The Performance Appraisal Process: Lessons Learned

 Lessons Learned

Just as leadership styles and organizational work have evolved, so have perspectives on performance evaluation. Traditional performance evaluation is hierarchical, control-oriented, and focused on individual ranking and grading. Present-day performance evaluation is relational, facilitative, and focused on development and problem-solving (Leadership, R. Lussier, et al).

In Ontario, teacher performance appraisal requirements and processes are legislated. While the legislation is founded on a more traditional “three strikes you are out” mandate, the philosophy and practices are more contemporary. They are “designed to provide meaningful appraisals of teachers’ performance that encourage professional learning and growth; identify opportunities for additional support where required; and provide a measure of accountability to the public” (Education Act, Part X.2, Regulation 98/02, Reg 99/02).

Two recent arbitral awards regarding teacher performance appraisal in Ontario provide insight regarding best practices for strategic leaders in modern organizational work environments. A review of the Gusita award (OSSTF vs. TDSB, 2011) and the Tait award (OSSTF vs TLDSB, 2018) will highlight the arbitral standards that must be met, the essential features of performance appraisal to meet those standards, and lessons learned.

Fireable Offences Without Defences

Fireable Offences Without DefencesOverview

Considering the difficulty in proving just cause, along with the potential monetary consequences for improperly alleging just cause, employers should engage in sufficient procedural steps prior to asserting just cause for termination. Such steps would likely include engaging in a thorough and fair investigative process and/or providing employees with warnings in relation to misconduct.Termination for ‘just cause’ (and without notice) is often described as the capital punishment of employment law.  Consequently, employers face a significant burden when trying to prove just cause at law. Arguing just cause for dismissal may be difficult, but not impossible, especially in circumstances involving dishonesty or lack of trust.  Nevertheless, employers should always exercise caution when making just cause allegations, because a legally unsubstantiated just cause termination can be costly. If an arbitrator overturns an employer’s termination decision in a unionized environment, this can result in a decision that reinstates that grievor and provides him or her with significant back pay. Non-unionized employees will generally not be entitled to reinstatement, although, unsubstantiated just cause allegations can be equally expensive. Canadian courts have often awarded significant additional bad faith and/or punitive damages in cases where employers create economic hardship by erroneously asserting just cause and failing to pay an employee’s notice entitlements.

Progressive discipline is one factor adjudicators consider when reviewing a just cause termination, and case-law provides that even a minor offence may justify just cause for dismissal if an employee’s disciplinary record is sufficient. Although certain types of conduct (such as theft or violence) may be more likely to warrant discharge on first offence, employers must always take a contextual approach and view mitigating factors, which may include: lengthy seniority, clean record, condonation, admission of wrongdoing and/or remorse. Further, employers should always consider whether or not there are any potential human rights considerations linked to the misconduct.  For instance, does the employee have a disability that has contributed to the conduct (such as a health condition, addiction or other mental illness)?

Employees facing allegations of misconduct should seek appropriate professional advice to understand what factors may assist in potentially saving their employment relationship (such as candour, honesty and recognition of wrongdoing during the investigation process).

This article will review various decisions upholding a just cause termination, while also canvassing the factors and considerations that impact the determination of whether or not a just cause allegation may be substantiated at law.

Workplace Harassment After #MeToo

Workplace Harassment After #MeTooOn October 5 2017, the New York Times published an article detailing serious sexual harassment allegations against famous Hollywood producer Harvey Weinstein.[1]  Three days later, his company’s Board of Directors terminated his employment effective immediately.[2] In this context, actress Alyssa Milano took to Twitter, encouraging all women who have been sexually harassed or assaulted to change their status to “Me Too” (a hashtag originally coined by activist Tarana Burke) in order to give people a sense of the magnitude of the problem.[3]  Since then, “Me Too” hashtags spread virally across the world’s social media accounts, having reportedly been posted or commented on millions of times.[4] The women who came forward about sexual harassment allegations were referred to as “silence breakers”, and Time Magazine named these “silence breakers” its “2017 Person of the Year”.[5]  This movement led to an outpouring of new allegations against various male celebrities and public figures on an ongoing basis.  What followed was the rapid downfall of many of those accused, leading to prompt resignations and terminations from their respective roles.

