High Times in HR: Duty to Accommodate Marijuana, Gender Identity & Day Care

High Times in HR The Duty to

Accommodate in the Age of Marijuana,

Gender Identity, and Daycare

HRPA York RegionJanuary 17, 2017Presented by

Stuart E. Rudner

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Accommodating Medical Marijuana

What employers imagine

1. The Expanding Duty to Accommodate

2. Exceptions: Bona Fide Occupational Requirements and Undue Hardship

3. Responding to Accommodation Requests

4. Accommodation of Medical Marijuana

5. Accommodation of Gender Identity6. Accommodation of Childcare

Obligations7. Designing a Policy

Overview

The Expanding Duty to

Accommodate

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AccommodationSometimes people need individual arrangements so they can do their jobs, access services and buildings, and enjoy housing equally – this is called accommodation.

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Protected Grounds in Employment (Ontario)

Race Ancestry Place of origin Colour Ethnic origin Citizenship Creed Sex

Sexual orientation Gender identity Gender expression  Age Record of offences Marital status Family status Disability

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Protected Grounds: Expanding

New grounds added as time goes on Definitions expanding

– Family status includes childcare & eldercare obligations

– Disability includes medical marijuana

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What is Discrimination?“Adverse treatment of a person on the basis of a protected ground”

Direct & indirect– “No Jewish applicants” vs “Must be able to

work on Sundays” Leading case: British Columbia (Public Service

Employee Relations Commission) v. British Columbia Government and Service Employees’ Union, [1999] 3 S.C.R. [“Meiorin”]

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What should accommodation look like?

Modified or shuffled duties if necessary Modified hours Leave of absence Telecommuting/working from home Provision of assistive equipment

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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.

But BFOR is an exception, and undue hardship is too far.

Bottom Line:

Bona Fide Occupational

Requirements and Undue Hardship

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Bona Fide Occupational Requirement

Bona fide Occupational Requirement (BFOR): a skill or characteristic that is essential to a job, without which the job cannot be performed

If a barrier = a BFOR, the employer may not be required to accommodate – high standard

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Discrimination: The Meiorin Test

TEST: Unified Approach to adverse effect and direct discrimination

Plaintiff:Establish prima facie discriminatory conduct

Employer: establish BFOR1. Standard was rationally connected to job

performance2. Honest and good faith belief of its

necessity3. Reasonable and necessary for legitimate

purpose

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Discrimination: The Meiorin Test

If employer fails to establish these three criteria, conduct is deemed discriminatory

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Undue Hardship Duty to accommodate may not apply if it

causes undue hardship. High standard to meet Severe negative effects outweigh benefit

of accommodation

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Undue Hardship Consider:

1. Financial Costs2. Health and safety risks3. Anything else that is

relevant4. Breach of collective agreement is not

Human rights legislation trumps contract

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Undue HardshipNOT UNDUE HARDSHIP

Providing assisted support equipment at some extra cost

Business Inconvenience Customer/Staff

Complaints

UNDUE HARDSHIP Changing to different

product outside of expertise

Creating significant safety risk

Bordering on bankruptcy

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Cost as Undue Hardship? British Columbia (Superintendent of Motor

Vehicles) v. British Columbia (Council of Human Rights)(“Grismer”): High standard to establish cost as undue hardship – needs to be:– Quantifiable– Related to accommodation– So substantial it would alter essential

nature/viability of enterprise

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Undue Hardship & Frustration

Frustration of contract often enters equationThe Hydro-Quebec Test Employee had surgeries leading to 960 missed

days Given modified duties, then dismissed when

physician said indefinite leave requiredThus, the test for undue hardship is not total unfitness for work in the foreseeable future.  If the characteristics of an illness are such that the proper operation of the business is hampered excessively or if an employee with such an illness remains unable to work for the reasonably foreseeable future even though the employer has tried to accommodate him or her, the employer will have satisfied the test.  In these circumstances, the impact of the standard will be legitimate and the dismissal will be deemed to be non-discriminatory. (at para. 18) 

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Hydro-QuebecThe goal of accommodation is to

ensure that an employee who is able to work can do so. However, the

purpose of the duty to accommodate is not to completely alter the essence of the contract of employment, which is the employee's duty to perform work

in exchange for remuneration.

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Undue Hardship & Frustration

Asante v. Plastcoat Worker injured on the job Returned with modified duties Series of FAFs completed, followed by

another leave over the next 2 years Two years later, terminated due to

frustration Tribunal (para. 11): not breach to dismiss

employee absent for extended period of time due to disability with no prospect of return in near future

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Responding to Accommodation Requests

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Rules Employers cannot dismiss

requests for accommodation out of hand

For any accommodation request onus is on employees to

provide detailed information

employees are not entitled to dictate preferred form of accommodation

employer can assess all options and determine if any are viable.

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Accommodation Have process for assessment Process is to be 2 (or 3) way dialogue Request (medical) documentation if

applicable Work with employee to understand needs

and limitations Understand how ground intersects with job

duties

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What Can You Ask For?Limitations on ability to carry out job functionsThen: Assess need for accommodation Assess accommodation options

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Employee Role in Accommodation Process

Star Choice Television v. Tatulea: employees must participate in accommodation process– Leave of absence for neck pain – STD denied; employer offered six week

accommodation plan that employee refused to participate in

– Employer’s attempts to discuss went unanswered; employee terminated

– Arbitrator: employee did not live up to “his part of the bargain”

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Accommodation – Not Preference

Fretz v. BDO Canada LLP: Employee is not entitled to their preferred form of accommodation– Hearing impaired interviewee wanted

interpreter– Respondent provided keyboards and computer

screens to communicate– HRTO: This was NOT failure to accommodate

Respondent offered appropriate accommodation that employee refused

Dos and Don’ts

DO:

