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Posts tagged: human rights in Ontario

Arbitrator Finds Undue Hardship for Employer to Hire an Employee with a Medical Cannabis Prescription in a Safety-Sensitive Workplace

By , December 4, 2018 11:14 am

With the recent legalization of recreational cannabis across Canada, employers are increasingly worried about its impact on safety-sensitive workplaces. Even though medical cannabis has been legal in Canada since 2001, similar concerns continue to exist about how to accommodate an employee where they hold a safety-sensitive position.

In a 2018 arbitration decision, Arbitrator Roil dealt with this very question of how to accommodate an employee’s medical cannabis use in the construction industry.

International Brotherhood Lower Churchill Transmission Construction Employers’ Assn. Inc. and IBEW, Local 1620 (Tizzard)

Facts

The Lower Churchill Project involves the development of a hydroelectric facility and related infrastructure in order to carry power to consumers. Numerous contractors were responsible for construction of the transmission lines in what is known as “the Project.” One major contractor was Valard Construction LP ( “Valard”).

In 2016, Mr. Tizzard applied for a labourer job and was accepted for employment, subject to a satisfactory drug and alcohol test – a normal requirement for work at the Project. Mr. Tizzard has a prescription for the use of cannabis for the management of pain arising from osteoarthritis and Crohn’s disease. He is permitted to consume up to 1.5 grams of cannabis with a THC level of 22%, which he consumes by vaporization each evening. Mr. Tizzard informed the Union about his cannabis authorization which requested that his doctor fill out a questionnaire. When Mr. Tizzard’s doctor had finally done so, the original position Mr. Tizzard had applied for had been cancelled.

In February 2017, Mr. Tizzard applied for the position of Assembler, but he was turned down for this position and it was requested by Valard that he see a Substance Abuse Specialist. Despite clarifying that he had a prescription and not an addiction, Mr. Tizzard became frustrated as he needed employment and stopped taking his medical cannabis for 5 weeks so that the THC would clear from his body. He was hired by another subcontractor to The Project as a general labourer. However, at the last minute, Mr. Tizzard received a call in which he was told not to report for work. According to Mr. Tizzard, he had been “red-flagged” due to his medical cannabis use and nobody was allowed to hire him to work on The Project.

The Law

Ontario’s Human Rights Code is not like other laws – it is considered “quasi-constitutional,” meaning that it prevails over all other provincial legislation. It is to be interpreted broadly, and its protections apply even in the pre-hiring stage. For example, a job applicant’s needs related to Code grounds must be accommodated for any part of the hiring process. The hiring process must be fair and employers cannot screen out applicants based on any protected grounds.

During the employment relationship, an employer has the duty to accommodate an employee’s disability up to the point of undue hardship. Courts have held that assumption of some risk in the workplace is acceptable within the accommodation process. Therefore, in accommodating a person with a disability, it is not required that all risk be eliminated from that person’s work.

Further, each person with a disability must be considered, assessed, and accommodated individually. Such individualized accommodation has been referred to as the essence of accommodating people with disabilities. Any inquiry into accommodating a worker with a disability in a unionized environment entails a search of the various possible work options available for that worker. The employer has the primary obligation to consider accommodation but the union also plays a role.

Arbitrator’s Reasoning

In deciding whether Valard had failed to accommodate Mr. Tizzard’s disability by not providing him with employment, the arbitrator first assessed the labour positions of Utility Worker and Assembler, concluding that both were safety-sensitive and inherently hazardous for all those who attend the various job sites for The Project.

Since all positions were safety-sensitive, the arbitrator had to decide whether Mr. Tizzard could work in one of these safety-sensitive positions while consuming medical cannabis.

