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Patently Unreasonable: BC Supreme Court Rejects Human Rights Tribunal’s Landmark Injury to Dignity Award Which Emphasized Professional Status

In 2013 the British Columbia Human Rights Tribunal found that the University of British Columbia had discriminated against Dr. Carl Kelly when it dismissed him from its Family Medicine Residency Program. Dr. Kelly was awarded damages, including, significantly, $75,000 for injury to dignity, feelings and self-respect. At the time, the high water-mark for this head of damages was $35,000; this had been the result of relatively incremental increases to damages for injury to dignity over time. The award to Dr. Kelly exceeded this threshold by $40,000.

In the case of Dr. Kelly, the Tribunal held that the circumstances were such that a substantial award was appropriate, relying in part on Dr. Kelly’s life-long dream to be a physician and the humiliation and isolation from his family and friends he experienced as a result of his dismissal.

The University sought Judicial Review of the Tribunal’s decision on both the finding of discrimination and the damages awarded. In particular, the University argued that the Tribunal had put undue emphasis on the fact that Dr. Kelly was a medical resident, and that the award of $75,000 created a bifurcated approach to injury to dignity: one for professionals and one for other employees.

On September 24, 2015, the Court did not interfere with the Tribunal’s findings on the merits, but overturned the award of $75,000 on the basis that it was patently unreasonable.

Mr. Justice Silverman found that the award of $75,000 for injury to dignity put undue emphasis on the fact that Dr. Kelly was engaged in medical training and was denied access to his chosen profession. The Court held that in doing so, the Tribunal was elevating damage awards for complainants in professional occupations relative to other categories of employment. Disagreeing with the Tribunal’s finding that Dr. Kelly’s context was inherently unique, the Court held that the Tribunal’s award was patently unreasonable because there was no principled reason why this particular complainant’s circumstances warranted more than doubling the previous highest award.

Importantly, the Court did not comment on what would have been a reasonable award in the circumstances; rather, it remitted the decision back to the Tribunal for reconsideration. It therefore remains open to the Tribunal to grant Dr. Kelly an award for injury to dignity in excess of $35,000, ensuring this case will continue to attract considerable attention.

Patently Unreasonable: BC Supreme Court Rejects Human Rights Tribunal’s Landmark Injury to Dignity Award Which Emphasized Professional Status

Bill 132: Ontario’s New Sexual Violence and Harassment Legislation

The Ontario Government recently introduced Bill 132, An Act to amend various statutes with respect to sexual violence, sexual harassment, domestic violence and related matters as a response to the Government’s “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” policy statement announced earlier this year.

Bill 132 will amend various existing statutes with respect to sexual violence, sexual harassment, and domestic violence. For employers, important changes will stem from Bill 132’s proposed amendments to the Occupational Health and Safety Act (the “OHSA”), which include modifying the current definition of “workplace harassment” and imposing additional obligations on employers concerning their workplace harassment policies, programs and investigations.

Under Bill 132, the OHSA’s definition of “workplace harassment” will be expanded to include “workplace sexual harassment”, which is defined as:

  1. 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; or
  2. 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.

Notably, Bill 132 also clarifies that a reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace is not workplace harassment.

Bill 132 will require an employer’s program to implement a workplace harassment policy under section 32.06(2) of the OHSA to further set out:

  • Measures and procedures for workers to report incidents of workplace harassment to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser;
  • How incidents or complaints of workplace harassment will be investigated and dealt with;
  • That information obtained about an incident or complaint of workplace harassment, including identifying information about any individuals involved, will not be disclosed unless the disclosure is necessary for the investigation or corrective action, or is required by law; and
  • How a worker who has allegedly experienced workplace harassment and the alleged harasser (if he or she is a worker of the employer) will be informed of the results of the investigation and of any corrective action taken.

An employer will be required to renew its program at least annually and provide its workers with appropriate information and instruction on the contents of both the policy and program.

When faced with a “workplace harassment” incident or complaint, under Bill 132 an employer will be required to ensure that an appropriate investigation is conducted and that both the worker who has allegedly experienced harassment and the alleged harasser (if s/he is a worker of the employer) are informed of the results and of any corrective action that has been, or will be, taken. Notably, Bill 132 will allow an inspector to order an employer to have an investigation and report completed by an impartial third-party, at the employer’s expense.

