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Employment Law 2019: Now More Cannabis & Employer Friendly

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Presented on January 17, 2019 to HRPA York Region.

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Employment Law 2019: Now More Cannabis & Employer Friendly

  1. 1. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Employment Law 2019: Now More Cannabis & Employer Friendly HRPA York Region January 17, 2019 Presented By: Stuart Rudner 1
  2. 2. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Disclaimer The user is authorized to use this presentation for the user’s own needs only, and is not authorized to make copies thereof for sale or for use by others. This presentation is not provided for the purpose of providing legal advice. Every situation is unique and involves specific legal issues. If you would like legal advice with respect to the topics discussed in this presentation, or any Employment Law matter, we would be pleased to assist you. 2
  3. 3. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Agenda Bill 148 47 1. Overview of Changes 2. What does it mean for employers and employees? Cannabis in the Workplace 3. Accommodating Cannabis in the Workplace 4. Four Types of Users 5. Responding to Accommodation Requests 6. Minimizing Liability a. Designing Policies and Procedures 7. Discipline and Dismissal What’s Ahead 3
  4. 4. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What’s old is New? Not discussing: ● Termination clauses ● Post-termination bonuses ● Bad faith damages ● Harassment and #metoo ● Investigations ● Hiring and Firing 4
  5. 5. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 148 47 “The Only Constant is Change” 5
  6. 6. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 The Making Ontario Open For Business Act, aka Bill 47 ● This time last year: trying to wrap our heads around Bill 148 ● First major overhaul of Employment Standards Act in 15+ years ● Minimum wage, PEL, scheduling, vacation... ● And then…. 6
  7. 7. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bill 47 Continued ● New government promised to overhaul many Liberal government’s policies, including Bill 148 ● October 23: introduced Making Ontario Open for Business Act ● Came into force November 21, 2018 7
  8. 8. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 So What Changed? ● Some parts of Bill 148 scrapped completely ● Other parts stayed intact, or with only minor changes ● Some of the Liberals’ previous changes untouched 8
  9. 9. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Minimum Wage 2018 ● Minimum wage increased to $14/hour on January 1, 2018 ● Was set to increase to $15/hour on January 1, 2019 2019 ● Minimum wage remains at $14 per hour ● Will adjust incrementally with inflation starting October 1, 2020 9
  10. 10. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Personal Emergency Leave 2018 ● Employees entitled to 10 personal emergency leave days per year ● First 2 must be paid as sick days ● Medical documentation cannot be required 2019 ● Employees now entitled to: ○ Three unpaid sick days ○ Three additional unpaid sick days for illness/emergencies relating to family members ○ Two unpaid bereavement days ● No prohibition on requiring medical documentation 10
  11. 11. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Scheduling 2018 ● Major changes to rules around scheduling: ○ Right of employee to request changes after 3 months of employment ○ Minimum 3 hours of pay for being on call ○ Right to refuse requests to work or be on call with less than 96 hours’ notice ○ Three hours of pay when a shift is cancelled <48 hours before scheduled start time ○ Record-keeping requirements associated with above changes 11
  12. 12. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Misclassification of Workers 2018 ● Reverse onus was put on employers ● Employers responsible for proving that ‘independent contractors’ were not actually employees ● Would be difficult to prove that employees were truly independent without certain evidence, i.e: proving that they had other clients without having access to their books 12
  13. 13. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Equal Pay for Equal Work 2018 ● Employees entitled to equal pay for equal work, regardless of full or part time status ● Increase protections for temporary help agency employees ● Employees were entitled to a review of their rate of pay ● Employers required to respond by either: ● Adjusting rate of pay, or ● Giving the employee a written response as to why they disagree with a rate adjustment 13
  14. 14. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Public Holiday Pay 2018 ● Change in calculation of public holiday pay ● Public holiday pay calculated based on wages earned by worker in pay period immediately preceeding public holiday pay, divided by number of days actually worked 14
  15. 15. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Penalties 2018 ● Significantly stiffer penalties for violating the ESA, including ○ Bumping maximum fines from ESA officers from $1,000 to $1,500 ○ Power to publish the information about contraventions of, including individual’s name, contravention, and amount of penalty 15
  16. 16. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What Stayed The Same? ● Minimum wage increases already in place ● “Three Hour Rule” still in place - Employees who regularly work 3+ hours but who are called in and end up working less are still entitled to be paid for 3 hours of work ● Three weeks’ vacation after 5 years of employment ● Domestic and sexual violence leave entitlements 16
  17. 17. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What Stayed The Same?(Cont’d) ● Minimum one week of pay for temporary workers where work was expected to last 3+ months ● Changes in Employment Insurance Act (pregnancy, parental, critical illness and family medical leave) ● Simplified rules for overtime pay for different types of work ● Rules re employees’ rights when defining single employer 17
  18. 18. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 So what does it all mean? For Employers ● Great news! ● Fewer burdens on employers, easier to be compliant ● BUT, don’t be too hasty and pull everything back too fast ● Be careful to avoid constructive dismissal claims! 18
  19. 19. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 So what does it all mean? For Employees ● Easy come, easy go ● Minimum wage not increasing ● No Personal Emergency Leave ● But some new protections remain 19
  20. 20. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Cannabis in the Workplace Addressing Legalization & Medicinal Use 20
  21. 21. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Cannabis Act ● Legalized recreational cannabis use across Canada as of October 17, 2018 ● Cannabis use for medical purposes has been legalized since 2001 So how does this impact employers? 21
  22. 22. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Discrimination “Adverse treatment of a person on the basis of a prohibited ground” Duty to Accommodate: The law expects that: 1.There will be a real effort to accommodate the request; and 2.There may be some hardship in accommodating the request 22