The Arbitrator reviewed medical and pharmacological evidence including medical literature and guiding documents from Health Canada, the College of Family Physicians of Canada, and the College of Physicians and Surgeons of Newfoundland and Labrador. He also reviewed a report by the Task Force set up to advise the Federal Government on cannabis legalization for the most recent independent information available about the measurement of impairment from the use of cannabinoids. Based on his review of these documents, and evidence from specialized witnesses, the Arbitrator reached the following conclusions:

  1. The regular use of medically-authorized cannabis products can cause impairment of a worker in a workplace environment. The length of cognitive impairment can exceed simply the passage of 4 hours after ingestion. Impairment can sometimes exist for up to 24 hours after use.
  2. Persons consuming medical cannabis in the evening may sincerely believe that they are not impaired in their subsequent daily functioning; they can, however, experience residual impairment beyond the shortest suggested time limits. The lack of awareness or real insight into one’s functional impairment can be a consequence of cannabis use. In that context, a person may not experience ‘euphoria’ (as mentioned in the Health Canada Guidance), yet still not function, respond or react normally while impaired by cannabis use.
  3. A general practicing physician is not in a position to adequately determine, simply grounded on visual inspection of the patient in a clinic and a basic understanding of patient’s work, the daily safety issues in a hazardous workplace. Specialized training in understanding workplace hazards is necessary to fully understand the interaction between cannabis impairment and appropriate work restrictions in a given fact situation.
  4. There currently are no readily available testing resources within the Province of Newfoundland and Labrador to allow an employer to adequately and accurately measure impairment arising from cannabis use on a daily or other regular basis.

Decision

The Arbitrator concluded that Mr. Tizzard’s impairment posed a safety hazard as there is currently no effective or practical way to measure his impairment from evening cannabis use. Further, he found that the safety hazard introduced by residual impairment could not be ameliorated by monitoring or remedial processes. Therefore, the Arbitrator erred on the side of caution and held that hiring Mr. Tizzard would amount to undue hardship for Valard.

Takeaway

This decision may provide some clarity as to the laws surrounding accommodating employees who use medical marijuana in safety-sensitive workplaces. Although the threshold of  undue hardship is a tough one to meet, in safety-sensitive workplaces where alternative positions are not available or residual effects of impairment cannot be ameliorated, other decision makers may also err on the side of caution as was done here.

For more information on whether accommodating an employee with a disability may amount to undue hardship in your workplace, contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

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.

The Duty to Accommodate – How far is too far?

By , February 29, 2016 11:02 am

We get calls from employer clients who are exasperated because a disabled employee has made what the employer considers to be an unreasonable request. However, it is important as an employer that you seriously consider all requests for accommodation because if you don’t you could end up in legal hot water. This blog is about an employee who requested her employer accommodate her by moving her to another building because a co-worker caused her stress.

Duty to Accommodate

An employer has a duty to accommodate a disabled employee unless the employee is incapable of performing the essential job duties or requirements. To prove that the employee is incapable, the employer must show that the needs of the employee cannot be accommodated without undue hardship.

Emond v. Treasury Board (Parole Board of Canada)

Ms. Edmond was a long-service employee who had always performed her duties satisfactorily. In or about Fall 2009, she began to have issues with a colleague Mr. X. Her complaints included that he: was loud, swore, broke wind, made strange noises, walked barefoot around the office and washed his feet with vinegar at his desk. On one occassion, he made a threatening comment after she banged on the wall they shared because he was being noisy. His actions made her nervous. She raised her concerns with managers, but never filed a formal harassment complaint. The employer seemed to believe that this was a personality conflict between co-workers.

In August 2011, after Mr. X filed a harassment complaint against her, the employee commenced sick leave. The employee’s family doctor concluded that she was afraid of Mr. X and suffering from “emotional stress” which impaired her concentration. Eventually, her doctor stated that she could return to work if she was allowed to work at another building away from Mr. X. The Employer offered to move her to another floor, but that was not enough according to the employee and her doctor as she could still run into Mr. X.

The adjudicator concluded that employer failed to accommodate the employee. She ordered that the employer move the employee to another building located in Ottawa and compensate the employee for the difference between what she received while on long-term disability and her salary.

Lessons for Employers:

  1. Don’t be hasty in dismissing an employee’s complaint which appears on the surface as a personality conflict with another colleague or manager.
  2. Just because the requested accommodation is inconvenient doesn’t mean the company doesn’t have to do it. In her decision, the adjudicator specifically mentioned that the employer did not satisfy her that the employee needed to work out of the building to which she was assigned.
  3. Suggest, or require (if permissible), that the employee to obtain a second opinion from a third party medical professional if his/her accommodation request seems unreasonable
    In her decision, the adjudicator relied heavily on the employee’s family doctor’s recommendation that she needed to work out of a different building. The employee’s diagnosis and this recommendation was not contradicted by any second opinion, which was noted by the adjudicator.