Bill 132 passed first reading on October 27, 2015. If passed, the provisions of Bill 132 relating to the OHSA will come into force either six months after receiving Royal Assent or on July 1, 2016, whichever is the later date.

The Bill can be found here. A press release from the Ontario Government announcing Bill 132 can be found here

Bill 132: Ontario’s New Sexual Violence and Harassment Legislation

ORPP: What’s next now that the election is over

With a new federal Liberal government coming into office on November 4, 2015, what does this mean for the Ontario Retirement Pension Plan (ORPP)?  That’s the question on the minds of many employers and workers in Ontario.

As part of its campaign platform, the federal Liberals promised to work with the provinces and territories, workers, employers, and retiree organizations to enhance the Canada Pension Plan (CPP).  Now that they’ve won a majority government, CPP expansion is back on the table.  This could mean higher employer and employee contributions and also higher CPP benefits for retirees.  As a result, it’s possible that the ORPP will be put on hold.  Ontario’s Premier Wynne has always stated that expanding the CPP was her first choice; the ORPP was a response to the federal Conservative party’s refusal to do so.

What can we expect in the coming months?

Justin Trudeau, the prime minister-designate, has committed to begin talks with the provinces on how to improve the CPP within three months of taking office, so it’s likely that a meeting of the federal and provincial finance ministers will be scheduled in the near future.  But don’t expect the CPP to be expanded any time soon.  Consent among at least 2/3rds of the provinces, having in the aggregate at least 2/3rds of the population of all of the provinces, is required before any changes can be made.  It could take years to obtain this level of agreement.

Prior to the election, Premier Wynne suggested that she would be willing to drop the idea of a provincial pension plan if the federal Liberals win.  However, she recently stated that until the federal Liberals make good on their pledge to enhance the CPP, she would continue with her plan for the ORPP.

For the time being, it seems that the Ontario government will stay on course to establish the ORPP by the 2017 deadline.  This will be an easier task now, as we can expect support from the federal government to help implement the plan.

What should employers do?

All Canadian employers should be aware of, and monitor, possible proposed changes to the CPP in order to assess the potential impacts to its organization.  In addition, employers with Ontario employees should continue to review and assess their retirement savings arrangements and determine whether changes should be made, keeping in mind that the ORPP is, for now, required to be in place by January 1, 2017.

For more information on the ORPP and how the proposed plan will work, click here to read our previous postings:

ORPP: What’s next now that the election is over

Sexist Comments in Blog Post by Union President not Discrimination “With Respect to Employment”

In Taylor-Baptiste v. Ontario Public Service Employees Union, the Ontario Court of Appeal was faced with the question of whether sexist and offensive posts on a blog created by a union member to discuss workplace issues amounted to discrimination “with respect to employment” contrary to s. 5(1) of the Human Rights Code (the “Code”).

The appellant, Mariann Taylor-Baptiste and the individual respondent, Jeff Dvorak, both worked at the Toronto Jail. Ms. Taylor-Baptiste was Mr. Dvorak’s manager, and Mr. Dvorak was the president of the jail’s local branch of the respondent union, the Ontario Public Service Employees Union (“OPSEU”). Mr. Dvorak operated a blog about union matters. During a period of labour unrest in early 2009, Mr. Dvorak authored a blog post, and approved the posting of a comment written by another worker, that accused Ms. Taylor-Baptiste of, among other things, nepotism (suggesting she only obtained her position because of her relationship with her boyfriend) and incompetence. Ms. Taylor-Baptiste brought an application to the Human Rights Tribunal (the “Tribunal”), alleging discrimination “with respect to employment” contrary to s. 5(1) of the Code and harassment “in the workplace” contrary to s. 5(2) of the Code.

The Tribunal found that although postings on blogs can form part of or an extension of the workplace and the postings were sexist and offensive, these particular blog posts did not amount to harassment “in the workplace” contrary to s. 5(2) of the Code. This finding was not challenged on appeal to the Court of Appeal. With respect to the allegation of discrimination “with respect to employment”, the Tribunal considered that the comments were made by Mr. Dvorak “in the course of his duties as a … union president”, and therefore his comments enjoyed the protection of the rights of freedom of expression and freedom of association guaranteed by ss. 2(b) and (d) of the Canadian Charter of Rights and Freedom (the “Charter”). As a result, the Tribunal found that the blog posts did not contravene either section of the Code. At the request of Ms. Taylor-Baptiste, the Tribunal reconsidered its decision and upheld the initial decision.

