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Posts tagged: Duty to Accommodate

Marijuana legalization – How Employers Should Navigate the Hazy Legal Landscape

By , January 11, 2018 10:45 am

The legalization of marijuana is expected to change Ontario’s employment law landscape in 2018. Legislation is expected to be implemented by July 2018.

It is not too early for employers to take proactive steps to address these changes.

Expected changes

Bill C-45, An Act respecting Cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts (the “Bill”) passed its second reading on November 27, 2017. Although the bill will legalize cannabis across Canada, the provinces and territories will generally determine how marijuana can be sold and used. The Bill allows the Minister of Labour to make regulations relating to smoking in the workplace.

What employers should do

Employers should review their current workplace policies and if a drug and alcohol policy does not exist, then the employer should consider  adding one before the new cannabis laws take effect. Among other things, the policy should recognise that recreational use of marijuana will be legalized under the Bill requires a different approach than medical use of marijuana which has been legal since 1999.

Although the legalization of marijuana is a big change, employers often forget that just because something is legal, does not mean it is permissible at the workplace. For example, alcohol is legal, however, employers are entitled to expect that their employees report to work sober and refrain from drinking alcohol at the workplace. Similarly, simply because recreational marijuana is being legalized does not mean that it is permissible to smoke marijuana at the workplace, or attend the workplace impaired. Employers can set out their expectations regarding impairment and safety at the workplace in workplace policies and procedures.

With respect to medical use of marijuana, employers need to be mindful of their obligations under Ontario’s Human Rights Code, namely, the duty to accommodate employees to the point of  undue hardship, which may include permitting an employee to work while under the influence of marijuana. The duty to accommodate does not eliminate an employer’s right to seek medical proof of prescription and medical documentation supporting the fact that the employee is required to ingest marijuana during working hours, nor does it eliminate an employer’s duty to ensure that the workplace is safe for all employees. Thus, employers must remain prepared to deal with marijuana-related accommodation requests on a case by case basis, taking into consideration the employee’s medical needs and their obligations under health and safety laws.

Lessons to Be Learned

The legalization of marijuana is changing the legal landscape. Due to these changes, we recommend that new policies be drafted to address the anticipated increase in  marijuana use, or that existing policies be amended to ensure they are consistent with the upcoming changes. The MacLeod Law Firm offers a fixed fee service to prepare new drug & alcohol policies, or to revise existing policies.

If you have any questions regarding the effect of the Bill on your workplace, or would like to learn more about the fixed fee service mentioned above, feel free to contact 647-985-9894.

Top 10 Employment Law Developments in 2017

By , December 4, 2017 1:43 pm

In 2017, the provincial legislature and Ontario judges continued to change Ontario’s employment laws. These changes resulted in higher payroll costs and a more regulated workplace. This blog briefly identifies 10 employment law developments from the past year.

1.Changes to the Employment Standards Act. Many changes were made to this law in November. Most of these changes take effect on January 1, 2018 which doesn’t give employers much time to change existing practices and policies. We offer a fixed fee service for employers who need help complying with these changes.

2.Ministry of Labour inspectors are visiting more Ontario workplaces. In the past, most inspections were the result of an employee complaint. Now the MOL is getting more proactive. For the last several years, the MOL has initiated strategic inspection blitzes. In 2017 the MOL announced it is hiring 175 additional ESA enforcement officers. This means your organization is much more likely to be inspected for compliance with Ontario’s employment laws including the many changes to the ESA that take effect January 1, 2018.

3. Accommodating employees with mental disabilities may be the fastest growing area of human rights law.  We recently devoted ⅓ of our employment law conference to this topic. It seems as if more and more employees are debilitated by depression and anxiety, and often an employee’s interaction with their supervisor triggers a mental disability. It is a complex area fraught with legal uncertainty. The duty to inquire about a person’s health when there are objective signs that the person may have a mental disability is one such issue.

4. Damages for employee terminations are going up. In the past, the sole issue in most wrongful dismissal cases was how much pay the employer owes the employee in lieu of the notice of termination that the employee should have received.  Now employees routinely seek several kinds of additional damages. A 2017 decision considered the termination of a 44-year-old female supervisor with 9 years’ service shortly after filing a sexual harassment complaint. The trial judge awarded her 10 months pay in lieu of reasonable notice, $ 60 000 in moral damages because of the way she was terminated, $ 25 000 for the way the employer handled her human rights complaint,  interest, and about $ 425 000 in legal fees. The Court of Appeal increased the damage award. In another case, a trial judge awarded a terminated employee, among other damages,  $ 100 000 for the intentional infliction of mental stress and the tort of harassment which I believe was recognized as a legal cause of action in the employment context for the first time.  

5. Termination clauses in employment contracts continue to be successfully attacked. We have written several blogs on this issue. Some judges are refusing to enforce termination clauses whereas others do, so there is considerable legal uncertainty in this area. I’m hoping the Supreme Court of Canada will provide some guidance in this area. In the meantime, we suggest that employment contracts be reviewed periodically – especially termination clauses.We provide this service for a fixed fee

6. Changes to AODA. The Employment Standards under the Accessibility for Ontarians with Disabilities Act came into effect for all employers in 2017. Did you know this law imposes 9 new obligations  on all employees, and 2 additional obligations on organizations with more than 50 employees? Also, did you know that organizations with more than 20 employees must file a report with the government by December 31, 2017? We offer a fixed fee service  for employers who need help complying with these obligations.