If you have any questions about your obligations to accommodate employees with disabilities, one of our lawyers would be happy to speak with you. Please call 647-204-8107 or email [email protected]

Some of Ontario’s Mandatory Training Requirements

By , October 6, 2015 10:02 am

In recent years, the Ontario government has imposed several new mandatory training requirements on employers carrying on business in Ontario.

As an employment lawyer who advises employers of all sizes I see that employers are finding it increasingly difficult to keep up to date on these obligations.

This blog summarizes some of the mandatory training requirements that are set out in the Occupational Health & Safety Act, and the Accessibility for Ontarians with Disabilities Act.

Occupational Health & Safety Act

As of July 1, 2014, most employers have been required to provide mandatory health and safety awareness training to employees.

An employer must appoint a “competent” supervisor who is, among other things, familiar with the Occupational Health and Safety Act and the regulations that apply to the work.

For most employers with 20 or more employees, certain members of a joint health & safety committee must be “certified” and only certain training companies like FAST Rescue are qualified to provide this training.

Employers are generally required to provide training to a worker exposed or likely to be exposed to a hazardous material or to a hazardous physical agent.

A new regulation requires employers to ensure that workers on construction projects successfully complete a working at heights training program if they may use specified methods of fall protection.

Accessibility for Ontarians With Disabilities Act

Pursuant to the Customer Service Regulation, employers with 20 or more employees are required to provide training about the provision of its goods or services to persons with disabilities.

Pursuant to the Integrated Accessibility Standards, employers with 50 or more employees must receive training on the Human Rights Code as it pertains to persons with disabilities and this Standard.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has advised employers on Ontario’s mandatory training requirements. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The Cost Of Terminating an Employee Who Has Recently Returned to Work Following a Pregnancy Leave

By , January 27, 2015 10:09 am

Pregnant employees have special rights under the Employment Standards Act and the Human Rights Code. And most judges are sympathetic to the problems that women face when they return to work following a pregnancy leave.

A recent case is a good example of what not to do when an employee returns to work following a pregnancy leave.

 

The Facts

Lee Partridge worked in a dental practice as an office manager working 9 to 5 four days a week. Originally she had been hired as a dental hygienist. Shortly before returning to work following a pregnancy leave the dentist told her that he would be scheduling her as a dental hygienist with fewer and different hours of work. After reminding the dentist of her legal obligations to reinstate her to the office manager position the dentist informed Ms. Partridge that she planned to schedule her to work after 5 pm as a hygienist which he knew would create child care problems for the returning employee. About a week after returning to work the dentist terminated Ms. Partridge’s employment after she refused to meet with the dentist unless a witness was present.

 

The Legal issues

1. Wrongful Dismissal

The dentist claimed she had just cause to terminate Ms. Partridge’s employment. The trial judge disagreed and concluded the employee was entitled to receive reasonable notice of termination. At the time of her termination, Ms. Partridge was 39 years old and had been employed for almost 7 years.  The trial judge awarded Ms. Partridge 12 months pay in lieu of reasonable notice. This is a longer notice period than one would expect in these circumstances. It is also surprising that a dental hygienist was unable to secure alternative employment for more than one year. In most labour markets, dental hygienists are in high demand however the judge concluded the employee’s job search was adequate.

2. Violation of the Employment Standards Act

The judge concluded there was a violation of Section 53 of the Employment Standards Act however the judge did not award any damages for this misconduct. Instead of filing a court action, Ms. Partridge could have filed a complaint under the ESA without the assistance of a lawyer and sought reinstatement, lost wages and damages for mental anguish but she elected to commence an action in the court instead.

3. Violation of the Human Rights Code

The judge concluded the dentist discriminated on the basis of family status because she scheduled Ms. Partridge to work until 6 pm on some days and awarded Ms. Partridge $ 20 000 in general damages for a violation of the Human Rights Code. This finding is a little surprising because Ms. Partridge’s kids did not have special needs, her husband was self-employed and he, extended family and neighbours could care for the children between 5 pm and 6 pm. In addition she could use paid childcare available during this time. The facts of this case were much different than the recent Federal Court of Appeal case the judge relied upon.

