The Perils of Bias in Workplace GenAI
In the rapidly evolving landscape of tech, Generative Artificial Intelligence (GenAI) is becoming a central player, especially in sectors like customer service, content creation, and…
For many of us who are parents, September feels like the real New Year. Workplace issues can arise with respect to shifting childcare obligations, as kids transition from summer schedules to school schedules. Employers may be met with requests to accommodate worker childcare obligations or requests for time off and should be prepared with respect to how to handle these issues both practically and legally.
I’ve blogged about family status accommodation in the past – see also my post entitled When Employees Fail to Engage in the Accommodation Process. As people delay having children until later in life and once they have more established careers, employers are more likely to be met with requests for flexibility, accommodation and time off from key personnel or managers. Our aging population also means that the demands on many of us, to look after both parents and children, are increasing.
How should an employer respond if an employee suddenly asserts that their normal work hours discriminate against them on the basis as their status as a parent? What if an employee suddenly requests previously unscheduled time off, asserting parental obligations? Here are some of the legal requirements.
Requests for Leaves and Time Off
Under the Employment Standards Act employers who have more than 50 employees are required to provide employees with personal emergency leave of up to 10 unpaid days for illness, injury, medical emergency or urgent matter relating to children and other dependant family members. The expected changes to the Employment Standards Act under Bill 148 are expected to make this leave available to all employees, not just those in workplaces of 50 or more. Additionally, the first 2 days of the leave will be paid days. Bill 148 would also extend the length of unpaid family medical leaves, which would be increased from the current eight weeks in a 26-week period, to 27 weeks in 52 week period. For more information on these changes see my post entitled Bill 148 Fair Workplaces Changes: Scheduling, Leaves and Vacation.
Discriminating Against Parents
Family status is a protected ground under the Ontario Human Rights Code. Family status is defined as “the status of being in a parent and child relationship.” Employees may, for example, assert that their work schedule or location discriminates against them on the basis of family status where they encounter difficulty meeting their family obligations because of the requirements of their job.
As with other protected grounds employers have a duty to accommodate, up to the point of undue hardship. What exactly this means in the context of childcare has been a moving target in Canada and as with other forms of accommodation, accommodation of family status will look different, depending on the context.
The Legal Test
The current legal test is set out in the Misetich v Value Villages Stores case. In short, the adjudicator required the employee to establish that he or she is a member of a group protected under the human rights code, has experienced adverse treatment, and that the ground of discrimination was a factor in the adverse treatment (paragraph 43). The onus then shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship (paragraph 57).
The case confirmed that the family status test is similar to the discrimination tests set out for other protected grounds. For further details, see my past blog post.
Practical Tips for Accommodating Family Status
Family status accommodation remains a relatively new area of discrimination under the Human Rights Code, and while employers continue to struggle with where is the legal, practical and morale line to draw, the one certainty is that employer have no choice but to engage in meaningful conversation, to determine whether the accommodation is required. Blanket denials for business needs are no longer an option.
The first Monday of September is Labour Day (Labor Day to our friends in the States). In Canada, this is a provincial statutory holiday, celebrated in all of our Provinces and Territories. Most businesses will be closed, with the exception of business that fall under provincial retail business holiday acts, such as tourist destinations and many restaurants.
Both in the US and Canada, Labour Day is a day inspired by union efforts to improve the rights of workers. For our US readers interested in learning more about the origins of Labour Day in Canada, I recommend this Canada’s History article.
Read more information about Overtime and Statutory Holidays.
This spring the largest penalty to date was issued under Ontario’s Personal Health Information Protection Act (“PHIPA”). A social work student was convicted of accessing personal health information without authorization, and ordered pay a $20,000 fine and a $5,000 victim fine surcharge after pleading guilty to “willfully accessing the personal health information of five individuals.”
The breach took place in Goderich, Ontario’s prettiest town, where the student was completing a placement with a family health team. The student also admitted that she had accessed the personal health information of 139 individuals, including that of her family, friends, local politicians and the staff of the clinic. No doubt she had an interesting time doing so, but this fine sends a strong message that employees must keep their curiosity in check. Previous fines include two in the amount of $2,505, which were issued 2016 to two hospital workers in connection with breaches of former Toronto Mayor Rob Ford’s health information during his cancer treatment.
In our digitizing and digitized workplace privacy is always a hot topic, but privacy laws in Canada remain spotty. Currently broad privacy legislation only applies to the federal sector workplaces (banks, tele-com, shipping, mail etc.) via the Personal Information Protection and Electronic Documents Act and the Privacy Act. In Ontario, health information is governed by PHIPA, but most other workplace related information is not subject to any regulation.
Despite the lack of clear legislative guidance in many arenas, employers should have privacy policies in place with respect to private employee and customer information. Policies should also specify consequences in the case of a privacy breach, or inappropriate employee snooping. Remember, there is now a common law tort of invasion of privacy, “intrusion upon seclusion,” and clear policies and appropriate employee training will go a long way in protecting employers from the potential for vicarious liability.
As always, a balance must be struck between an organization’s need to collect, use and disclose personal information and an individual’s right to privacy.
Examples of good practices are:
Millennial employees, who have grown up with social media, may have a different conception of privacy than that expected by the culture of the organization. Clear communication, and documentation, around what is expected is crucial.
