Presented on January 17, 2019 to HRPA York Region.

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
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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.
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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
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4. www.rudnerlaw.ca
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What’s old is New?
Not discussing:
● Termination clauses
● Post-termination bonuses
● Bad faith damages
● Harassment and #metoo
● Investigations
● Hiring and Firing
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5. www.rudnerlaw.ca
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Bill 148 47
“The Only Constant
is Change”
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6. www.rudnerlaw.ca
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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….
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7. www.rudnerlaw.ca
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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
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8. www.rudnerlaw.ca
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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
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9. www.rudnerlaw.ca
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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
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10. www.rudnerlaw.ca
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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
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11. www.rudnerlaw.ca
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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
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12. www.rudnerlaw.ca
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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
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13. www.rudnerlaw.ca
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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
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14. www.rudnerlaw.ca
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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
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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
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16. www.rudnerlaw.ca
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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
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17. www.rudnerlaw.ca
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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
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18. www.rudnerlaw.ca
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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!
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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
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20. www.rudnerlaw.ca
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Cannabis in the Workplace
Addressing Legalization &
Medicinal Use
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21. www.rudnerlaw.ca
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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?
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22. www.rudnerlaw.ca
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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
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23. www.rudnerlaw.ca
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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
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24. www.rudnerlaw.ca
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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
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25. www.rudnerlaw.ca
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Accommodating cannabis Use
What employers imagine
And yet, the sky has not fallen in
the past 3 months
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26. www.rudnerlaw.ca
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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?
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NEVER refuse any employee request for
accommodation out of hand

27. www.rudnerlaw.ca
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Cannabis in the Workplace:
4 Types of Users
1.Casual/Recreational
2.Addicts
3.Prescription Users
4.Self-Medicators
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28. www.rudnerlaw.ca
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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?
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29. www.rudnerlaw.ca
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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?
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30. www.rudnerlaw.ca
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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?
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31. www.rudnerlaw.ca
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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?
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32. www.rudnerlaw.ca
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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
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33. www.rudnerlaw.ca
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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
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34. www.rudnerlaw.ca
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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
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35. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
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Minimizing Liability:
Designing Policies and
Procedures

36. www.rudnerlaw.ca
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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
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37. www.rudnerlaw.ca
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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
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38. www.rudnerlaw.ca
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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
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39. www.rudnerlaw.ca
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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
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40. www.rudnerlaw.ca
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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
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41. www.rudnerlaw.ca
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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
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42. www.rudnerlaw.ca
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Discipline and Dismissal
● If discipline is warranted, assess what is justified
● Consider all relevant factors, including
○Past discipline
○Human rights / accommodation
○Employee response
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43. www.rudnerlaw.ca
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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
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44. www.rudnerlaw.ca
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● 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. www.rudnerlaw.ca
416.864.8500 | 905.209.6999
Questions?
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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
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