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Posts tagged: discrimination

Can my organization implement a drug testing policy at the workplace?

By , July 24, 2017 10:24 am

If you’ve been following the news over the last few months, you know that the Ontario Superior Court of Justice refused to allow the union’s injunction against the TTC’s random drug and alcohol testing policy. More recently, the Supreme Court of Canada upheld the termination of an employee who was terminated for violating his employer’s drug testing policy. These developments have led to us answering many questions from employers (and news publications) about whether they can also test their employees for drugs and alcohol.

Despite the TTC’s success at court, employers should proceed with caution when instituting drug and alcohol testing at the workplace. Firstly, the issue before the court was not whether such a policy was discriminatory. Secondly, the court refused the union’s injunction because of both the safety-sensitive industry and the wide area in which the TTC operates. Furthermore, the caselaw preceding the TTC decision shows that there is a high evidentiary burden an employer must satisfy to justify random drug testing its employees.

Because addictions to drugs or alcohol are considered “disabilities” under the Ontario Human Rights Code, drug and alcohol testing has human rights implications for people with addictions. For example, a human rights issue may arise where a positive test leads to automatic negative consequences for a person based on an addiction.

However, courts and tribunals recognise that it is a legitimate goal for employers to have a safe workplace, particularly in safety-sensitive industries. Therefore, there is caselaw that has recognised that a drug testing policy is justifiable if an employer can show that the policy is a bona fide (i.e. legitimate) requirement of the job. However, even if the policy is a legitimate requirement, employers should strive to minimise any potential discriminatory impact, and be prepared to accommodate employees with addictions who are negatively impacted by the policy.

Another requirement for a drug and alcohol testing policy to be found justifiable is that it must measure impairment, as opposed to drug or alcohol use. For example, while alcohol testing is able to measure a person’s impairment quite accurately, because drugs can remain in a person’s system for quite some time after their use, drug testing is less accurate at measuring impairment rather than drug use. For this reason, alcohol testing tends to be more permissible than drug testing. Similarly, testing after an accident or a “near-miss” is more justifiable than random testing.

Lessons to be Learned

As we get closer to marijuana being legal in Canada, questions around workplace safety and the permissibility of drug testing are bound to increase. We will continue to publish additional information as more relevant cases are released. In the meantime, if you are considering implementing a drug and alcohol testing policy at the workplace, you should consult an employment lawyer to find out whether such a policy would survive the scrutiny of a court or tribunal.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Ontario Court of Appeal Upholds Decision to Reinstate Disabled Employee with 10 Years Back Pay: Will Human Rights Litigation Ever Be the Same Again?

By , June 15, 2016 10:01 am

I predict a recent Ontario Court of Appeal (the “OCA”) decision will have a significant impact on human rights litigation. In particular, I suspect disabled employees will start asking employers to find or create alternative positions for them if they cannot perform their job duties because of a disability, and terminated employees will start asking adjudicators to reinstate them with full back pay.

Is an Employer Required to Find or Create an Alternative Position for a Disabled Employee?

In Hamilton-Wentworth District School Board and Sharon Fair the OCA stated that an adjudicator’s decision to reinstate an employee and order the employer to pay 10 years back pay was in keeping with an earlier Supreme Court of Canada decision. In the earlier case, the court articulated an employer’s duty, short of undue hardship, to arrange the employee’s workplace or duties to enable the employee to work, as follows:

Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties – or even authorize staff transfers – to ensure that the employee can do his or her work, it must do so to accommodate the employee. [Emphasis added.]

In the Hamilton-Wentworth case the disabled employee could not perform the duties of her position but she could perform the duties of another position. An adjudicator with the Ontario Human Rights Tribunal (the “Tribunal”) found that there would have been no need for the School Board to create a surplus position, as the financial resources existed for one position, or to displace an incumbent employee, as another position was vacant.

The OCA also stated: “…to fulfil its duty to accommodate an employee’s disability, an employer may be required in an appropriate case to place a disabled employee into a position for which he or she is qualified but not necessarily the most qualified.”

Should a Disabled Employee Be Reinstated with Full Back Pay?

One the one hand, the OCA stated that while rarely used in the human rights context, the remedy of reinstatement fell within the Tribunal’s remedial jurisdiction.

When refusing to overturn the adjudicator’s decision to order reinstatement, the OCA noted that Ms. Fair’s employment relationship with the School Board was not fractured and the passage of time had not materially affected her capabilities.