Meanwhile in Canada, two high profile politicians recently resigned promptly after public allegations of sexual harassment and/or misconduct were made.  Amidst the #metoo movement, the Toronto Rape Crisis Centre reported an increase in calls.[6] It appears many employers experienced a similar spike in sexual harassment related complaints, likely due to heightened awareness of the issues and women encouraged to speak out by those who already had. Workplace sexual harassment is a complicated subject.  It involves far more than inappropriate comments or unwanted sexual advances. Sometimes consensual relationships can be considered sexual harassment when a significant power imbalance exists. Consensual relationships gone sour can turn into sexual harassment if reprisals or unwanted advances occur after the relationship ends.  Joking co-workers and jock culture may create a toxic working environment for those exposed to it.  Complainants may not wish to come forward due to fear of losing their jobs.  Not all complaints are meritorious, leaving some respondents wrongly accused, stigmatized and/or wrongfully dismissed.  When receiving a sexual harassment complaint, employers have an obligation to inquire most often by way of an investigation.  Third-party or external investigators may be most appropriate in sensitive situations. Given the complexity of sexual harassment issues, findings and fault may not always be clear cut. In some cases, employers should terminate the respondent.  In other cases, substantiated findings may not warrant termination, but instead discipline and training. The workplace culture must be considered and may require change, and every circumstance must be considered based on its own facts.

The #metoo movement has empowered many women who were the victims of unjust behaviour to come forward, although the movement has its own inequities by persecuting and often impacting the livelihood of the accused without due process, or any process whatsoever.  The court of public opinion quickly makes judgment, but employers should not do the same. Due process is important for all parties, as an employer has an obligation to all of its employees, both in terms of maintaining a safe workplace for all, and in terms of not summarily dismissing someone simply because an allegation is made. This article will explore the complex considerations regarding sexual harassment in Canadian workplaces, consider the roles and obligations of all parties involved, and review the importance of investigations and due process in relation to workplace sexual harassment complaints.

Download Full Article (link below footnotes)

 


[1] Jodi Kantor and Megan Twohey.  “Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades”, NYTimes.com, last modified October 5, 2017, https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html

[2] Robehmed, Natalie.  “Harvey Weinstein Fired From The Weinstein Company”, Forbes.com, last modified October 8, 2017,https://www.forbes.com/sites/natalierobehmed/2017/10/08/harvey-weinstein-fired-from-the-weinstein-company/#12af4f216681

[3] Milano, Alyssa (@Alyssa_Milano). “If you’ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”  15 October 2017, 1:21 pm. Tweet.

[4] Unknown. “More than 12M “Me Too” Facebook posts, comments, reactions in 24 hours”, CBSNews.com,  last modified October 17, 2017, https://www.cbsnews.com/news/metoo-more-than-12-million-facebook-posts-comments-reactions-24-hours/

[5] Stephanie Zacharek, Eliana Dockterman and Haley Sweetland Edwards “Time Magazine Person of the Year”. Retrieved from: http://time.com/time-person-of-the-year-2017-silence-breakers/

[6] McLaughlin, Amara. “Toronto sexual assault, harassment services flooded by calls triggered by #MeToo movement”, CBC.ca, last modified October 27, 2017, http://www.cbc.ca/news/canada/toronto/toronto-sexual-assault-harassment-services-flooded-by-calls-triggered-by-metoo-movement-1.4375827

The Golden Years: The Aging Workforce and Human Rights Matters

Overview

 The Aging Workforce and Human Rights MattersEmployers can significantly benefit by retaining and hiring older employees who may offer considerable knowledge, experience and insight, along with dedication and work ethic. All of these benefits are accompanied by a unique set of human rights considerations related to our aging workforce, including age discrimination and age related disability.    As the Canadian population ages, so does our workforce. Mandatory retirement programs have generally been outlawed (with few exemptions), and many Canadians now choose to work into their 60s and 70s for various reasons including: fulfillment, financial gains, longer life spans, lack of savings and failed pension plans.

With respect to age discrimination, employees may experience ageism within an ongoing employment relationship, or when trying to secure a new job later in life. Older employees may feel like they are being forced to retire or may be passed up for deserved promotions on the unverified assumptions they will not be working too much longer. Older employees may also be targeted for termination, when they had intended to work for several years more. Persons seeking new jobs later in life may experience age discrimination during the recruitment process.