The Divisional Court dismissed Ms. Taylor-Baptiste’s application for judicial review, holding that the Tribunal’s decision was reasonable.

Ms. Taylor-Baptiste appealed to the Court of Appeal. The Court of Appeal considered whether the Divisional Court properly applied the reasonableness standard to the Tribunal’s decision that the blog posts did not infringe her right to equal treatment “with respect to employment” without discrimination under s. 5(1) of the Code.

The Court of Appeal found that the Tribunal was entitled to take into account Charter values within its scope of expertise, and that interpreting the meaning of the words “with respect to employment” in s. 5(1) of the Code fell within the very core of the Tribunal’s expertise. The Court of Appeal also found that the Tribunal properly identified freedom of expression and freedom of association as relevant Charter rights in regard to the circumstances of this case. Section 2(b) of the Charter (freedom of expression) protects a broad range of expressive activity, including “distasteful” expression, so long as it does not reach the point of violent expression or is not, for example, hate speech. Freedom of association, on the other hand, was relevant because the blog posts dealt with union-management relations and were related to union issues, notwithstanding the sexist language. [In fact, the Supreme Court has held that expressive activity in the labour context is directly related to the Charter-protected right of workers to associate to further workplace goals under s. 2(d) of the Charter.]

The Court of Appeal then considered whether the Tribunal properly balanced the relevant Charter values with the objective of the Code. The Court of Appeal found that the Tribunal appropriately balanced the statutory objective of protecting of Ms. Taylor-Baptiste from a poisoned work environment against the Charter rights of freedom of expression and freedom of association. Based on the foregoing reasons, the Court of Appeal concluded that the Tribunal’s decision was reasonable, and upheld the dismissal of Ms. Taylor-Baptiste’s Application.

The implications of this decision remain to be seen, but it is important to note that the Court of Appeal was careful to state that its decision applied only to the facts at hand, and that it was not creating a “blanket exemption” protecting all forms of union speech from the requirements of s. 5 of the Code.


Human Rights Tribunal of Ontario: Taylor-Baptiste v. Ontario Public Service Employees Union, 2012 HRTO 1393 (CanLII).

Human Rights Tribunal of Ontario (Reconsideration Decision): Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 (CanLII).

Divisional Court: Taylor-Baptiste v. O.P.S.E.U., 2014 ONSC 2169 (CanLII).

Court of Appeal: Taylor-Baptiste v. Ontario Public Service Employees Union, 2015 ONCA 495 (CanLII).

Sexist Comments in Blog Post by Union President not Discrimination “With Respect to Employment”

Employee Time Off to Vote in the Upcoming Federal Election

Canadians head for the polls in the federal election on Monday, October 19, 2015.  The Canada Elections Act provides that with the exception of certain employees in the transportation sector, every employee who is an elector is entitled to have three consecutive hours away from work during voting hours for the purpose of casting his or her vote. In most cases, this will not be an issue, since work schedules will already result in an employee having three consecutive hours off during voting hours.  If, however, an employee’s schedule at work is such that he or she does not already have three consecutive hours off to vote, the employer must, at a time chosen by the employer, allow each employee time off such that the employee has three consecutive hours free from work during voting hours.  Employers cannot make a deduction from the pay of an employee, or impose a penalty, for the time that the employer allows the employee to vote.

For example, if the voting hours in the riding are 9:30 a.m. to 9:30 p.m. and the employee usually works from 11:00 a.m. to 7:00 p.m., the hours of work will not allow for three consecutive hours for voting. To give the employee three consecutive hours to vote, the employer could allow the employee to arrive late (at 12:30 p.m.), let the employee leave early (at 6:30 p.m.), or give the employee three hours off at some point during the work day.  Notwithstanding the time off, the employee must still receive the full pay for the regular shift.

Polls are open for twelve hours on election day but voting hours vary across Canada. For more information, please visit: http://www.elections.ca/home.aspx.

