In this edition you will find:
A. Featured Case: An employer may be required to accommodate an employee’s medical use of marijuana in the workplace where the medical use has been legally authorized and the employee has provided medical documentation confirming that its use would not place the employee or others at an undue risk of harm. [Click here]
B. Recent Decisions of General Interest:
C. Subscriber-Only Manual Supplement for September, 2015 [Click here]
A. Featured Case: An employer may be required to accommodate an employee’s medical use of marijuana in the workplace where the medical use has been legally authorized and the employee has provided medical documentation confirming that its use would not place the employee or others at an undue risk of harm..
In Selkin Logging, 2015 BCHRT 101 (CanLII) (Blasina), the employee alleged that he had been discriminated against when the employer terminated him for smoking marijuana at work. The employer had a zero tolerance policy for using drugs in the workplace.
The evidence established that the employee had been smoking marijuana on an average of six to eight times per shift. His explanation to those around him was that he was a cancer survivor and that he smoked marijuana for pain management. His doctors, while not advocating his use of marijuana, appeared to condone it by stating that he could use it if it worked.
The employee’s work was safety-sensitive, in that he worked in the logging industry and regularly operated a mobile piece of equipment to load and unload logs.
In addition to relying on its zero tolerance policy, the employer cited Regulations 4.20(1) and (2) of the Occupational Health and Safety Regulation, B.C. Reg. 296/197 which state:
(1) A person must not enter or remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.
(2) The employer must not knowingly permit a person to remain at any workplace while the person’s ability to work is affected by alcohol, a drug or other substance so as to endanger the person or anyone else.
The adjudicator noted that the employer had not expressly referred to the Controlled Drugs and Substances Act S.C. 1996, c. 19, or the Regulations pursuant to that Act. The employer did however make the point that the employee did not have the required authorization permitting him to lawfully possess and use marijuana for medical purposes.
The adjudicator found that the employee had established a prima facie case of discrimination, in that he was disabled; that he had used marijuana to manage pain resulting from his disability; and that he was expressly terminated for his use of marijuana. The adjudicator then considered whether the employer had established a bona fide occupation requirement (“BFOR”) defence.
The adjudicator noted that while the Occupational Health and Safety Regulation did not establish an absolute prohibition against substance use in the workplace, it could be said to have established a minimum standard. The employer’s more restrictive zero tolerance policy was seen as creating a margin of safety to ensure that the minimum standard was not crossed. Given the industrial context, the employer was justified in establishing a higher standard than what was set forth in the Health and Safety Regulation.
The zero tolerance policy was found to have met the first two steps of the Meiorin test that is employed to assess an employer’s defence to a prima facie case of discrimination:
Safety is the purpose of the zero tolerance policy, and this is clearly rationally connected to the performance of the job, namely operating heavy equipment in the logging industry. There was no evidence to suggest that the zero tolerance was adopted for any other reason than an honest and good faith belief that it was necessary to a safe working environment in this industry.
In addressing the third step of the test, (i.e. establishing that the policy was reasonably necessary to the accomplishment of a work-related purpose), the adjudicator stated:
In the circumstances of this case, marijuana use for medical purposes presents the cogent circumstance of a substance which is firstly illegal to possess. However, if the individual has the appropriate authorization, the illegality is avoided, and the marijuana can be treated as any other medication; and, like with any other medication, the Occupational Health and Safety Regulation still applies.
The adjudicator commented that strict application of the zero tolerance rule, without consideration of accommodation, may offend the Code in circumstances where the individual may be legitimately using marijuana for medical purposes.
Here however, the employee was in fundamental breach of his obligations to effect an accommodation, in that he failed to inform the employer that he was smoking marijuana in compliance with the law while maintaining personal compliance with the afore-referenced Regulation 4.20.
[The employee’s] smoking of marijuana at work, without legal authorization and without medical authorization confirming that it was safe for him to do so, was an accommodation which his employer could not properly abet in the circumstances. It transgressed the bounds of reasonable accommodation and would have amounted to an undue hardship.
In the circumstances of this case, the application of the zero tolerance policy was a bona fide occupational requirement, and accordingly, the prohibition against discrimination did not apply.
While accommodation never became an issue, the case illustrates the proposition that an employer may be required to accommodate an employee’s use of medical marijuana in the workplace where such use does not amount to an undue hardship.
The Meiorin three-step test that addresses the issue of establishing a bone fide occupational requirement and the factors giving rise to undue hardship in matters of accommodation are considered in sections 14:205 and 14:500 of the Illness and Absenteeism manual and its supplement.
B. Recent Decisions of General Interest
1. An employer was entitled to implement a new and allegedly cumbersome medical form where the information being sought fell within the realm of what an employer would normally be entitled to request.
In Veyance Technoligies Canada Inc., 2015 CanLII 30713 (ON LA) (Jesin), the employer adopted a new medical form that employees were required to have their doctor complete when they were absent on sick leave for three or more days.