With respect to age-related disability, older employees may experience medical issues, and employers must accommodate age-related health issues in the exact same way that any other disability is accommodated. Some disabilities are far easier to accommodate than others. A defined physical limitation may be readily accommodated on a permanent basis by using an assistive device, whereas an invisible disability and/or cyclical disability may require a more flexible accommodation approach. For instance, an employee experiencing certain forms of arthritis may feel significant pain and require time off during flare-ups; however, the cyclical and sporadic nature of the required accommodation could present scheduling challenges.  Far more challenging is understanding and accommodating a brain disorder (such as Alzheimer’s disease or dementia).  In such situations the employee may not even be aware of their own health issues, and the employer will be tasked with determining if any medical conditions even exist and if so, if such can be accommodated.

The aging population may also result in increased requests for family status accommodations, when children or relatives request time off to assist in the caregiving needs of their elders.

This article will explore some key human rights considerations and interesting case-law related to our aging workforce.

Invisible Barriers: Accommodating Mental Illness in the Workplace

 Accommodating Mental Illness in the WorkplaceMental illness is a leading cause of disability in Canada.(1) In fact, at least 500,000 employed Canadians are not able to work due to mental health problems in any given week.(2) Twenty percent of Canadians will personally experience a mental illness in their lifetime, and it is likely that all of us will be directly or indirectly impacted by mental illness through family members, friends or colleagues.(3) As Canadians and medical professionals increase awareness and understanding regarding mental illness, our workplace and human rights laws similarly evolve in attempts to protect mental illnesses like any other disability. While our laws strive to provide adequate workplace protections in relation to mental illness, the art of managing mental health accommodations remains challenging for employers and employees alike.

Visible or physical disabilities can often be easier to understand and to accommodate. Defined physical restrictions or recovery periods provide finite terms which are easier to address and are easier to accept as legitimate needs. Accommodating the invisible barriers presented by mental illness often remains far more challenging. Many persons experiencing mental illness may not wish to share details in the workplace, fearing stigmatization, embarrassment or privacy issues. Other persons may lack awareness that they are undergoing a health-related issue. For example, those struggling with addiction may have little or no self-knowledge that a medically recognized disability drives their compulsion to use. Adults experiencing their first episode related to mental illness may not recognize the signs and symptoms until weeks, months or years after the occasion.

Employers face a variety of different but equally challenging situations. For instance, when an employee silently struggles, employers may be tasked with difficult conversations to ensure adequate inquiry while not overreaching. The inability to clearly define prognosis and restrictions related to mental illness can make it difficult for employers to differentiate between legitimate medical needs versus employee abuse. Employers also often receive questionable and seemingly unsubstantiated accommodation requests, for instance: he cannot work Tuesdays or he cannot drive a Smart Car. No matter how obscure, employers should carefully consider each circumstance on a case-by-case basis and request adequate medical information without overreaching. Even in the very best circumstances where the employer and the employee harmoniously work together, difficulties may arise since the unpredictable and episodic nature of some mental illness can create attendance and staffing issues, and create obstacles even with good faith accommodation efforts.

Understanding and accommodating mental illness is an evolving area that requires a flexible approach. This article will discuss the key legal requirements and interesting related case-law related to workplace mental health issues.

Human Rights and Human Wrongs: Our Continuing Need to Teach

 Our Continuing Need to TeachFrancine had been disciplined before. She had been suspended for 3 days, for an angry outburst that she had in the shipping department. But this time was worse.

Francine was in the cafeteria, finishing her break. Three co-workers sat down at the same table, and within minutes she began yelling and swearing at them. One of them began talking to her, trying to quiet her down. She threw her cup of tea in his face, and then left the room.

Francine was terminated. The letter of termination cited the company anti-violence and harassment policies.

The most interesting piece of the story arose during mediation, when the grievor told the mediator that she didn’t have a problem with anger – she had a problem with the Filipino employees who were working in the plant. “They are all so tight, always together, and they are taking all the jobs in the plant. None of my nephews, and none of my friends’ kids are getting the new jobs…”

This is not just a problem with anger management. This is a problem with racism. Canadian workplaces are full of it.

Mark was new to the parks department. He was thrilled with his new job, and wanted nothing more than to work outside. He was fond of his co-workers, with whom he enjoyed regular Twitter banter about just about anything that came to mind. He commented on the breast size of the girls in the park, and on his view that the non-white cohort of the workforce worked at a slower pace than he and his buddies.

He laughed when one of his co-workers, a black female, replied to one of his tweets by calling him a major jerk. He laughed when she filed a grievance, asserting that he was poisoning the workplace with his offensive Twitter activity, and demanding that management take steps to prohibit the behaviour.

