of work, public holidays, notice of termination, and so on.  As a general rule, this means that unpaid internships are illegal.

The Ministry of Labour has stated six rules that apply to unpaid internships, all of which must be satisfied in order to avoid reprimand:

  1. The intern must receive training that is similar to that which would be provided in a vocational school;
  2. The training is for the benefit of the intern, i.e. through acquiring knowledge and skill;
  3. The employer derives little benefit, if any, from the activity of the intern;
  4. The intern’s training does not take away someone else’s job;
  5. The employer does not promise the intern a job at the end of the internship; and
  6. The employer has told the intern that they will not be paid for their time.

Points 2 and 3 are particularly important.  The focus is not simply on what the intern is doing, but also on what they are receiving from the internship.  Similarly, point 6 requires the employer to confirm in advance of the internship that there will be no compensation, rather than remain silent on the point, or confirm at a later stage.

Employers who do not strictly abide by these rules may find themselves liable for an intern’s salary, overtime, vacation pay, public holiday pay, notice of termination, and other employment standards entitlements.

An exception to this rule applies to students enrolled in a program approved by a university or college of applied arts and technology.  When in doubt, the employer should compensate the intern as if they were an employee.

 

Author: Marc Kitay, Whitten & Lublin

Accommodating Mental Illness in the Workplace

| August 23rd, 2016 | No Comments »

Accommodating mental illnessAccommodating mental illness is an extremely complex area for employers to navigate.  Unlike physical disabilities, the need for a mental health accommodation is often difficult to detect, and the employee’s medical prognosis can often be less predictable than a physical disability.   An employee may also be reluctant to ask for accommodation due to fear of stigma associated with mental illness.  However, employees are legally protected against discrimination or harassment on account of a disability, including a mental health disability.  In fact, employers have a legal duty to accommodate mental illness in the workplace.

When does Mental Illness Trigger a Duty to Accommodate?

Some mental health problems do not rise to the level of a recognized disability under human rights legislation.  For instance, a generalized complaint of ‘stress’ in the workplace, does not on its own amount to a disability.  There must be at least a diagnosis of some recognized mental disability, or clinically-significant symptoms, as identified from a health professional.  Examples of recognized mental health disabilities include generalized anxiety disorder, depression, alcohol addiction, or drug addiction. This is by no means an exhaustive list.

A diagnosis of a mental illness does not automatically trigger a duty to accommodate.  Many mental illnesses may be successfully managed or treated without the need for a workplace accommodation.  The duty to accommodate a mental illness is only triggered if there are work-related needs arising from the disability.

How is an Employer Required to Accommodate Mental Illness?

Accommodating mental illness can take a variety of different forms, such as a reduced work schedule, a leave of absence, or modified work duties.  Accommodations are meant to enable the employee to meaningfully participate and integrate into the workplace.  There is no single solution for accommodating mental illness.  Each case requires an individual assessment of the worker’s job requirements, their medical restrictions and needs.

Who gets to decide on the Accommodation?

The employer is not required to implement the employee’s preferred or ideal accommodation.  The obligation is only to implement a reasonable accommodation, considering the employer’s business operations and the employee’s medical restrictions as described by objective medical documentation. Even though the employee’s preferences are not decisive, accommodation is a two way street and should generally involve a dialogue with the employee, and the employer should take the employee’s input into consideration.

What if it is Not Feasible to Accommodate the Employee’s Disability?

The employer has a legal duty to accommodate to the point of “undue hardship”.  Accommodation often entails some inconvenience, cost or disruption to an employer, and these concerns are not necessarily an adequate justification against accommodation.   Speculative or anecdotal concerns about cost, health and safety or employee morale are not adequate excuses for refusing to accommodate mental illness. Concrete and objective evidence of undue hardship must be provided.   According to the Ontario Human Rights Commission, the cost standard should be a high one and in order to prove undue hardship, an employer should prove that costs are “so substantial that they would alter the essential nature of the enterprise or affect its viability.”

What are the Employee’s Responsibilities?

An employee seeking a mental health accommodation has a duty to cooperate in the accommodation process. This means that the employee should notify their employer of the disability and their accommodation needs, to the extent possible.   This includes sharing necessary medical information for the purposes of implementing an accommodation.

