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’.

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

What You Can Do About A Hostile Work Environment

| October 14th, 2016 | No Comments »

Hostile Work EnvironmentA hostile work environment is distressing for employees and costly for employers. Fortunately, the law provides many ways to combat and prevent hostile work environments.

An employee who is subject to a hostile work environment because of his or her race, sex, age, disability, family status, or any other trait listed in Ontario’s Human Rights Code, may be able to file a claim at the Human Rights Tribunal of Ontario. The Tribunal hears claims related to hostile work environments that are rooted in employee’s protected traits.

An employee who is punished because they reported a hostile work environment to their employer can file a complaint to the Ministry of Labour under Ontario’s Occupational Health and Safety Act. Health and safety law also says that employers must protect employees from workplace harassment which can lead to a hostile work environment. Employees must also have a way to report allegations of harassment, and employers must investigate each employee’s allegation of harassment.

If a hostile work environment makes it intolerable for the employee to report to work, the employee may be able to quit their job and claim constructive dismissal. A constructive dismissal occurs where an employee has been treated so poorly that they are forced out of their job as if they had been fired. The employee quits, but then claims the payments that they would have been entitled to from the employer if the employee had been fired. A constructive dismissal can take place where an employer takes part in creating the hostile work environment, or where an employer does not prevent a hostile work environment.

Employees should not be too quick to quit and claim constructive dismissal, though. Constructive dismissal is very difficult to prove. Where an employee claims to have quit because of the employer’s actions, or lack of action, related to a hostile work environment, the employee must prove that it was intolerable for them to continue working, and would have been intolerable for any reasonable person in their position.

If your employer is simply upholding a reasonable workplace rule or policy, this will usually not be considered a hostile work environment. For example, if you are suspended because you were continuously late to work in violation of your employer’s lateness policy, your suspension would probably not be unlawful.

If you feel that you have been subject to a hostile work environment, you should speak with an employment lawyer before taking any action.

 

Author: Simone Ostrowski, Whitten & Lublin

Two Years of Severance Awarded to Dedicated Employee

| September 26th, 2016 | No Comments »

severanceDaniel Lublin was once again successful in obtaining one of the lengthiest severance awards for an employee in Ozorio v. Canadian Hearing Society.

The Court awarded our client 24 months payment of salary and benefits following her termination and entirely accepted our position that even with our client’s competence and experience she would have a difficult time obtaining a similar job.  The Court accepted our position that 30 years of service and a dismissal at age 60 ought to result in a significant severance payment and mentioned that our client was justified in declining a 1 year severance package which the employer ought to have known was insufficient.

With respect to our client’s dedicated service the Court concurred that her lengthy period of employment was likely to be a serious impediment in finding another job.  Specifically, having virtually no work experience outside of that obtained through her former employer placed our client at a competitive disadvantage in obtaining new employment.

Further, this was yet another Whitten & Lublin decision where the Court agreed with our view that an employee 60 years of age or older must be entitled to greater severance.  The Court cited our past cases of Hussain v. Suzuki Canada Ltd. and Leeming v. IBM Canada Ltd. to confirm that “age is an impediment” for older worker’s seeking new employment.  Simply, the job market is difficult for older workers competing with younger, more recently trained and likely less expensive talent.

If you have been dismissed consider consulting the experts at Whitten and Lublin for an informed assessment of your severance.

Author: Paul Macchione, 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.