He didn’t laugh when he was suspended from work, pending investigation of the grievance.

This is not just a case of “boys will be boys.” This is discrimination on the grounds of sex and race. Canadian workplaces are full of it.

Angel had twenty years’ service with the company, and was pleased to see the posting for dispatcher. He applied immediately, confident that after all those years, he was going to see a less physical, more predictable, and slightly more prestigious position. When he learned that his competition for the job was the new kid – the one who limps – he lost it. His rant included comments about the “rookie cripple” and the “lousy gimp.”

Angel not only lost his bid for the dispatcher job; he was disciplined for violation of the company human rights policy.

This is not just a case of conflict between seniority and human rights principles, it is discrimination against those with disabilities. Canadian workplaces are full of it.

Consider the implications

A workplace in which there are human rights issues and conflicts can expect the following problems:

  • Individuals experience pain and genuinely suffer
  • Employees who are victims of discrimination work poorly and eventually get sick
  • Employer reputation is threatened or impaired
  • When workplace poisoning occurs over social media, the image of that workplace is immediately broadcast widely, without geographic boundaries. Global efforts become global embarrassments.
  • There are hostile feelings among employees
  • Groups and cliques of employees form
  • Individuals and groups become marginalized
  • Hostilities flare up from time to time, raising threats of and actual violence
  • Union executive become burdened
  • Time and effort are invested in individual conflicts
  • The relationship between the union and management suffers
  • Money is spent on external resources – investigators, lawyers, mediators, arbitrators

Individual conflicts might be resolved, but systemic discrimination often remains as a fertile ground for the next individual conflict.

We Have the Resources

Human rights legislation is not new to Canadian workplaces in any jurisdiction. We have a rich history of meaningful anti-discrimination legislation. We have huge bodies of jurisprudence breathing vigour into the statutes. Our collective agreements have come to recognize, respect and embrace human rights principles. We have proactive human rights commissions that provide accessible and practical resources to individuals, unions and employers. We have human rights and anti-discrimination policies by the truckload in every workplace in the land. There is no shortage of educational programming, of policy reviewing, of posters in lunchrooms.

But the Problem Remains

Yet there remains, I respectfully argue, a continuing cloud of discrimination in Canadian workplaces. Discrimination continues to poison the lives of individual employees, burden our unions, bog down our management teams, and over-employ our lawyers, mediators and arbitrators.

It continually surprises me, in the course of practising mediation and arbitration, how frequently these issues arise in our workplaces. How pervasive the problem is.

Part of the difficulty, of course, is that although some of us have invested our entire professional lives learning, teaching and fighting human rights issues, every time a workplace welcomes a new employee, that workplace opens its doors to a new influence. That new influence is not likely to have had the benefit of all of that learning, any of that teaching, or any of that fighting.

The challenge of fighting discrimination arises anew every time we hire a new employee.

The task of teaching what human rights are, what discrimination is, and what is and is not permitted in the workplace is a critical task that must be brought alive with every new hire. It is a task that requires vigilant attention. It is a task that is worth repeating and refreshing.

It is Our Responsibility to Teach

With few exceptions, high schools do not teach fundamental human rights concepts. With few exceptions, and unless students pursue specific training, undergraduate university curricula do not include the teaching of fundamental human rights concepts. With few exceptions, career programs and professional schools such as nursing and teaching, do not teach fundamental human rights concepts.

The ultimate responsibility to teach human rights concepts, to explain what discrimination is and why it is prohibited by law, falls upon the employer and the union.

At the risk of repeating a point – when the employer takes on a new hire, when the union welcomes a new member, the likelihood is that although this person has heard of a “human rights code”, they have absolutely no familiarity with it. They are not familiar with its principles. More importantly, they are not familiar with what behaviour is and is not allowed in the workplace. Even with those who have some fundamental training in human rights concepts, there is often a “disconnect” between their appreciation of the concept, and their ability to see what behaviours are and are not discriminatory.

I will go so far as to say that with some frequency, even those have been engaged in management roles or union responsibilities require fundamental education in human rights concepts and practical application of those concepts. In teaching human rights principles at Queen’s IRC, we are constantly impressed with the light bulbs appearing over the heads of those who have been familiar with human rights lingo for years, but have never quite appreciated how the words apply.

In the classroom, seasoned managers are still seen rolling their eyes over the challenge and cost of, for example, accommodating the employee disabled by alcoholism, addressing the needs of a parent whose disabled kid contributes to attendance issues, or coping with the conflicts caused by the gender-shift surgery. Our instructors remind them that human rights protections reflect the deeply held values of Canadian society, delivered as a result of democratic legislative process.