In many cases, the mental health disability itself my impact the employee’s decision-making, their ability to disclose, seek treatment or cooperate in the accommodation process.  When an employee is unable or refuses to disclose their accommodation needs, this makes implementing an accommodation particularly challenging for an employer.  In some instances, if the employee is able to reasonably communicate their accommodation needs but refuses to, the employer may not be required to accommodate the employee.

However, if an employer reasonably suspects that an employee may be suffering from mental illness and may need accommodation, the employer has a legal duty to inquire and assess the need for a possible workplace accommodation.   It is not a sufficient defence that the employer was unaware of the employee’s accommodation needs, when the employer ought reasonably to have known that the employee has a disability.

Can an Employer Ask for Objective Medical Information?

There is a fine balance between protecting an employee’s right to privacy of their medical information and the employer’s right to know the employee’s medical needs.  An employer is entitled to ask for objective medical documentation confirming the worker’s medical restrictions and the expected duration of the medical restrictions.  A one-liner handwritten note from a physician may not be sufficient to provide a reliable diagnosis of a mental illness, and the employer may be entitled to more specific information pertaining to the employee’s health condition.  However, the worker is not required to disclose detailed diagnosis or treatment information if that information is not necessary for the purposes of implementing an accommodation.

The employer is required to keep medical information confidential, and keep it on a needs to know basis for the purposes of handling an accommodation.  For instance, information pertaining to medical restrictions may need to be shared among certain human resources personnel and the employee’s supervisor(s), who may be required to implement the workplace accommodation.

 

Author: Jonquille Pak, Whitten & Lublin

Know Your Religious Rights in the Workplace

| July 6th, 2016 | No Comments »

religious rights in the workEmployees have a right to be free from discrimination in the workplace that is based on their religious rights.

Discrimination occurs when an employer makes a distinction that has the effect of excluding the employee, denying benefits, or imposing burdens on the employee on the grounds of his or her religion. “Religion” includes practices and beliefs that are part of the employee’s faith or creed.  It does not include personal moral, ethical or political views.

Some forms of religious discrimination are obvious and direct.  For example, an employer’s policy not to hire people from a particular religious group is clearly discriminatory.

There are also less obvious forms of discrimination.  For example, an employer’s policy to have employees work a particular day of the week may have a discriminatory effect on religious groups who require that day off as their holy day.

Many people think that, as long as discrimination is not intended, it does not exist in the workplace.  This is a misconception.  Discrimination may be found regardless of one’s intention to discriminate.  What is important is whether the conduct does, in fact, have a discriminatory effect on the employee.

Where discrimination exists, employers are required to make modifications in the workplace to accommodate the employee’s religious practices.  The exception to this rule is if accommodation would cause the employer undue hardship because of cost, or health and safety reasons.  Employers would be able to avoid accommodation if they can prove that their business cannot sustain the costs of accommodating an employee’s religious practices.  However, the employer must have made significant attempts to accommodate before such a claim can succeed.  There have been very few cases where employers have been able to meet this onerous burden.

If you believe you have been discriminated in the workplace because of your religion, or would like to learn more about your religious rights, contact one of our lawyers today.

Author: Ozlem Yucel, Whitten & Lublin

Bias in the Workplace

| June 24th, 2016 | No Comments »

Bias in the workplaceBias in the workplace is often problematic but it is not on its own illegal.

For example, it is not against the law for your boss to promote someone else or even fire you for the reason that she simply likes him better.  However, if the reason she prefers your co-worker over you relates to a protected human rights ground there is a good chance her actions are illegal.

Under human rights legislation employers cannot discriminate based on any of the following factors:

  • citizenship
  • race
  • place of origin
  • ethnic origin
  • colour
  • ancestry
  • disability
  • age
  • creed
  • sex / pregnancy
  • gender identity
  • gender expression
  • family status
  • marital status
  • sexual orientation
  • receipt of public assistance
  • record of offence

So, in the above scenario, if your boss liked your co-worker better and fired you because she feels he has “more energy and fresher ideas” and hasn’t missed as much time visiting the doctor that sort of bias is illegal as that preference is tied to your age and disability.

Importantly, discrimination does not need to involve a termination for it to be considered illegal.  For example, the following would also be illegal:

  • Preventing employees with accents from having client facing roles;
  • Punishing single parents that call in late because their child was unexpectedly ill;
  • Awarding Canadian citizens more lucrative business opportunities;
  • A practice of not hiring women that are likely to start a family;
  • Denying a transgendered person travel opportunities to areas the employer views as “less tolerant”;
  • Treating normal differences of opinion as insubordinate or confrontational when racialized persons are involved; and
  • Inviting only males to a company sponsored charity basketball tournament.