  23. 23. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Undue Hardship ●Limit on duty to accommodate: undue hardship ●High standard to meet ●Negative effects must outweigh benefit of accommodation ●Consider: ○Financial costs ○Health and safety risks ○Anything else that is relevant 23
  24. 24. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Occupational Health and Safety Act ● S.25: Duty on employers to “take every precaution reasonable in circumstances to protect a worker” ● Employees can’t show up to work impaired if it endangers others ● Mobo Gymnastics Coach v Gymnastics Club ○Zero tolerance policy versus prescribed use of medical cannabis 24
  25. 25. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Accommodating cannabis Use What employers imagine And yet, the sky has not fallen in the past 3 months 25
  26. 26. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 A truck driver comes to his employer with a prescription for cannabis to treat his bad back. Given his position, can the employer say that they can’t accommodate him? 26 NEVER refuse any employee request for accommodation out of hand
  27. 27. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Cannabis in the Workplace: 4 Types of Users 1.Casual/Recreational 2.Addicts 3.Prescription Users 4.Self-Medicators 27
  28. 28. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Casual/Recreational User ●Use cannabis casually or socially, like alcohol ●Will only become more common as laws and societal norms evolve Are employers required to accommodate the casual/recreational user? 28
  29. 29. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Addicts ●Cannabis use fuelled by addiction ●Beyond their control ●Addiction is recognized as a disability pursuant to human rights legislation Are employers required to accommodate employees who are addicted to cannabis? 29
  30. 30. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Prescription Users ●Individuals who have obtained a prescription from their doctor for cannabis use ●Use of cannabis is required to treat a medical condition Are employers required to accommodate a prescription user? 30
  31. 31. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Self-Medicators ●Use cannabis for medical purposes without formal prescription (e.g. for pain management) ●Between prescription users and casual/recreational users on “spectrum” Are employers required to accommodate the self-medicating employee? 31
  32. 32. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Responding to Accommodation Requests ●Never dismiss requests for accommodation out of hand ●Have consistent process for all requests ●Onus on employees to provide detailed information ●Employer can assess all options and determine if any are viable ○Employees are not entitled to dictate preferred form of accommodation ●Process is to be 2 (or 3) way dialogue ●Request (medical) documentation if applicable ○On ability to safely carry out duties 32
  33. 33. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 What Can You Ask For? Limitations on ability to carry out job functions Then: ● Assess need for accommodation ● Assess accommodation options Remember purpose: prevent barriers for people that can work 33
  34. 34. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Bottom Line ● Cannabis may be legal but not entitled to use or be impaired @ work ● Medical Cannabis: no different than any other medication? ○ Yes and no ● Duty to accommodate disability includes medical cannabis & addiction ○ Employee must show need for accommodation ○ Employer must then assess ● Competing duty to take every reasonable precaution to protect worker under OHS legislation 34
  35. 35. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 35 Minimizing Liability: Designing Policies and Procedures
  36. 36. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 CASE LAW Stewart v Elk Valley Coal Corp - Dismissal for Breach of Policy: ● Employer policy included positive duty to report addiction prior to any incident ○ Failure to disclose --> termination ● Employee involved in an accident & tested positive ● After testing, advised addicted to cocaine ● Employee dismissed 36
  37. 37. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 CASE LAW Stewart v. Elk Valley Coal Corp: ● Brought human rights complaint for discrimination HELD: NO DISCRIMINATION ● Dismissal was b/c of breach of policy, not disability 37
  38. 38. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Designing Policies ●No need for “cannabis policy” ●Have a strong Drug & Alcohol / Fit for Duty policy ●Consider nature of workplace, specific roles ●Consider legitimate use (ie client dinners) ●Consider actual issues ●Consider other prescription medication 38
  39. 39. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Designing Policies ●Establish rules ●Clarify how they will be enforced ○Detecting impairment - consider less intrusive means than testing ○Establish reporting procedure / voluntary disclosure ●Address accommodation ●Set out disciplinary consequences of breach 39
  40. 40. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Implementing Policies ●Take time to draft strong policy ●Publicize policies ●Train all employees: staff, managers, supervisors, executives ●Monitor behaviour ●Discipline offenders ●Update regularly ●Incorporate into employment contracts 40
  41. 41. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Discipline and Dismissal Investigate first 1. Need to prove misconduct 2. Then assess appropriate form of discipline ○ Contextual approach Possession/impairment at work will not automatically = dismissal ○ In some cases summary dismissal may be appropriate ○ Other options: verbal warning, written warning, suspension (with pay), last chance agreement 41
  42. 42. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Discipline and Dismissal ● If discipline is warranted, assess what is justified ● Consider all relevant factors, including ○Past discipline ○Human rights / accommodation ○Employee response 42
  43. 43. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 CASE LAW University of Windsor, Grievance Nos. 2015-06 (Eugene Enriquez) and 2015-07 (Darlene Lee) (2017): ● Fired for smoking cannabis while on duty ● Dismissal upheld ● Dishonesty when confronted was significant aggravating factor Undermined trust relationship ● More significant where position is safety sensitive or unsupervised 43
  44. 44. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 44 ● More legislative changes on the horizon - ie. Bill 66 ● Cannabis edibles and concentrates ● More employer-friendly legislation? ● Return of #metoo accused ● Termination clause cases So what’s ahead for 2019?
  45. 45. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Questions? 45 45
  46. 46. www.rudnerlaw.ca 416.864.8500 | 905.209.6999 Contact Us 416.864.8500 905.209.6999 info@rudnerlaw.ca 100 Allstate Parkway Suite 600 Markham, ON L3R 6H3 Presented By: Stuart Rudner 416.864.8501 stuart@rudnerlaw.ca Sign up for our Newsletter! 46

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