Human rights codes are not stable or one-off enactments. They change from time to time, as the norms and values of the community shift. Forty years ago we did not consider gender a characteristic worthy of workplace respect. Thirty years ago we did not consider alcoholism or drug addiction to be a disability. Twenty years ago we did not consider sexual orientation worthy of protection, family status an issue of workplace concern, or transgendered identity a choice worthy of dignity. As the norms and values of our culture shift, so do our human rights codes and their requirements.

Human rights codes, at their core, reflect the reasons that most of our ancestors came to Canada. They continue to be part of the reason that those from less peaceful parts of the world still make that journey.

So What is the Answer?

It is critical that employers and unions continue to embrace their responsibilities to learn and teach fundamental human rights concepts. It is critical that we continue to teach managers and supervisors what the principles are and how they apply to day to day behaviours. It is critical that each new hire receives a meaningful education about what discrimination means and how the rules apply in their workplace.

No, it is not sufficient to hand a new hire a copy of the human rights policy, and ask them to initial it. That is not teaching – that is mere administration.

No, it is not enough to call employees or members together once every few years to hear someone talk about human rights ideals. That is not teaching either.

No, it is not enough to post the results of the latest arbitration award or court decision that affected your workplace, and have employees learn from the mistakes of others. That may be teaching, but it is very expensive teaching.

How to Teach?

Adults learn from reading, listening, discussing, and then practicing. We have to have an opportunity to absorb the information, and then to apply it. We need the lessons, but then we need to learn how to implement them. We have to practice the lessons. We need to translate the human rights lingo into every day words and actions.

Classrooms, seminars, workshops, on-site sessions, and role play opportunities are essential pieces of in-house training systems for all employees. Adult students must be required to feed the information back to the instructor, in order to break the learning barrier. Human rights training in any environment must be interactive. Examples of behaviours that are and are not appropriate must be provided – again and again.

Managers, supervisors and union executive require clear opportunities to learn what is and is not permissible behaviour. Although front line workers require a degree of human rights training, a workplace culture will not be affected and improved unless managers, supervisors and union executive have a firm grip on the concepts, and are ready to model behaviour appropriately.

We have to teach employees, managers and supervisors appropriate intervention and behavioural correction when others commit acts of discrimination.  Counselling must accompany progressive discipline in this area. (Discipline alone is a poor teacher, as perpetrators become defensive and denying.) This is a tough area to teach in-house. It should include some awareness of “difficult conversations” and skillful feedback.

Just as workplaces assess the risk of workplace violence by surveying their employees, the practice of repeated surveying for discriminatory behaviours and workplace poisoning is advised. Regular scrutiny will track shifting sensibilities, enabling policies and practices to shift as well.

Finally, an acute awareness of human rights in the workplace will translate into a practice of never missing an opportunity. Any time employees gather in one place is a good time to remind them that this workplace, and this union, reflect certain values, and that their behaviour, day in and day out, is a reflection of those values.

There is no downside to getting passionate about human rights in your workplace. It is individuals who affect change, and the small steps that influence the larger shifts.  Train and empower one person to be the advocate for the human rights high ground. It is a valuable investment, and one that will return human rewards.

About the Author

Elaine Newman, Arbitrator and Mediator, Queen's IRC FacilitatorElaine Newman, Ba, LL.B., LL.M., was called to the bar in Ontario in 1979. Elaine is a very experienced full-time arbitrator and mediator, specializing in labour relations, employment, and human rights matters. She is a teacher, an author, and frequent speaker on labour, employment and human rights issues. Elaine served as Associate Director of the LLM program in Labour Relations and Employment Law at Osgoode Hall Law School 2002 to 2008. She was lead instructor for the Advanced Dispute Resolution Course at Atkinson Faculty, York University for ten years, where she taught the Ethics of Mediation course, and the Advanced Practicum course. She is a frequent guest speaker at Queen’s IRC programs, and is lead instructor of the Strategic Grievance Handling program. Elaine is the author of the online course, “Practical Ethics for Working Mediators”, offered by the ADR Institute of Ontario.  Her textbook, Preventing Violence in the Workplace, is published by Lancaster House, Toronto.