Employers are wise to have policies and procedures in place that help them avoid bias rooted in discrimination.  These policies should also encourage employees to report the discrimination to the employer and allow for a confidential investigation to take place.

If bias is occurring in your workplace and a protected ground is linked to that differential treatment consider consulting the Whitten and Lublin team for an expert assessment of your situation and a potential damages award.

 

Recognizing Signs of Discrimination in the Workplace

| March 8th, 2016 | No Comments »

discrimination in the workplaceThe most common form of discrimination in the workplace is not immediately obvious and you may not even realize that it’s happening to you. Identifying subtle forms of discrimination requires examining all of the circumstances to determine if you have been treated differently from your colleagues on the basis of such identifying factors as your age, gender, race, or disability.

Some indicators that there might be an issue in your workplace include: a lack of diversity; repeatedly being passed over for a promotion even though you have strong performance reviews; exclusion from training or career development opportunities; favouritism in assigning high profile or lucrative projects; receiving differential treatment (in comparison to your co-workers) with respect to discipline; suddenly receiving negative performance reviews after a long history of positive reviews; being asked to perform tasks with unreasonable deadlines (i.e. you are being set up for failure); exclusion from opportunities for social interaction; being held to a higher performance standard; and unwarranted criticism of soft skills such as your “communication style”.

If you suspect that you are being discriminated against, you should begin keeping a detailed diary of the above types of events and make note of any specific incidents, including dates, times and names of any potential witnesses. You should also consider consulting with a lawyer to discuss your particular situation and to obtain assistance in making a formal complaint where it is warranted.

Author: Priya Sarin, Partner at Whitten & Lublin

What You Need To Know About Medical Marijuana in the Workplace

| March 3rd, 2016 | No Comments »

What You Need To Know About Medical Marijuana in the WorkplaceMany people are prescribed marijuana to cope with health conditions, such as chronic pain, cancer, and sleeping disorders.  As the number of prescribed users increases, more employees may be requesting to use it at work.  Below is a list of things employers and employees need to know when navigating the issue of medical marijuana in the workplace.

What employers need to know:

  • Employers must make efforts to accommodate employees using prescription marijuana.  Ontario’s Human Rights Code (“Code”) requires employers to accommodate their employees’ disabilities up to the point of undue hardship.  Since the medical condition underlying an employee’s use of marijuana will likely fall within the definition of “disability” under the Code, an employer’s obligation to accommodate extends to the use of licensed marijuana in the workplace.  Accommodation must be explored before the employer seeks to fire the employee – even if the employee is not able to perform the job in the same way as before.
  • Employers must consider how the use of medicinal marijuana will impact the safety of the workplace.  Ontario’s Occupational Health and Safety Act requires employers to take every precaution reasonable in the circumstances to protect their workers.  Employers should therefore making inquiries of the employee to ensure that he or she can safely perform the job.  If the employee cannot carry out his or her job safely, the employer is not necessarily required to accommodate the use of medical marijuana at work.  This is especially so where the employee’s position involves the use of safety sensitive equipment.  Even in such circumstances, however, employers should explore alternative methods to accommodate the employee – such as providing a leave of absence to undergo medical marijuana treatment, or moving the employee to a position that would not pose safety risks to the workplace.

What employees need to know:

  • Employees have a right to have their disabilities, which may require the use of medical marijuana, accommodated in the workplace.  Accordingly, employees are encouraged to disclose their use of medical marijuana to their employers and ask that it be accommodated.  This will trigger the employer’s accommodation obligations and ensure that the protections of the Code are engaged.
  • Employees do not have a right to endanger the health and safety of the workplace.  So, when seeking accommodation, employees should provide their employers with medical documentation addressing their abilities to perform their jobs safely.  This will address any questions the employer may have about how the use of medical marijuana will impact the health and safety of its workers.
  • Employees are required to cooperate with their employers’ accommodation process.  This means that, if the employer proposes accommodation that is reasonable, the employee is required to accept the proposal.

If you would like to know more about the use of medical marijuana in the workplace, contact one of our lawyers today.

Author: Ozlem Yucel, Whitten & Lublin