Employee Time Off to Vote in the Upcoming Federal Election

British Columbia: A guide to B.C.’s new pension legislation for HR professionals

On September 30, 2015, British Columbia’s new Pension Benefits Standards Act (PBSA) and Regulation came into effect.  The PBSA has wide-ranging implications for HR Professionals who oversee BC-registered pension plans and certain non-BC-registered pension plans with BC members. Among other things, all provincially regulated pension plans with BC members must be administered in a manner consistent with the PBSA effective September 30, 2015, including immediate vesting and locking-in for all service and new portability provisions for BC members. Compliance amendments to bring pension plans in-line with the PBSA must be filed with applicable regulators by December 31, 2015.  In addition, administrators of BC-registered pension plans must file a Contribution Schedule with the plan’s fund holder by the end of October, 2015, and prepare written Governance, Funding and Records Retention policies by the end of 2015.  The PBSA authorizes the Superintendent to impose administrative penalties on corporations and individuals for non-compliance and increases financial penalties, to a maximum of $500,000, for offences under the Act.  To read more about these and other requirements of the PBSA and Regulation, please follow this link: A Guide to BC’s new pension legislation for HR Professionals.

British Columbia: A guide to B.C.’s new pension legislation for HR professionals

Minimum Wage Increase Now In Effect in many Canadian Provinces

On October 1, 2015, the minimum wage in Alberta, Manitoba, Newfoundland and Labrador, Ontario and Saskatchewan has increased.

Province Current General Minimum Wage (as of October 1, 2015) Previous General Minimum Wage
Alberta $11.20/hour $10.20/hour
Manitoba $11.00/hour $10.70/hour
Newfoundland and Labrador $10.50/hour $10.25/hour
Ontario $11.25/hour $11.00/hour
Saskatchewan $10.50/hour $10.20/hour


Please note that there are different minimum wage requirements in many provinces that depend on the classification of the worker, such as liquor servers.

Employers are reminded to update their employment contracts and practices to ensure they reflect the new minimum wage

Minimum Wage Increase Now In Effect in many Canadian Provinces

Employer liability relating to fees in employer-sponsored retirement and savings plans

Employers who sponsor retirement and savings plans for their employees should ensure that the fees paid by their employees within the plans are reasonable and adequately disclosed.  Lawsuits in the U.S., and a recent regulatory undercover investigation in Canada, serve as a reminder of the risk of employer liability regarding fees.  This article will describe the risks for Canadian employers, and suggest a few simple things that can be done to reduce those risks.

What kinds of plans expose employers to the risk of claims over fees?

The kinds of employer-sponsored plans at issue here are workplace plans known as “CAPs”, meaning “capital accumulation plans”.  These are plans that do not promise a defined benefit pension.  Instead, they provide an individual account for each employee, where contributions are made by the employees, the employer, or both.  CAPs sponsored by employers include defined contribution registered pension plans, Group RRSPs (group registered retirement savings plans), deferred profit sharing plans, non-registered savings plans and tax-free savings accounts.

The employer selects a service provider and the line-up of investment funds to be offered in the CAP.  Employees decide which investment funds they want their account balances to be invested in.

It is common for the costs of the plan to be paid by way of fees charged to the investment funds and accounts of the employee members.  It is also common for employers to rely on the service-providers they have hired to describe to their employees what the fees are.

Exactly what are the legal requirements?

The legal obligation of employers regarding fees is not set out in detail in legislation.  For registered pension plans, generally speaking, there are broadly-worded legislative requirements that employers who sponsor defined contribution registered plans act prudently.  There is little detail in pension legislation as to exactly what that means, with respect to fees paid by plan members.

Eleven years ago a significant document was issued by three Canadian regulators who have jurisdiction over various aspects of CAPs.  The 2004 document, known as the “CAP Guidelines,” says that employers should ensure that employees are provided with a description and amount of all fees and expenses that are borne by the members, including investment fund management and operating fees, record keeping fees and fees for services provided by service providers.

The regulators stated in the CAP Guidelines that fees can be disclosed to plan members on an aggregate basis, “provided the nature of the fees, expenses and penalties is disclosed”.  This means that it is not sufficient to refer in broad terms to an approximate amount of total fees that members will be charged for a vague summary of services.  Rather, there should be a description of what kinds of services are being provided for a fee, what kind of a fee is being charged (a flat fee per participant? a percentage of assets?), who is providing the service, and how much those services cost.

