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Posts tagged: accommodation

Cannabis Legalization: Behind the Smoke and Mirrors

By , October 17, 2018 9:44 am

Whether you’ve been looking forward to this day – October 17, 2018 – or whether you’ve been dreading it, the legalization of recreational cannabis in Canada is officially here.

Although employers have had over a year and a half to prepare for legalization, a recent Ipsos poll found that managers and employees are not on the same page when it comes to their respective expectations concerning the use of recreational cannabis in the workplace.

Only 18% of non-management staff say that management has communicated clear expectations on the use of recreational cannabis in the workplace. This number is at odds with manager expectations: 55% of managers believe employees clearly understand management’s expectations.

Leaving employees to self-educate on the changes that follow legalization is not a good idea. Only 16% of those non-management employees polled said they are “very familiar” with the changes and with where they are allowed to consume cannabis. Most others are only somewhat familiar (52%) or not very familiar (24%). Finally, 17% of working Canadians believe it is possible to use recreational cannabis before going to work or during work hours (including lunch and coffee breaks), while another 6% definitely believe it is permissible to do so after October 17, 2018.

Given the disconnect between managers and employees’ expectations, it is important to communicate these expectations through workplace policies. If you already have a policy, here are a few other questions to consider.

  • Does your current policy simply refer to illegal drugs? With the legalization of cannabis, such language will not cover recreational cannabis. Also, impairment can come from various sources, including prescribed, legal medication.
  • Does your current policy include a distinction between recreational and medical cannabis?
  • Does your current policy define the workplace? What if an employee travels for work, or attends many after-hour functions? Does your current policy state under which circumstances cannabis consumption is not permitted as an employee?

There is no one size fits all drug policy. It should be tailored to the needs of your business. We suggest that all employers develop a policy, and then communicate it to employees and provide any necessary training. We are hosting seminars in Toronto and Barrie next week and one of the topics we will be covering is some of the components that should be included in a drug policy. Click here for more information on this seminar, or call Judy Lam at 647-204-8107

For over 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.

 

Common Employment Law Issues

By , February 23, 2016 8:38 am

I speak with human resources professionals every day about various employment law issues. This blog deals with five of the most common issues that arise in my practice.

Termination Pay

In many organizations, labour costs often account for more than 50% of the cost of doing business. Reducing head count is one way to reduce labour costs. I am often asked how to minimize the termination costs associated with an employee termination. There are many factors that an employment lawyer can take into account. In my experience, the more lead time you provide your employment lawyer about a potential termination the better. I have written about employee termination in earlier blogs.

Employment Contracts

Not all employment contracts are created equal. If you are using an employment contract you obtained on the internet then you likely are getting what you paid for. I strongly recommend that every new hire be required to sign a properly drafted employment contract with an enforceable termination clause. It is an extremely powerful management tool and can significantly reduce your termination costs. Given changes in statute law and the common law, I suggest that you review your employment contract every year or two. Did you know that Ontario courts have recently concluded that certain termination clauses are not enforceable and in wrongful dismissal actions employees are routinely claiming their termination clause is not enforceable? I have written about employment contracts in earlier blogs.

Accommodating Disabled Employees

Over the last 2 or 3 years, I would say this is the fastest growing area in employment law – particularly employees with mental disabilities. On January 1, 2016 the Employment Standards under the Accessibility for Ontarians with Disabilities Act took effect. Among other things, it requires certain employers to prepare individual accommodation plans for an employee who seeks accommodation. In addition, I am seeing many human rights complaints alleging discrimination on the basis of mental disability. .I have written about disabled employees in earlier blogs.

An Employer’s Obligations under the Employment Standards Act Vis a Vis the Common Law

Many small employers think the Employment Standards Act (ESA) sets out its only obligations toward employees. For example, an employer is required to provide a minimum amount of notice of termination to employees under the ESA but unless an employee has signed a contract with an enforceable termination clause then the employee is generally entitled to “reasonable” notice of termination which is almost always more than the ESA minimums. Similarly, an employer is entitled to temporarily lay off an employee under the ESA but unless the employee has agreed that an employer has the right to temporarily lay her off in her employment contract then this kind of layoff is generally an employee termination which requires notice of termination. I have written about the ESA in earlier blogs.

Harassment Complaints

There are two kinds of harassment complaints. One is harassment under the Ontario Human Rights Code, such as sexual harassment. The other is workplace harassment under the Occupational Health & Safety Act. There are different obligations and legal exposure for each type of complaint. Accordingly, I suggest a different response to each kind of complaint. I do however recommend that an employer take all “harassment” complaints seriously and investigate them promptly. I have written about harassment complaints in earlier blogs.

 

For more than 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 [email protected]

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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