POT AT WORK - MAY BE LEGAL, BUT STILL NOT ALLOWED - EMPLOYERS' RIGHTS

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

Need an effective workplace policy for smoking, vaping and cannabis use?

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WORKPLACE HARASSMENT - WHAT YOU NEED TO KNOW

Ontario’s Occupational Health and Safety Act imposes important obligations on employers regarding workplace (sexual) harassment. They are designed to enforce proactive measures for all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.

Employers in Ontario must:

  • make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
  • incorporate the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.

  • establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
  • take care to ensure the Program complies with the law, including:

-     measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);

-     alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;

-     explain fully how incidents or complaints of workplace harassment will be investigated and addressed;

-     explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;

-     explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and

-     affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;

  • train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;  
  • tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
  • investigate all incidents and complaints of workplace harassment (fairly and completely);
  • retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
  • only utilize an investigator who is, and who will be perceived as, competent and impartial;
  • make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
  • be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external. 

Need an effective workplace harassment and violence policy? It's the law. 

I can help. Send me an e-mail - jason@wardlegal.ca 

 

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HARD LABOUR - REFERENCES BY FORMER EMPLOYERS - THEY CAN BE HONEST

HARD LABOUR – BY JASON WARD AND WARDS LAWYERSPC

REFERENCES BY FORMER EMPLOYERS – THEY CAN BE HONEST:

Employers may be wary of giving references for current or former employees, particularly if they were dismissed by the employer. There is no legal obligation for an employer to give an employment reference, unless there is an agreement to do so.

However, there are cases in Ontario whereby disgruntled, former employees have sued former employers for defamation, alleging the employers’ negative reference was defamatory and caused, or contributed to, their inability to secure alternative employer.

However, it is now clear that employers’ references, even if negative, are protected from liability for defamation, provided they are made “without malice”. This applies to both current and former employees.   

As a result, employers can now feel more assured if, in the circumstances, a less-than-positive reference is given. Many employers desire to be honest, but have been nervous about informing a potentially successor employer about a candidate’s character, work performance, lack of motivation or other sub-standard characteristics.

In defamation law, the truth shall set you free – this has always been the law in Ontario. Now, in addition to the truth defence, employer references are protected by the defence of “qualified privilege”, provided the employer does not act maliciously, but rather honestly, even if the reference may not be proved as the truth.

Generally, malice need not be proven directly, but can be inferred based on the specific words of the referee employer. It may also be established by evidence about the employer’s alternative, or even ulterior, motivation, if any. In addition, comments that are made without care or proper regard to their truth may also disqualify the “qualified privileged” defence.

So, while employers need to be smart and cautious, they can express honestly-held opinions about an employee and be protected by law, conditional on not acting maliciously.

To be vigilant against the risk of claims of malice when employment references are given, a few tips to employers:

  1. make your comments in a professional, respectful manner;
  2. use balanced, moderate language and tone;
  3. attempt to justify any negative comments by reference to a document, or based on the referee’s first-hand experience with the employee;
  4. take a balanced approach – mention any positive aspects of the employee, too, if possible; 
  5. take notes after the exercise to record, as precisely as possible, what specifically was communicated to the potential employer; and
  6. be mindful of any contextual issues or historical circumstances regarding the employee that could potentially be construed to suggest that the referee employer, or another person associated with the referee employer, may be motivated by revenge, a desire to punish the employer or otherwise act in a manner intended to cause harm to the employee.

Given this new development, employers should feel more comfortable with offering employment references, rather than avoiding them simply to avoid potential liability. If everyone did that, it may entirely make unavailable an important, useful part of the hiring and recruitment process, which serves no one’s interests.

Case:

Kanak v. Riggin, 2017 ONSC 2837 (CanLII), 2018 ONCA 345 (CanLII) and Tracey Kanack v. Darryl Riggin, 2019 CanLII 1628 (SCC) (leave to appeal denied).

Need an effective workplace policy for giving references for current or former employees?

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____________________________

Date of Blog: February 26, 2019

Thank you for reading this - Jason Ward of WARDS LAWYERSPC.

If you would like to read more, please visit www.wardlegal.ca/blogs.  

This WARDS LAWYERSPC publication is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We’re here to help - jason@wardlegal.ca and www.wardlegal.ca

©       WARDS LAWYERSPC (2019)

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