Regulators have not stood still on the issue of fees since the 2004 CAP Guidelines were released.  A few weeks ago the Ontario pension benefits regulator issued a draft guidance note for public comment.  The draft states that statements of investment policies and procedures for registered pension plans should include a description of fees, including:  “which expenses and fees will be paid by the employer and which will be borne by plan members; expectations or limits on total plan expenses and fees; and guidelines for monitoring expenses and fees”.  It is likely that this draft guidance note will be issued in final form in the near future.

Secret regulatory probe into investment fees

In an undercover operation, three Canadian investment regulators sent 105 mystery shoppers to a variety of vendors of investment products such as mutual funds.  The operatives posed as potential individual investor clients, and reported their experiences to the Ontario Securities Commission, the Investment Industry Regulatory Organization of Canada and the Mutual Fund Dealers Association of Canada.  The regulators released their findings on September 17th, 2015.

The results of the investigation were troubling.  Only 25% of the mystery shoppers were told how the vendor of the investment would be compensated.  And only 56% of them were told anything at all about the fees associated with the investment products they were offered.  Where fees were disclosed, more than one-third of the shoppers were given inadequate information about fees.

The investigation uncovered proof that many investment advisors are not properly disclosing fee information to individual investors.  The probe did not examine employer-sponsored retirement and savings group plans.  Nevertheless, the results of the investigation should prompt employers to confirm that their employees are getting appropriate information about the fees they are paying in their workplace retirement and savings plans.

Employers sued in the U.S. over fees

Dozens of lawsuits have been filed in the U.S. against employers in the past few years regarding fees charged to employees in workplace retirement plans.  Allegations included claims that service providers were receiving “revenue sharing” payments, fees were excessive because the plan sponsor had selected actively managed mutual funds as plan investment options when identical, less expensive institutional funds were available, fees were improperly allocated among participants, service providers should not be paid fees based on a percentage of assets, and fees were “hidden”.  Several high-profile cases were settled on the basis that employers agreed to pay amounts to plan members, and to change to the structure and disclosure of fees going forward.

What’s an employer to do?

Review the fees.  Benchmark them against fees charged in other employers’ plans; your service provider should have access to that industry information.  Are they equitably allocated among participants?  Are any service providers getting a percentage of assets when a less expensive, fixed fee is available in the marketplace?

Disclosure, disclosure, disclosure.  Ensure that information about the fees appears prominently in communications to your employees.  Can employees see who gets their money, and what services they receive for their fees?

Statement of Investment Policies and Procedures.  If you have a policy, or governance guideline of some kind relating to your CAP, include a description of the type and amount of fees charged, and how the fees are allocated among the various players (investment managers, record keepers, auditors, consultants, etc.).

Get it in writing.  Ask your service provider, or consultant, to confirm in writing that the fees are reasonable, and properly disclosed.  Ask for that comfort at least annually.

Employers rarely play a role in negotiating and disclosing fees charged to employees in their retirement and savings plans.  Employers usually rely on their service provider to do so.  Given the spate of lawsuits in the U.S., and the results of the recent regulatory undercover operation in Canada, it would be prudent for Canadian employers who sponsor CAPs to periodically review the information provided to members of their CAPS, in order to ensure that fees are reasonable, and that complete information about fees is being provided.

Employer liability relating to fees in employer-sponsored retirement and savings plans

Employee denied bonus payment on the basis of “somewhat draconian” termination provision

In the recent Ontario Superior Court of Justice decision, Kielb v National Money Mart Company[1], an employee was denied a bonus payment upon termination based on the provisions of the employment contract.  In the decision, Justice Akhtar confirmed that “the harshness of [a] provision does not make it invalid if both parties have agreed to it”.

The plaintiff, a lawyer named Jonathan Kielb, commenced employment with National Money Mart Company (“Money Mart”) in 2008. The employment contract that Mr. Kielb signed included a termination clause, as well as the following provision in respect of his bonus (the “Limitation Clause”):

Any bonus which may be paid is entirely at the discretion of the Company, does not accrue, and is only earned and payable on the date that it is provided to you by the Company. For example, if your employment is terminated, with or without cause, on the day before the day on which a bonus would otherwise have been paid, you hereby waive any claim to that bonus or any portion thereof. In the event that your employment is terminated without cause, and a bonus would ordinarily be paid after the expiration of the statutory notice period, you hereby waive any claim to that bonus or any portion thereof.

