Sherrard Kuzz - 2016 Beneplan HR Workshop - Employment Law 101 and Marijuana in the Workplace

Employment Law OverviewNavigating the Employer-Employee Relationship

Keith Burkhardt and Andrew EbejerBeneplan HR, Benefits & Law WorkshopNovember 16, 2016

250 Yonge Street Suite 3300

Toronto, Ontario M5B 2L7

Tel 416.603.0700

Fax 416.603.6035

24 Hour 416.420.0738

www.sherrardkuzz.com

Sherrard Kuzz LLP, Employment & Labour LawyersBeneplan HR, Benefits & Law Workshop – November 16, 2016Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com 2

Agenda

Employment Law 101Hiring and onboarding processEmployment standards tips, traps and hurdlesConsiderations on termination of employment

Top Benefit Plan MistakesManaging Medical Marijuana in the

Workplace


Employment Law 101


Finding Good Workers

Human Rights Code protects candidates with respect to:Advertisements, application

forms, interviews, hiring decision, background checks, etc.

Balance to be struck between wants and needs versus exposure to claim


Employment Contracts

One of the best ‘security blankets’ for your business

Maximizes flexibilityPersonnel decisions need not turn on cost

Form of business insurance with highest ROIMust have 3 elements to be enforceable

Offer, acceptance & considerationSigned prior to commencing employment or other

consideration given

Sherrard Kuzz LLP, Employment & Labour LawyersBeneplan HR, Benefits & Law Workshop – November 16, 2016Main 416.603.0700 / 24 Hour 416.420.0738 / www.sherrardkuzz.com

Employment Standards Legislation

Provincial: Ontario Employment Standards Act, 2000 (“ESA”)

Sets floor for employee entitlementsCannot contract out of minimum obligations

under employment standards legislationCan agree to provide

employee with more than minimum entitlements

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Summary of ESA Minimums

Maximum hours of work:8 hours per day (or “regular work day”) or48 hours per week

Overtime Pay1.5 times hourly rate for each hour worked over 44

hours in a weekNo daily overtime Non-managerial salaried employees are also

entitled to overtime pay

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Summary of ESA Minimums

Nine Public Holidays mandated by the ESA:New Year's Day, Family Day, Good Friday, Victoria

Day, Canada Day, Labour Day, Thanksgiving Day, Christmas Day, Boxing Day

Civic Holiday?Vacation pay and vacation time are separate

entitlementsVacation pay of at least 4% of gross wagesTwo weeks’ vacation time per year


Ending an Employment Relationship

With causeMisconduct-related termination

Require fair and impartial investigationPerformance-related termination

Document, document documentWithout cause

Notice of termination (or pay in lieu)Severance payEmployment standards legislation or common law

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ESA Notice of Termination

Notice of termination or pay in lieu

Benefits must continue for ESA notice periodVacation pay owed on termination payMass terminations come with greater

obligations, when >50 employees

Service Notice<3 months 0 weeks

3 months to <1 year 1 week

1 year to <3 years 2 weeks

3+ years 1 week/year of service; maximum 8 weeks


ESA Severance Pay

Criteria:Five or more years of service; andPayroll in Ontario of at least $2.5M or

termination more than 50 employees in six month period

1 week/year of service, pro-rated for incomplete years – maximum 26 weeks

Cannot provide as “working notice”

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Common Law Entitlements

Common Law notice period is intended to provide bridge to reasonably comparable employment

Courts consider several factors including:Employee’s age, position, length of service, salary,

general economic factors, etc.“Rule of thumb”

4 weeks’ pay per year of service, moved up or down for specific conditions


Designing Severance Package

Must exceed Employment Standards to request a Release

Working notice or pay in lieu of noticeCombinationLump sum or salary continuance

ExtrasLetter confirming employmentOutplacement services


Top Benefit Plan Mistakes


Altering Benefits

Avoiding constructive dismissal (non-union)Most important factor is contract languageIntroducing benefits: introduce written

employment contractViolating collective agreement obligations

(union)Does the collective agreement allow you to

unilaterally change benefits?