Workplace Bullying and Harassment: Costly Conduct

 Costly ConductAs media scrutiny over schoolyard and cyberbullying pervade the news, allegations of workplace harassment and bullying are on the rise. Media reports reveal the deleterious and even deadly impact that bullying can have on children in our communities. Unfortunately for employers, adults in our workplaces sometimes engage in similar transgressions. While the popularization of the terms “bullying” and “harassment” has both educated and empowered employees to assert the right to a respectful workplace, it has conversely sometimes resulted in overuse of the terms and meritless complaints in relation to reasonable management measures. Employers are left with the difficult task of managing all competing interests to ensure a safe, respectful and productive work environment.

One Canadian professor previously estimated that a whopping 40% of Canadians experienced one or more acts of workplace bullying at least once a week.(1) Although it is difficult to determine exactly how much harassment and bullying actually occurs in Canadian workplaces, we can be certain of the impact of such conduct. Workplace bullying and harassment create a toxic work environment resulting in many negative effects which may include: decreasing productivity, increasing employees’ use of sick days, damaging employee morale and causing attrition of good employees. It can also result in significant legal liabilities. Considering all of these potential impacts, the tangible and intangible costs of workplace harassment and bullying can be high. This should be reason enough to motivate employers to expeditiously address such issues; however, for those not motivated by practical business measures or healthy employee relations, we should also consider the expansion of Canadian laws to protect workers from harassment and bullying, and the significant liabilities that can arise when such issues are not properly addressed.

Labour Relations in Canada: The Changing Landscape of Collective Bargaining after Ontario (A.G.) v. Fraser

 The changing landscape of collective bargaining after Ontario (A.G.) v. FraserFollowing the decision of the Supreme Court of Canada (SCC) in Ontario (A.G.) v. Fraser (Fraser), there has, predictably, been widespread speculation as to its eventual effect on the labour relations landscape in Canada.  A departure from other recent SCC case law, Fraser found that there was no constitutional guarantee for any specific form of labour relations or collective bargaining regime.  Even if the decision was significant in shaping Canada’s constitutional framework for collective bargaining, any tangible effect on labour policy has yet specifically to materialize. That said, there has certainly been a shift in the discourse concerning labour relations, labour policy, and the role of unions in Canada, and certain recent policy initiatives suggest that broader change may very well be coming.

This article highlights some of those initiatives, discusses how Fraser laid the groundwork for them, and considers what they could mean for the future of labour relations in Canada. In doing so, this article first traces the jurisprudential treatment of labour relations policy since the SCC decision in Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia (BC Health) – the immediate constitutional precursor to Fraser. It then reviews a number of post-Fraser policy initiatives, the effect they have on the labour relations landscape, and their potential implications for the future.

Random Drug and Alcohol Testing in the Workplace

 Balancing Employee Privacy Interests with Workplace SafetyIn modern society, safety and privacy interests frequently seem to conflict, particularly in the workplace. Random drug and alcohol testing is one instance when these interests may conflict. Employers are obligated under occupational safety legislation to provide a safe workplace for employees. The risk of workplace accidents increases if employees are working under the influence of drugs or alcohol. To mitigate that risk, some employers have implemented policies of random drug or alcohol testing. Employees and unions often object to such policies on the basis that random drug or alcohol testing infringes employee privacy interests.

Several months ago, the Supreme Court of Canada ruled that employee privacy interests outweighed employer safety concerns in Communications, Energy and Paperworkers Union, Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 (“Irving”). Irving marks the first time the Supreme Court of Canada has considered workplace drug or alcohol testing. Further, Irving is a departure from some of the earlier appellate court decisions on drug and alcohol testing, which focused on the legality of such policies under human rights legislation, as opposed to privacy considerations.

Family Status Accommodations:

 A legal reviewThe sons and daughters of “baby boomers” are sometimes called “the sandwich generation”. This cohort has the unenviable task of both raising their own families while often also taking on financial and caregiving responsibilities in respect of their aging parents. As a result, it is becoming increasingly common for employers to be faced with scenarios which require its consideration of an employee’s entitlement to accommodation under the ground of “family status”. This enumerated ground under Ontario’s Human Rights Code and under the Canadian Human Rights Act has resulted in recent decisions relating to the balance between work and family obligations and accommodation requirements. The Ontario Employment Standards Act also provides protection to families under its Personal Emergency Leave provisions.

This paper canvasses the existing legislation in respect of “family status” accommodation obligations and provides an overview of a number of recent cases that shed some light on how “family status” accommodation situations are playing out in Canadian workplaces.

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