On April 21, 2010, Money Mart terminated Mr. Kielb’s employment on a without cause basis, and offered him 8 weeks of pay in lieu of notice (inclusive of the 2 weeks of statutory termination pay), in compliance with the termination clause of his employment contract.

With respect to the bonus, since Mr. Kielb was not an employee on the September 17, 2010 payment date, and the payment date was not within Mr. Kielb’s statutory notice period, Mr. Kielb did not receive any bonus payment in respect of the 2010 fiscal year. [2]

Mr. Kielb’s position was that the bonus was an integral part of his compensation, and therefore should be payable up to the last day worked and through the contractual notice period, despite the language in the Limitation Clause.  Mr. Kielb argued that because the bonus was an integral part of his compensation the Limitation Clause was unenforceable, because it was: contrary to public policy, inconsistently applied, and/or ambiguous, contradictory and illegal.

In considering Mr. Kielb’s arguments, Justice Akhtar came to the following conclusions:

  • Given Money Mart’s representations to Mr. Kielb at the time of hiring, the bonus did form an integral part of his compensation package. However, the Limitation Clause was not contrary to public policy and as such, it operated to restrict Mr. Kielb’s right to the bonus payment. Mr. Kielb was dismissed in April and since the bonus payment date did not fall within the 2-week statutory notice period, Mr. Kielb was not entitled to any bonus payment.
  • Additionally, while Money Mart’s treatment of Mr. Kielb’s bonus entitlement may have differed from its treatment of other terminated employees’ entitlements, Mr. Kielb was nevertheless ineligible for the bonus payment because of the terms of the Limitation Clause.
  • Lastly, the Limitation Clause was unambiguous. The language was clear that Mr. Kielb was only entitled to a bonus if the payment date fell within the statutory notice period, and since the payment date was well outside of this period, Money Mart was not required to make a bonus payment.

This case is a good example of how an employer can use clear and unambiguous language in an employment contract to restrict its liabilities upon termination, specifically with respect to bonus payments.  While Money Mart’s verbal representations to Mr. Kielb about its bonus program caused the bonus payment to be an integral part of his compensation package, Mr. Kielb accepted the position with full knowledge that on termination his entitlements would be restricted by the Limitation Clause, and was consequently bound by its terms.

[1] 2015 ONSC 3790.

[2] Had it been payable, the bonus would have amounted to 59.4% of his base salary (i.e. approximately $86,239.56).

Employee denied bonus payment on the basis of “somewhat draconian” termination provision

Medical Marijuana in the Workplace

With the recent expansion of legislation permitting the production, sale and use of marijuana for medical purposes, employers should begin to think about crafting a policy which addresses medical marijuana use in their workplace.

For example, the smoking of regular cigarettes is not permitted in buildings or near entrances and exists to buildings.  Employees who want a smoke usually need to head further afield during their breaks.  But is it proper to ask the same of employees who are smoking medical marijuana and may have a disability?  Is it proper to make them smoke in the presence of others, so that their disability is no longer a private matter?  Is it proper to have regular smokers ingesting medical marijuana smoke if all smokers are required to smoke in the same area?
These are but some of the questions which an employer should be considering  when drafting a policy to address the use of medical marijuana in the workplace.  Other questions to be considered include the following:

  • Should a designated room be provided on the premises in which medical marijuana users can smoke on a private and confidential basis?
  • What rules will apply to the employee?  Should he or she be required to cease working and report to a manager in the event of feeling unwell after medicating?  Should he or she be required to refrain from operating a motor vehicle or machinery for work purposes after medicating?
  • What documentation will be required from the employee’s treating healthcare professional?
  • What steps will be taken by the employer in order to ensure that the needs of the employee are being met, without compromising the employee’s ability to perform his or her job, or the safety of the workplace?
  • Who at the company must know about and approve an employee’s use of medical marijuana in the workplace?  What steps will be taken in order to otherwise keep that information confidential?

There are no guidelines in place to assist employers with drafting policies such as this, although reference to policies which provide for accommodations to disabled employees may be a good starting point.  The important thing for an employer is to be aware of the fact that it is best to have a policy in place in advance of these questions being raised by an employee seeking to medicate at work, and that we can assist with ensuring that your workplace policy strikes the proper legal balance with respect to meeting the needs of all potentially affected individuals.

Medical Marijuana in the Workplace