Canadian Employment Law Today

September 26, 2018

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Have a question for our experts? Email Canadian HR Reporter, a Thomson Reuters business 2018 2 | September 26, 2018 with Leah Schatz Ask an Expert MLT AIKINS LLP, SASKATOON Ask an Expert 2 | Answer: A policy requiring all employees to disclose any prescription medications they are taking or face termination if they fail to do so, will be diffi cult to enforce unless it sets some specifi c parameters. A zero-tolerance drug and alcohol policy requiring disclosure of all prescriptions by all employees would likely be considered too broad. Again, the concern underlying these policies is that certain prescriptions can seriously impair a worker's ability to perform their duties safely and at an acceptable standard. us, an employee who fails to disclose a prescrip- tion that does not have any impairing ef- fects would most likely have a sound basis to dispute any termination fl owing from their failure to disclose. So too would an employ- ee who does not actually work in a safety- sensitive position, notwithstanding that the employee is working in a safety-sensitive industry. Where a position is indeed safety sensi- tive, a policy requiring employees to disclose medications or substances that they are tak- ing that could impair their ability to work safely would be reasonable provided that certain factors are taken into account. First, this type of zero-tolerance policy will need to be limited to medications and substances that could cause impairment. For example, a policy could capture over-the-counter med- ications, prescription medications, medical marijuana, and other substances that may impair a worker's ability to perform his du- ties adequately and safely. Just as the policy would need to be specifi c to medications and other substances that impair, it will also need to be specifi c to those employees who actually work in safety sen- sitive positions. It may be that the employer works in a safety sensitive industry (such as mining), but that does not mean every single employee in that workplace is actually work- ing in a safety sensitive position. As such, termination of an administrative assistant for failing to self-disclose would be diffi cult to justify compared with termination of an equipment operator who fails to self-dis- close, even if both employees are working in a safety sensitive industry. In the context of a discrimination com- plaint, the ultimate question is whether the employee was terminated for breaching the employer's policy for failing to self-disclose, or whether the employee was terminated be- cause of his disability. If an employee was fully capable of self- disclosing a substance use disorder, but only self-disclosed when he was discovered to be taking an impairing medication or sub- stance, an employer should be entitled to rely on the policy to justify termination provided that certain factors are taken into account. To reduce the risk of a zero-tolerance policy contravening human rights requirements, that policy should contemplate the duty to accommodate. However, the duty to accom- modate is not one that the employer must bear alone. It is therefore reasonable for an accommodation policy and/or drug and al- cohol policy to require an employee work- ing in a safety sensitive industry to disclose medications taken in the course of treatment that pose a risk of impairment. e same positive obligation applies to employees who may be suff ering from substance abuse disorders. Recently, the Supreme Court of Canada in Stewart v. Elk Valley Coal Corp. considered the termina- tion of an Alberta worker in a safety sensitive environment for failure to report a relapse as required by the employer's policy. e court held that since the worker was fully capable of reporting a relapse, his termination was as a result of his failure to abide by the self- disclosure policy rather than the worker's substance use disorder. However, the court did not completely shut the door on the issue and acknowledged that there may be situa- tions where the substance abuse disorder prevents an employee from self-disclosing. An employer will therefore want to ensure it has carefully investigated the matter before pulling the plug on the employment rela- tionship. Finally, as with the introduction of any zero-tolerance policy, employers will want to ensure that they educate their employees on that policy. Where the consequence for failing to comply is termination, a judge or adjudicator will want to be certain that the employee was fully aware of the expectation set out in the policy and his employment would be in jeopardy if he was to breach its terms. Employers are well advised to pro- vide training sessions to educate employees on the policy and to have them sign off on the policy. Given the severe nature of a zero- tolerance policy, it would also be benefi cial to have periodic refreshers on the policy. For more information see: • Stewart v. Elk Valley Coal Corp., 2015 CarswellAlta 1190 (Alta. C.A.). Fitness requirements and age discrimination Question: If an employer with certain physical requirements for a safety sensitive position is concerned about workers' abilities declining with age, how can it implement evaluations while avoiding age discrimination liability? Answer: An employee who is more ad- vanced in age may have a case in discrimi- nation if he experiences adverse eff ects as a result of being unable to meet physical fi t- ness requirements. Canadian human rights legislation generally prohibits discrimina- tion on the basis of age. An employer should therefore be prepared to consider potential measures to accommodate an employee who is unable to meet fi tness requirements. e duty to accommodate will only arise once grounds for accommodation are estab- lished. is puts the onus on the employee to demonstrate a prima facie case of discrimi- nation — proof he suff ers from a disability or another prohibited ground, adverse treat- ment, and a connection between the pro- hibited ground and the adverse treatment. Once established, the onus shifts to the em- ployer to demonstrate the alleged discrimi- natory requirements were reasonable, taken in good faith, and he could not be accommo- dated without undue hardship. An employer's physical fi tness require- ments will need to be specifi cally based on the actual requirements of the job. If the em- ployer's requirements are based on the ca- pabilities of the average 30-year-old, rather than the actual job requirements, an em- ployer may be off -side of human rights laws. e Saskatchewan Court of Appeal re- cently considered physical fi tness require- ments in SGEU v. Saskatchewan (Environ- ment). Although this case was heard in an arbitration, the takeaways from this case would apply both in and outside of the unionized workplace. SGEU involved a ARBITRARY STANDARDS on page 7 » Disclosure of medications in safety sensitive workplace Question: If an employer with a safety sensitive workplace requires employees to disclose prescription medications they are taking, can it be cause for dismissal if an employee doesn't comply? If an employee says he is abusing his medication after being discovered, does the employer have to accommodate?

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