On the other hand, the OCA indicated that a comparison of an adjudicator’s jurisdiction under the Ontario Human Rights Code to an arbitrator’s jurisdiction in the labour relations context was not unreasonable or unusual and referred to an earlier Tribunal decision where an adjudicator, when examining the issue of reinstatement, noted:

While reinstatement orders are rarely requested or ordered in human rights cases, they are “normally” ordered in arbitral cases where a violation of a grievor’s rights has been found, unless there are “concerns that the employment relationship is no longer viable” A.U.P.E. v. Lethbridge Community College, [2004]….. The goal of human rights legislation, which is remedial in nature, is to put the applicant in the position that he or she would have been in had the discrimination not taken place. See Impact Interiors Inc. v. Ontario (Human Rights Commission) (1998)… Where viable, reinstatement is sometimes the only remedy that can give effect to this principle.

What are the Implications of this Decision?

Will this case translate into a shift in how adjudicators exercise their remedial jurisdiction where reinstatement is no longer a rare remedy and becomes as common a remedy as in the arbitration world? If so, I think employee lawyers will start commencing more proceedings at the Tribunal as opposed to the courts all other things being equal. With the prospect of reinstatement and/or large back pay awards there will be more pressure on employers to settle at the Tribunal for larger settlements. Only time however will tell.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Restaurant who refuses to serve customer with a service dog ordered to pay $ 2500 in general damages

By , May 31, 2016 9:59 am

Obligations to Train Employees On Human Rights Issues

We often represent employers and employees who have human rights issues. It is a rather complex area of the law, especially cases involving individuals with disabilities. For more blogs on the rights of disabled employees, click here.

An employer has obligations towards disabled employees under the Ontario Human Rights Code (the “Code”) and the Accessibility for Ontarians with Disabilities Act  (“AODA”) including mandatory training. For more information on an employer’s obligations under AODA, click here.

A recent case illustrates what can happen if an employer doesn’t properly train its employees on human rights issues.

The Facts of the Case

An autistic person, his mother and a service dog were refused service at a restaurant because they wanted the service dog to accompany them. The mother called the police who advised that they could not intervene. The police suggested they call the municipality but they were advised that the municipality could also not intervene and referred them to the Human Rights Legal Support Centre which said they did not have the resources to intervene in the immediate situation, but told them how to file an Application. After calling these places and getting no assistance, they left the restaurant and filed an application under the Code four days later.

The Law

The Human Rights Tribunal of Ontario (the “Tribunal”) found that autism spectrum disorder is a “disability” within the meaning of the Code

The Tribunal concluded the restaurant did not accommodate the son’s disability and in this regard quoted a section of a regulation under AODA, which states: “If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services shall ensure that the person is permitted to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.”

The responsibility for ensuring that servers are properly trained and aware of the obligations of a service provider rests with the employer and not the employee. Any liability for discrimination done by an employee in the course of the employee’s employment that results in a breach of the Code is that of the employer.

The Decision

The restaurant violated the autistic person’s right to be free from discrimination because of a disability by refusing to permit his service dog to enter the restaurant.

The restaurant was ordered to retain at its cost an expert in human rights to develop a human rights policy.

The restaurant was ordered to pay the son $2,500 as compensation for injury to dignity, feelings, and self-respect. This case can be contrasted to an earlier decision where a person with a service dog was denied access to a mall for about 5 minutes and was awarded $ 1000 in damages because a mall employee did not understand his right to bring the service dog into the mall. For more information on this case, click here.

Lessons to be Learned:

  1. Many employers have a positive obligation to train employees on human rights issues, particularly under AODA. Failure to train employees can result in an employer being ordered to pay for an employee’s unfamiliarity with the law.
  1. Employers who offer services to the public, like restaurants, are particularly susceptible to human rights claims. Many members of the disabled community are aware of their rights and will enforce them. In this case, the mother told the restaurant staff that her son had the right to bring a service dog into the restaurant before she and her son were denied service.
  1. Employers should participate in the application process under the Code. In this case, the restaurant did not send a representative to the hearing. It is possible that because the adjudicator did not hear both sides of the story the damage award was higher than it would have been otherwise.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Accommodating Disabled Employees: Can an Employee Demand to Work at a Different Workplace?

By , May 3, 2016 9:15 am

Accommodating Disabled Employees

I have written a number of blogs on the challenges associated with accommodating employees with mental disabilities. I have also blogged on the new obligations that were imposed on employers with 50 or more employees earlier this year with respect to disabled employees including the requirement to prepare a written accommodation plan.

Can a Disabled Employee Demand to Be Moved Away from a Co-Worker?

