Archives for January 1989

Smoking Restrictions in the Workplace

This paper looks at the implementation of smoking restrictions in Canadian workplaces in an attempt to discover the impetus for these new policies and laws, as well as some of their social and legal implications.

Workplace smoking restrictions have come about because of new medical evidence claiming a real hazard to non-smokers from environmental tobacco smoke. Although this evidence is inconclusive with respect to healthy non-smokers, there is still enough suggestion of a long-term risk to warrant preventive action. The notion of restricting smoking has been popularized by an effective anti-smoking lobby, in turn, prompting employers and legislators to respond to the new public mood.

Case studies of the implementation of smoking policies by two Canadian employers revealed some of the difficulties involved in regulating personal behaviour and raised doubts about the effectiveness and enforceability of smoking policies.

A major implication of the legal and industrial relations issues is the fact that, despite the protection of individuals’ rights in the workplace, there is little existing law to protect the non-smoker or the smoker, but workplace legislation is quickly changing this for the non-smoker.

In light of the potential social impact on smokers and to improve the effectiveness of smoking policies, employers must combine workplace restrictions with supportive efforts in the implementation of these policies.

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AIDS and the Employment Relationship

The increased incidence of Acquired Immunodeficiency Syndrome (AIDS) is beginning to have a significant impact in the workplace. Some unique employment issues are being raised because of two dimensions of the problem: first, the disease is fatal and to date there is no known cure; and second, as a result of the lack of knowledge about AIDS, a great deal of fear of transmission of the disease persists among other members of the workforce. Current legislation provides AIDS victims with some employment protection, but because of the ‘newness’ of the disease, and the myriad of uncertain and untested boundaries that exist to be challenged in the employment relationship in this area, there is still a need to clarify the issues and to define more clearly the protection that exists in all areas of the law. In particular, there is a need for consistent social and legislative policy to assist victims of the Human Immunodeficiency Virus (HIV) to be allowed to continue to participate fully in the labour force as long as they are able to continue. Attitudes, however, appear to present the largest barrier to a satisfactory employment relationship. These discriminatory attitudes must be changed through education and continued government intervention.

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Employment Related Drug Testing: The Legal Implications for Employers

Employment related drug testing has become a contentious issue in Canada. While some employers have implemented some form of drug testing and many more are still considering it, the extent of its legality has yet to be determined by the human rights commissions, arbitrators and the courts. This essay examines the legal implications of employment related drug testing in Canada by analyzing relevant human rights legislation, arbitral jurisprudence, and the Canadian Charter of Rights and Freedoms. In carrying out this analysis some reference is made to the legal developments in the United States.

The major conclusions of this paper are that employers considering a drug testing program should avoid pre-employment drug testing for most jobs and should only test existing employees in most jobs upon a reasonable suspicion of drug use. Employers must also take all reasonable precautions in drug testing so as to ensure accurate test results and limit the extent of invasion into employees’ privacy. Finally, employers would also be wise to assist or accommodate employees who test positive prior to considering any disciplinary action.

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