At SpringLaw, we regularly advise on privacy, technology and how to make workplaces work for everybody. If you think your workplace might need a privacy overhaul, or you just need some general advice, give us a call.
Marijuana has been legal for medical use since 1999. As you undoubtedly know, the Trudeau government has tabled legislation that would expand legal use to the recreational sphere. Employers need to be prepared for how the potential legalization of recreational marijuana will impact the workplace.
Background on the Bill
Here’s a little background on the Liberal Bill – Bill C-45, the Cannabis Act, was introduced by Minister of Justice Jody Wilson-Raybould (she’s from Vancouver) in April. In June it passed second reading and was referred to the Standing Committee on Health. The Committee is expected to begin hearings on the Bill in September. Anyone wishing to participate in the process can make a submission to the Committee.
The Bill would allow for legal possession of up to 30 grams of cannabis by those 18 and older. Individuals will also be allowed to grow up to four cannabis plants in their homes, though these must be under one metre tall. Because sale and distribution of marijuana will now be regulated, anything to do with illegal marijuana will remain illegal.
Impact in the Workplace
So what will this all mean for the workplace? Many employers will already be familiar with the need to accommodate the use of medical marijuana in the workplace, where an employee uses it to treat an illness or injury falling under the definition of disability in the Human Rights Code.
An addiction to marijuana can also fall under the definition of disability and require accommodation. This does not mean that employers must permit employees to be impaired by marijuana while at work – accommodation must always be balanced with safety, and is required only up to the point of undue hardship.
Practically speaking, employers need to be prepared to handle the presence of marijuana in the workplace. Employers should make themselves aware of the signs of marijuana impairment. Employees have never had the right to work while impaired, and the Cannabis Act won’t change that. Workplace policies may need to be amended. For example if a workplace policy prohibits employees from drinking alcohol on the job or at lunch, it will also need to prohibit them from using cannabis during work hours or on breaks. On the flip side, policies that prohibit recreational marijuana use, due to its illegality, will need to be updated.
Monitoring Marijuana in the Workplace
Marijuana impairment can be difficult to detect, especially with the rise in popularity of odourless edibles.
Along with Bill C-45 came Bill C-46, which would change impaired driving laws in preparation for the legalization of marijuana. Testing for impairment by marijuana is tricky, as drugs metabolize differently from alcohol, and can remain detectable in the body long after the effects have passed. This is one of the reasons why the caselaw tends to treat the detection of drug and alcohol impairment differently. Bill C-46 would give peace officers the power to demand a bodily sample from drivers suspected of impairment.
I will address the nexus between recent caselaw on random drug testing in the workplace and the legalization of marijuana in a later post, as it’s sure to be a hot topic post July 1, 2018, the date Trudeau would like the new legislation to be in place.
Over the last several weeks I’ve laid out some of the changes that will affect workplaces governed by the Employment Standards Act, 2000 (ESA). In this post I’ll touch on how Bill 148 proposes to change the legislation that governs the business of unions, the Labour Relations Act, 1995 (LRA). Like the proposed changes to the ESA, the overall tone of these changes is pro employee/union.
Certification Process
Many of the changes involve the certification process, which is the process by which a workplace or group of workers becomes unionized. Certifications can be a shifty business, and historically both employers and employee organizers have been known to play dirty, or skirt the rules. The proposed amendments aim to combat some of these issues. Here are some of the proposed changes:
Discipline/Discharge Freeze
Similar to the freeze during the negotiation of the first contract, employers will also not be able to discipline or discharge (without just cause) any unionized employee between the date at which the employees are in a legal strike or lockout position and the execution of the new collective agreement. Most collective agreements contain “just cause” protection, that does not allow employers to terminate employees but for “just cause.” This change extends that protection to periods where there is no collective agreement in force.
Successor Rights in Building Services
An interesting change relates to the extension of successor rights to instances where building services are re-tendered. Building services are services such as cleaning, food and security services. The change will make it easier for unions to retain bargaining units when work is re-tendered and a new provider chosen. For example, if unionized staff provide the security services at a building, when the security services contract is retendered any existing bargaining rights and collective agreements applying to the previous security staff will transfer to the new provider of those services. This could temper service providers, who do not have unionized employees from bidding on work in buildings with existing union relationships.
Structure of Bargaining Units
The proposed legislation would allow the OLRB to change the structure of bargaining units where one employer has multiple bargaining units, all within the same union.
In order for the OLRB to review and potentially consolidate bargaining units, the following conditions must be met:
Upon application, and if the above conditions are met, the OLRB would have the power to consolidate bargaining units, amend the description of the bargaining unit, direct which collective agreement will apply, with or without modification, and amend the collective agreement in order to ensure the consolidation works in practice.
The impact of this change will likely be that the OLRB will more easily certify small and fragmented bargaining units, which previously would not have been appropriate candidates for certification.
Notably, these new powers would not apply to the construction industry.
Return to Work from Strike
This proposed change would remove the six-month limitation under which striking employees can apply to return to work. Employers will be required to reinstate employees at the conclusion of lawful strike or lockout and employees will have access to arbitration if there is any refusal to reinstate an employee.
Maximum fines under the LRA would increase to $5,000 for individuals and $100,000 for organizations (up from the current $2,000 for individuals and $25,000 for organizations).
This concludes my series on Bill 148 for now. As always we will keep you posted as to what happens through the public consultation process and when the legislature gets back to work after the summer break.