• Obtain information speaking directly to employee’s ability to do job

• Consider hazards • Request as much information as

possible to make decisions• Document thorough assessment

Dos and Don’ts

DON’T

• Request specific diagnosis• Request information irrelevant to job

duties• Request entire medical file

Accommodating Medical Marijuana

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Introducing Medical Marijuana

R v. Parker: 2000 ONCA case that called for legalisation

2001: Government introduces Marihuana Medical Access Regulations – need prescription + license2014: Marijuana for

Medical Purposes – only need prescription New legislation

announced for 2017 to decriminalize altogether

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Accommodating Medical Marijuana

What employers imagine

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Health Canada estimates that 450,000 Canadians will turn to using legal medical marijuana by 2024

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The LAW

Health Canada maintains a public database on authorized licensed producers of medical marijuana

Need: prescription from doctor to obtain, but no longer need licence from Health Canada

Federal government now only responsible for licensing producers, not possessors

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The LAW No DIN Numbers – not regular

prescription Patients can now grow their own

medical marijuana - Allard v. Canada (Federal Court, February 2016)

THE (CASE) LAW1. Wilson v. Transparent Glazing Systems

(BCHRT): employer obligation to ask if medication was affecting ability to perform job

2. Calgary (City) v Canadian Union of Public Employees (2015, Alberta): duty to accommodate off-hours use of medical marijuana even in a safety-sensitive position

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Burton v. Tugboat Annie’s Pub

Bartender dismissed after caught smoking marijuana

Chronic pain condition Tribunal held no link/nexus between

chronic pain and marijuana use – No evidence of diagnosis– No evidence for work-hours usage

So no breach of human rights

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Mobo Gymnastics Coach v. Gymnastics Club

Gymnastics coach Co-workers complained she was “high” Gave her detailed questionnaire on med

marijuana use Employment suspended until she no

longer needed med marijuana Human rights complaint – allowed to

proceed– Evidence of disability– Adverse impact due to method of treatment – No evidence of “safety sensitive” nature of

position

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Bottom Line No different than any

other prescription medication

Duty to accommodate disability includes medication

Employee must show need for accommodation

Employer must then assess

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Safety & Undue Hardship Safety as a significant factor 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 themselves or others

Remember Accommodating disability = accommodating treatment

Avoid stereotyping abilities of employees using marijuana

Educate yourself about use Prove that you have taken every step up

to point of undue hardship Documents all consideration /

assessments

Avoid a Human Rights Lawsuit

Design a “Marijuana Policy”

No need for specific policy – incorporate into “Drug and Alcohol” or similar policy

Ban use and impairment of drugs & alcohol while at work

Include exception for prescription medication

Require reporting of use of any medication that may cause impairment

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Effective, precise communication of employee’s entitlements and obligations

Specifically define “impairment” – Focus on “present impairment”, not “past use”

Address privacy of personal information Include reference to testing Collaborate with workplace health and

safety committee and union

Design a “Marijuana Policy”

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The Duty to Accommodate:Childcare Obligations

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Canada v. Johnstone, 2013 FC 113

Border Services Agent at Pearson Random scheduling practices prevented

her obtaining childcare for 2 young children

Evidence of inability to line up childcare Evidence Er did not make effort to

consider request Finding of discrimination

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The Test for Family Status Discrimination

According to Johnstone: Is child under claimant’s supervision? Childcare obligation = legal responsibility? Reasonable alternative solutions? More than trivial/substantial interference

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Different Test in Ontario? OHRT intervened in Misetich v. Value

Village Proving that caregiving obligations engage

"legal responsibility" imposes unduly onerous burden on applicants and is especially unworkable in context of eldercare

Only one test for discrimination

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Assessment of whether claimant made reasonable efforts to meet obligations (self-accommodate) does not belong at prima facie discrimination stage

HRTO agreed

Different Test in Ontario?

Accommodating Transgender Rights

and Needs

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Gender Identity: internal, deeply held sense of genderGender Expression: external manifestations of gender (clothing, name, behaviour, etc.)Transgender: umbrella term for those with gender expression/gender identity different from sex at birth. Note being transgender not dependent on physical appearance/medical procedures. Cross Dresser: form of gender expression Transition: process of changing from one gender expression/identity to another – medical sex change not necessary

Transgender Rights in Canada

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Cannot discriminate based on gender identity or gender expression – OHRC

BC and Federal governments making similar amendments

Applicable to all areas of employment JT v. Hockey Canada: HC required to

allow players to access locker room matching self-identified gender identity

Transgender Rights in Canada

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Transgender Rights in Canada:

Common Potential Issues Do NOT insist on treating employee as his or her birth gender

DO be understanding if employee discloses they are transitioning

DO NOT have exceptions in health benefit plans based on sex

DO include gender identity in non-discrimination/harassment policies

DO accept requests to change name/gender designation in company records

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Accommodating Transgender Rights

• Make hiring/promotion/employment practices equal

• Review policies for OHRC compliance• Address potential issues (ie washroom)• Review dress codes – inclusive enough? • Include appropriate leaves of absence/room

for medical appointments • Develop specific policies for transgender

needs

Designing a Policy

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Implementing Policies Have one Publicize it Incorporate into employment contracts Train all employees: staff, managers,

supervisors, executives Monitor behaviour Discipline offenders Update regularly

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Best Practices Have ONE process for responding to all

requests for accommodation Even those that may seem unconventional Require appropriate documentation Do your research Assess need for accommodation Assess options DOCUMENT EVERYTHING

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Stuart E. [email protected] Region: 289-317-1300

Toronto: 416-640-6402

www.rudnermacdonald.com

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