 

Lessons to Be Learned:

1. At the end of a pregnancy leave, an employee has the right to return to the position most recently held by the employee if it still exists or to a comparable position, if it does not. If the position still exists then an employer should generally obtain the employee’s agreement before assigning her to a different position.

2. Terminating an employee shortly after returning from a pregnancy is generally a very bad idea. The employee can commence no cost legal proceedings under the Employment Standards Act and the Ontario Human Rights Code. In addition, trial judges are generally sympathetic to new mothers and will often exercise their discretion to help these employees. When determining “reasonable” notice a trial judge has broad discretion. In this case, I suspect most employment lawyers would have advised Ms. Partridge that she was entitled to up to 7 months notice of termination particularly given her age and the availability of comparable employment given her education and experience. This trial judge awarded 12 months.

3. This is the second time – to my knowledge – that a judge has awarded general damages for a violation of the Human Rights Code in a wrongful dismissal case. The judge concluded the employer discriminated on the basis of family status. In both cases the amount was $ 20 000. In neither case did the judge give detailed reasons explaining how the judge arrived at this amount. In both cases, the court did not refer to or apply the case law that the Ontario Human Rights Tribunal has developed over the years when deciding on an appropriate damage award. I do not think most adjudicators would have found that there was a violation of the Code on the basis of family status.

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.”

 

 

Ignoring the Elephant in the Room: The Cost of Not Asking an Employee with a Disability if She Needs Accommodation

By , October 28, 2014 11:38 am

The Question

One of the questions employers ask me is, “If I think someone has a disability, do I have to ask whether the person needs accommodation?”

 

When the Question Can Arise

This question can arise when an employer believes an employee has an alcohol or substance abuse addiction.

It can also arise when an employer believes an employee has a mental illness.

 

The Law

Under the Ontario Human Rights Code an employer is required to accommodate a disabled employee unless his or her needs cannot be accommodated without undue hardship on the employer considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

However, the Code does not explicitly require an employer to ask a disabled employee whether he or she requires accommodation.

 

The Ontario Human Rights Commission “Policy on preventing discrimination based on mental health disabilities and addictions.”

On the flip side, Section 13.6.1 of the Policy called “Duty to inquire about accommodation needs” states in part: “Accommodation providers must attempt to help a person who is clearly unwell or perceived to have a mental health disability or addiction by inquiring further to see if the person has needs related to a disability and offering assistance and accommodation.”

 

Cases decided under the Ontario Human Rights Code

A number of adjudicators appointed under the Ontario Human Rights Code have also concluded that in certain circumstances an employer does have a common law duty to ask the employee whether he or she needs accommodation.  For example, in a case decided earlier this year, an adjudicator wrote:

I conclude that the (employer) initially failed in its procedural duty to accommodate in that, despite knowledge of the nature of the applicant’s disabilities, …, the applicant’s supervisors did not initiate any inquiry as to whether the applicant needed accommodation.” Sears v. Honda of Canada Mfg., 2014 HRTO 45 (CanLII),  In this case, the adjudicator issued a number of orders against the employer including an order to pay a former employee $35,000 in general damages to compensate for injury to his dignity, feelings and self-respect.

 

Lessons to Be Learned:

An employer cannot turn a blind eye to an employee who shows objective signs of being disabled. This might be an employee who is suffering from panic attacks at work.

What constitutes knowledge of a disability will be decided on a case by case basis.

Supervisors should take on an active role here. They need to know that the employer is obliged to ask a disabled employee whether any accommodation is needed and accordingly should receive training on this issue. Training should include examples of what to look for in terms of identifying a disability. Supervisors should also be instructed to notify the person who is responsible for accommodating disabled employees at the workplace when an employee shows objective signs of being disabled.

For those interested in finding out more information about managing disabled employees, I am co-chairing a program on Managing Disabled Employees on November 3, 2014. To register for this seminar click here.

 

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on human rights issues. If you have any questions concerning your obligations towards disabled employees or employer obligations in general, you can contact him at 416 317-9894 or at [email protected]

 

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