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Posts tagged: workplace safety

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.

New Law Requires Employers to Investigate Sexual Harassment Complaints. Has Your Organization Complied with This Law?

By , March 22, 2016 9:39 am

By September 8, 2016 – less than 6 months from now – Ontario employers must comply with Schedule 4 of the recently proclaimed Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2015, which imposes new requirements on how employers deal with sexual harassment complaints.

Schedule 4, among other things, requires an employer to prepare a written program to implement the organization’s workplace harassment policy which includes a process for investigating incidents or complaints of workplace harassment including sexual harassment complaints. Failure to do so can result in the Ministry of Labour ordering an expensive investigation of a complaint by a third party investigator at your expense.

In our experience, most employers have NOT prepared a written program to implement its workplace harassment policy. Has your organization done so?

The MacLeod Law Firm is offering a two-step, fixed fee service to help employers comply with these obligations.

Step 1 is for one of our lawyers to speak to you to determine whether or not you have complied with the following obligations:

  1. Included a definition of “workplace sexual harassment” in your written workplace harassment policy (for employers with 6 or more employees).
  1. In consultation with the joint health and safety committee, or health and safety representative (if applicable), amended the written program you have developed to implement your workplace harassment policy to include (i) a reporting mechanism for workplace harassment if the alleged harasser is the employer or a supervisor; (ii) a process for investigating incidents or complaints of workplace harassment (iii) an explanation of how information obtained in an investigation will be kept confidential; (iv) an explanation of how the person who makes an allegation and the alleged harasser will be informed of the results of the investigation; and (v) a commitment to review the program at least annually.
  1. Provided workers with information and instruction on the contents of the workplace harassment policy and program.

Step 2 is to provide you with a written report. This report tells you what you need to do to comply with these obligations and includes a written investigation procedure and suggestions on how to obtain low cost training.

If you are interested in finding out more information about our Sexual Violence and Harassment Action Plan Act compliance program, please call Doug MacLeod at 416-317-9894 or email him at doug@macleodlawfirm.ca.

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

OHSA Update: The Cost of Firing an Employee for Filing a Complaint with the Ministry of Labour Just Went Up

By , April 7, 2015 2:24 am

Each year in Ontario, over 10,000 workers file a claim with the Workplace Safety and Insurance Board (WSIB) because they’ve been injured on the job to the extent that they cannot return to work the day after the injury. So, employers be wary: workplace accidents are very common and you can incur large costs if they are not handled appropriately. As we will see below, these costs are on the rise.

An employer was recently ordered to pay a former employee 27 weeks pay plus $ 7500 in damages for causing her mental stress in connection with a workplace injury. To my knowledge, this is the first time an adjudicator has ordered an employer to pay damages for mental stress in connection with this kind of complaint.

The Facts

Brenda Bastien worked as a manager at the ProHairlines hair salon.

One day she unplugged her cell phone charger from an electrical outlet. She received a serious electrical shock, which caused electric burns. She provided her employer with a medical note, which stated she could not work because of the electrical burns. The employer did not report the accident to the Workplace Safety & Insurance Board. The employer then refused her request for a leave and ordered her to work reduced hours. Ms. Bastien eventually took a sick leave. While on this sick leave she filed a complaint with the Minister of Labour (the MOL). When the employer found out about the complaint it terminated Ms. Bastien after 3.5 years of employment. The employer refused to issue Ms. Bastien a Record of Employment.

The Complaint

Ms. Bastien filed a no cost complaint under section 50 of Occupational Health and Safety Act claiming she was terminated because she filed a complaint with the MOL. In this kind of complaint, the onus is on the employer to prove it did not violate section 50; that is, it must prove it did not fire the employee for filing the complaint. This is called a reverse onus clause.

The Hearing

The employer did not show up at the hearing so the only evidence before the decision maker was Ms. Bastien’s evidence. Not surprisingly the adjudicator concluded there was a violation of section 50.

The Cost of Non-Compliance

The employer was ordered to pay Ms. Bastien 27 weeks pay for lost wages. She received lost wages up to the date of the hearing, plus an additional 6 weeks pay.

The employer was also ordered to pay Ms. Bastien $ 7500 for causing her mental stress (or about 12 weeks pay).

Lessons to be learned

  1. Report it: When an employee is injured at work the employer should immediately report the accident to the Workplace Safety and Insurance Board.
  2. Attend it: If an employee files a complaint with the MOL and a hearing is scheduled then the employer should always attend it. For another example, of what can happen if you decide not to attend a hearing, click here.
  3. Keep the MOL out of it: In some cases, an employee can obtain more damages from the MOL than in the courts. In this case, an employee with 3.5 years service obtained almost 10 months pay.

For the past 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

 

Workplace accidents: Whose fault are they?

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By , November 27, 2012 9:30 am

Workplace accidents –  Five things to keep in mind when they occur

When a workplace injury occurs, the Ministry of Labour (MOL) decides whether to lay charges under the Occupational Health and Safety Act (OHSA). If convicted of a charge, an employer can be ordered to pay a fine of up to $ 500, 000 plus a 25% victim surcharge.

If you want to know your obligations under OHSA, sign up for our seminar or webinar which is taking place on December 5, 2012 from 9 a.m. to 10 a.m. by clicking here.

If a worker has been injured at work, here are five things to keep in mind:

  1. Generally, the MOL is called when there is a fatality or critical injury at the workplace. The MOL sends an inspector to the workplace. One of the inspector’s jobs is to decide whether to charge the employer, a supervisor or a worker under OHSA. If there has been an injury, he will almost certainly recommend that someone be charged.
  1.  Do not assume charges will be laid shortly after the accident. The MOL has one year to bring charges against an employer. It is not uncommon for the MOL to complete its investigation soon after the accident but decide not to charge an employer until just before this one year limitation period expires.
  1. An employer should provide the MOL inspector with any information that demonstrates the employer is safety conscious including documentation that shows the employer has provided safety information and instruction in connection with the job the worker was doing when he was injured.
  1. Think about hiring a lawyer to conduct an internal investigation.
  1. If convicted of a charge under OHSA, one of the factors a court will consider when determining a fine is specific and general deterrence. Fines of $ 50,000 to  $ 100,000 for workplace accidents that result in relatively minor injuries are not uncommon.

If you have any employment law questions, please call us at 1–888-640-1728 or email us at inquiry@macleodlawfirm.ca. You can follow us on twitter or subscribe to our employment law blog 

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