ONA v Mount Sinai Hospital (2010)

Grievor’s husband suffered from ALS, required private nursing care

Hospital changed insurance providers from Sun Life Financial to Great-West Life

Great-West Life plan contained a limitation (not found in Sun Life plan) for chronic or custodial care

Held: Hospital ordered to make up deficiency resulting from change in level of benefits


Benefits Fraud

In North America, between 2-10% of healthcare dollars are lost to fraud

What to do when you discover an employee is committing benefits fraud?

Benefits fraud may constitute just cause, but cannot rely on insurer’s allegations – need to conduct your own investigation


Benefits After Termination

Statutory vs. common law obligationsExtending benefits – but are you able to do

this? The plan may require members to be “active employees”

Requirement to provide information about converting group benefits to individual plan

Strategic use of working notice to avoid gaps in coverage


Egan v Alcatel Canada Inc (2006)

Plaintiff became totally disabled with a depressive disorder during the statutory notice period

Damages for wrongful dismissal are taxable, but STD/LTD benefits are payable on a non-taxable basis = gross up


Egan v Alcatel Canada Inc (2006)

Where an employee would otherwise have qualified for disability benefits during the reasonable notice period, but the application is denied on the basis that coverage was wrongfully discontinued by the employer, the employer must be liable for the value of the disability benefits that would otherwise have been payable


Managing Medical Marijuana in the Workplace


Medical Marijuana at Work

Employer’s concernsProductivity/performanceImpact on co-workers

Health and safety Coworker relations

Brand/reputational damage Client/customer interactions Public image (uniform, vehicles)


Health and Safety Considerations

Accommodation ≠ allowing employee to carry out duties while impaired

OHSAObligation to take every precaution reasonable

in circumstances to protect health and safety of workers Identify hazards if employee working under

influence of MMEmployee duty to report hazards


Duty to Accommodate

Same accommodation analysis as any other medically prescribed drug

When is accommodation analysis triggered?Employee reports Medical Marijuana useEmployer becomes aware indirectly


Get the Information You Need

Manage like any other illness that requires accommodationRequest medical documentation

Is there a disability? Alternative treatment options? Dosage and frequency of use? Expected timeframe usage required? Usage necessary at work?


Accommodating Smoking MM

Designated areaAvoid second hand smokeTobacco laws do not extend to MM

During scheduled breaks or meal periodsRestrict smoking while:

in uniformin public viewaround/in company vehicles


Workplace Policies

Drug and alcohol policy should address impairment from:illegal drugs; andprescription medications

Prohibit employee in safety-sensitive position from working while impaired

Require disclosure of prescription drugs that may impair ability to perform work safely


Workplace Policies

Set out process for obtaining additional medical information to facilitate accommodationConsider IME

Require employee (and union if applicable) to participate in accommodation process

Identify restrictions on use of medical marijuana in the workplace


Workplace Policies

Restrict employees from sharing MMIndicate where MM should be stored (e.g.

sealed container, locker, etc.)Identify consequences in the event of a breach

of the policy (i.e. discipline)Including consequence of failing to report


Drug & Alcohol Testing

Engage in testing where appropriateReasonable causePost-incidentNear miss


Consequences of Misuse

Should not be treated lightlyParticularly where safety concerns

Response will varyCould result in termination of employment for

cause


Next Steps

Review hiring documents and processesDetermine content and validity of employment

contractsEnsure compliance with ESA minimumsAcknowledge and address benefit plan issuesAddress disabilities while maintaining a safe

workplaceReview drug and alcohol policies


250 Yonge Street, Suite 3300Toronto, Ontario, Canada M5B 2L7

416.603.0700 Phone416.420.0738 24 Hour

416.603.6035 Faxwww.sherrardkuzz.com

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The information contained in this presentation/article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This presentation/article is current as of November 2016 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated. Information about the law is checked for legal accuracy as at the date the presentation/article is prepared, but may become outdated as laws or policies change. For clarification or for legal or other professional assistance please contact Sherrard Kuzz LLP (or other counsel).

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