I have been involved in a number of cases where an employee has claimed that he could not work in the same work space as a co-worker for mental health reasons and asked to be moved to a different physical location.

The Case: The Emond v. Treasury Board

In a recent case, an adjudicator concluded that an employer failed to accommodate an employee on long-term disability who requested that she be permitted to work in a different work location than a co-worker for mental health reasons. As a result the adjudicator ordered the employer to move the employee to another of its nearby workplaces, and to compensate the employee for the difference between the amount she received while on long-term disability and her salary due to the employer’s failure to accommodate.

The Facts: The Devil Is In the Details

Did a disability exist? The adjudicator concluded that the employee suffered from emotional stress caused by a co-worker. Although the adjudicator recognized that “stress cannot automatically be associated with a disability or an incapacity,” she concluded that the employee’s medical condition did constitute a disability or an incapacity, thereby triggering the employer’s duty to accommodate.

Was there medical evidence supporting the accommodation request? In the opinions of her general physician and her psychologist, the employee would be capable of returning to work if she was permitted to work in a different workplace than the co-worker. Although the employer suggested that the employee should attempt to return to work on a different floor of the same workplace, both of the treating physicians disagreed. The employer refused to permit the employee to work in a different workplace or from her home. The adjudicator commented that the employer did not call any rebuttal medical evidence nor discredit the employee’s treating physicians.

Lessons to be Learned

  1. Do not refuse an employee request to move work locations for mental health reasons before carefully considering the reason for the request.
  1. Request medical reports in support of the employee’s request. If you are not satisfied with the documentation provided by the employee, send the employee to a physician or disability management consultant of your choosing if you have the right to do so.
  2. Prepare an individual accommodation plan under the Accessibility for Ontarians with Disabilities Act.
  3. Update your employment contract if your organization does not have the right to send a disabled employee to a doctor of the employer’s choosing.
  1. Maintain regular contact with the disabled employee and update the individual accommodation plan as needed.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca

 

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Disabled Employee Earning $ 22 000 Per Year Awarded $ 110 000 Damages

By , April 5, 2016 9:57 am

In my experience, many employees are now claiming more than one type of legal damages in wrongful dismissal cases. This is particularly the case when the employee is disabled.

A recent Ontario case is a good example.

The Facts

Ms. Strudwick worked for an employer that recruited individuals to participate in focus groups. She was paid $ 12.85 per hour and her duties involved data entry, and instructing recruiting staff.

In 2010, Ms. Strudwick became deaf. According to the trial judge: “…her employer’s attitude towards her and treatment of her became unconscionable. The plaintiff deposed she was constantly belittled, humiliated and isolated.” Among other things, the employer refused to accommodate her disability.

She was fired for just cause after more than 15 years’ service because at a Toastmaster’s meeting that was held at the workplace “she did not select a topic from those she had prepared or speak on any topic the requisite one or two minutes.”

Decision

The trial judge concluded she was not terminated for just cause, the employer refused to accommodate her disability, the termination caused Ms. Strudwick to suffer a medical disorder, and the employer treated Ms. Strudwick in a harsh and demeaning manner.

Damage Award

Wrongful Dismissal Damages

At the time she was terminated, Ms. Strudwick was 59 years old, had worked for almost 16 years, and held an administrative position. The judge ordered the employer to pay her 24 months’ pay in lieu of notice and about $ 6000 in lieu of lost benefits during that time.

Human Rights Damages

The judge awarded her $ 20 000 in general damages under the Ontario Human Rights Code.

Damages for Intentional Infliction of Mental Stress

The judge concluded that the employer’s conduct caused Ms. Strudwick to suffer an adjustment disorder with mixed anxiety and depressed mood which required psychological treatment and ordered the employer to pay almost $ 19 000 for the cost of this treatment.

Punitive damages

The judge ordered $ 15 000 in punitive damages because he did not think the other damage awards adequately accomplished the objectives of “retribution, deterrence and denunciation.”

Lessons to Be Learned

  1. Disabled employees have additional legal rights. Accordingly, employers should make themselves aware of these rights. For more information on the rights of disabled employees, click here.
  1. Any request for accommodation should be taken very seriously and failure to do so can result in significant legal damages. For information on the duty to accommodate, click here.
  2. Trying to force an employee to quit – especially a disabled employee – can result in additional legal damages.
  1. Judges have the discretion to order an employer to pay a sympathetic employee many different types of damages. For more information on different types of wrongful dismissal damages, click here.
  1. Always consult with an employment lawyer before terminating a disabled employee.

For more than 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing Ontario employers. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca

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