7. Sexual harassment. The Harvey Weinstein story shone a light on this issue – again. Changes to Ontario’s health and safety law in late 2016 amended the definition of “workplace harassment” to include sexual harassment. Employees now have the right to have complaints investigated by a trained person, and be told the outcome of the investigation and whether the alleged harasser was disciplined. We offer a fixed fee service for employers who have not complied with the new obligations imposed on employers including the obligation to implement a written workplace harassment investigation procedure.

8. Pregnancy and parental leave extended to 18 months. The federal government and provincial government have amended laws to make this happen. As written about in our blog, now employees can take 12 months EI benefits over an 18 month period. 

9. Drug testing. The federal government plans to regulate the sale of marijuana and it won’t be limited to people who need it for medical purposes. Recently some judges have found that drug testing is permitted in certain circumstances. I predict that more and more employers will be implementing drug and alcohol policies in 2018.

10. Employee bonuses. Is an employee entitled to the bonus they would have earned if they had received notice of termination? This often turns on how to  interpret the term “actively employed”. The Alberta Court of Appeal and Ontario Court of Appeal seem to be taking a different approach to this issue. Accordingly, it looks like the Supreme Court of Canada will have to decide this issue. In the meantime, we suggest that bonus clauses in employment contracts be updated.

For 30 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 directly at 416 317-9894 or at [email protected]

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. 

Everything You Need to Know About Ontario’s Employment Laws

By , September 26, 2017 9:35 am

Now that I have your attention, let me outline three things you need to know.

  1. The Ministry of Labour is devoting considerably more resources to enforcing the Employment Standards Act (the “ESA”) and your organization is more likely to be inspected.

Earlier this year, the government announced it was hiring an additional 175 enforcement officers. In addition, I expect amendments to the ESA will be passed this fall by way of Bill 148 which will impose several new obligations on employers.

If your organization is inspected you will be asked, among other things, if you have: posted certain required written policies; provided employees with required training & documentation; posted certain required information in a conspicuous place; and, complied with the new obligations imposed by Bill 148. If not, then the inspector will issue orders and you must comply with these orders. If not, your organization will be subject to significant fines.

Are you ready for an inspection?

  1. About 50% of the complaints that are filed with the Ontario Human Rights Tribunal deal with disability related discrimination. In many cases, an employee claims the employer has failed to accommodate a disability. So chances are you will receive a request for accommodation at some point in time.

Responding to a request for accommodation can be extremely complicated. Failing to do so can be extremely costly.

Did you know that there is a procedural duty to accommodate and a substantive duty to accommodate?

Did you know that in some cases you have a duty to ask an employee if they have a disability?

Did you know that in some cases you have a duty to offer another position to a disabled employee?

Do you know whether or not you can require an employee seeking accommodation to see a doctor of your choosing?

Did you know that some employers are required to prepare a written individual accommodation plan for a disabled employee?

Do you feel comfortable responding to a request for accommodation?

  1. A well drafted employment contract is, in my opinion, the best employment law investment you will ever make. For various reasons it needs to be reviewed periodically.

In an era when the government is taking away management rights, did you know that an employment contract can add to your management rights?

In an era when courts are refusing to enforce termination clauses (and other clauses)  in employment contracts, did you know that you need to periodically review your contract to make sure it doesn’t need to be amended?

When the government imposes new obligations on employers such as the ones that are contained in Bill 148, did you know that you need to review your employment contract to make sure it complies with the ESA? For example, if your contract states that an employee receives two weeks vacation each year then this clause will need to be changed if one section in Bill 148 becomes law this fall.

The MacLeod Law Firm is not in the seminar business. I believe these topics are so important, however, that I am holding a seminar in Toronto on October 16th and in Barrie On October 20th to discuss them.

For more information about the seminar, click here.

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 directly at 416 317-9894 or at [email protected]

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.

 

Contractors and the Duty to Accommodate

By , January 16, 2015 3:05 pm

Does an Employer have a Duty to Accommodate a Disabled Independent Contractor or a Disabled Dependent Contractor?

I recently fielded an interesting question. A human resources consultant was reviewing an employee manual for a client and asked whether the accommodation policy applied to a number of self-employed sales representatives who sold the employer’s services. The answer, of course, was: “It depends”. Here’s why:

Section 5 of the Ontario Human Rights Code (”Code”) states that every person has a right to equal treatment with respect to employment without discrimination because of disability. The needs of such a disabled person must be accommodated unless it results in undue hardship.

Section 5 of the Code is not limited to traditional employment relationships. In this regard, the Board of Inquiry in Payne v. Otsuka Pharmaceuticals Co Ltd. 2001 CanLII 26231 (ON HRT)stated: “Section 5(1) does not state that “no employer shall deny equal treatment to an employee”.  Indeed, there is no definition of “employment” in the Code.  Rather, section 5(1) involves discrimination “with respect to employment”.  “Equal treatment with respect to employment without discrimination” includes more than the traditional employer-employee relationship.

When interpreting the term “employment”, the Supreme Court of Canada in McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39 recently concluded that: “relying on a formalistic approach to a ‘master and servant’ relationship, resurrects an unduly restrictive traditional test for employment” and concluded that “the test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations?”

Lessons For Employers:

1. The duty to accommodate is not limited to the traditional employee/employer relationship.

2. An employer should carefully consider any accommodation request from a dependent contractor or an independent contractor.

3. An employer is not obliged to accommodate all independent contractors. It generally depends on the extent of the control the employer exercises over the contractor and how dependent the contractor is on the relationship.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“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.”

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