The form had been adopted due to a significant increase in absenteeism costs in the preceding months. The form did not seek a diagnosis or information regarding the nature of an injury, but rather sought the date of the injury (or illness), whether it was occupational and, if so whether it had been reported to the WSIB and whether it was recurring. The physician was also asked “to detail the extent of any recommended cognitive or physical limitations, together with the expected duration of those limitations and/or an expected return to work date.”
The union complained that the form was too intrusive and cumbersome. In dismissing the grievance, the arbitrator stated:
I agree that the Employer does have a right to the information sought and that given the increasing cost of STD claims, it is reasonable for the Employer to seek additional information that could encourage earlier returns from absences. I accept the Union’s submission that the form does seem more cumbersome than necessary for simple illnesses such as the flu. However, given that there is no information sought in the form to which the Employer is not entitled, and given that there are no repercussions to the employee where the physician refuses to fill out all or part of the form, it is my conclusion that the Employer is within its management rights in requiring employees to submit the form to their physician for completion.
Issues related to proof of illness and the production of medical certificates are considered in Chapters 6 and 7 of the Illness and Absenteeism manual and its supplement.
2. An Ontario adjudicator has accepted that she had jurisdiction to award damages for a privacy breach based on the tort of intrusion upon seclusion that was first identified in the 2012 Ontario case of Jones v. Tsige.
In R v Ontario Public Service Employees Union (Grievor), 2015 CanLII 19325 (ON GSB) (Briggs), an employee sought damages from the employer for a co-worker having wrongfully accessed her Employment Insurance file during working hours. Damages were sought on the basis of the tort of intrusion upon seclusion that was identified in the 2012 Ontario case of Jones v. Tsige.
In concluding that she had jurisdiction to consider the claim, the adjudicator relied on Government of Alberta, (2012), 221 L.A.C. (4th) 104 (Sims) and Kawartha Pine Ridge District School Board, 2008 CanLII 27810 (ON LA).
In Government of Alberta, arbitrator Sims noted that both parties had accepted that he could consider a breach of the Freedom of Information and Protection of Privacy Act as a matter that could be adjudicated within the principles set out by the Supreme Court of Canada in the Weber and Parry Sound decisions. In Kawartha, arbitrator Luborsky concluded that he was similarly entitled to consider a matter arising out of the Ontario Municipal Freedom of Information and Protection of Privacy Act.
In considering the issue of vicarious liability, the adjudicator found that the employer was not vicariously liable for the actions of its employee, for that employee’s actions were not sufficiently related to the work that she had been authorized to perform. Moreover, the employer had clear and sufficient policies addressing the protection of private information and such policies had been communicated to the affected employees. The employer acted immediately when the wrong was brought to its attention.
Given her decision, it was not necessary that the arbitrator consider the issue of damages.
The tort of intrusion upon seclusion is considered in section 12:304 of the Illness and Absenteeism supplement.
In Ontario Power Generation Inc., 2015 CanLII 22421 (ON LA) (Davie), the employer denied eight days of paid sick benefits on the basis that the employee “had not met the onus placed upon him to demonstrate that he was unable to attend at work because of illness.” The employer’s decision was influenced by its belief that the employee’s absence was at least partly attributable to a confrontation with his supervisor.
The arbitrator, after considering the employee’s medical certificates, stated that “it is not without some hesitation … on the evidence before me, that [the employee] has met the burden imposed upon him to prove that he was unable to attend work due to a medical condition which prevented him from being able to do his job.” The arbitrator’s hesitation was related to the employee’s workplace confrontation with his supervisor (and the potential for discipline) along with the employee’s report that the stress that was keeping him away from work did not really affect his daily activities at home. The arbitrator stated:
… whether an adjustment disorder, stress, anxiety or depression is severe enough to be debilitating or disabling so that the person is unfit for work is [a] medical judgment.
In this case, and in filling out the [Medical Absence Report], a qualified medical practitioner, with whom the [employee] had an established doctor/patient relationship, certified that the employee was presently unfit for any work and specified the reasons why that was so. That was the doctor’s medical judgment. Without any type of follow-up, the [disability] case manager simply ignored that judgment.
The [disability] case manager is not a medical practitioner. In my view, if the case manager had questions or concerns about the [Medical Absence Report] and the medical judgment which it contained, it was incumbent on her to follow-up with the doctor about those concerns. Notwithstanding the apparent conflict between the incapacity set out in the [Medical Absence Report] and the [employee’s] self-report that his activities of daily living were not affected, the [disability] case manager did nothing to follow-up or probe further into why the doctor considered the [employee] unfit for any work.
The case manager’s observations in terms of expected treatment or referral to a psychologist are reasonable and legitimate questions to ask of the medical practitioner who certified the [employee] as unfit for any work. However, her observations about activities of daily living and expected courses of treatment are just that, only observations. They are not a medical judgment that the [employee] did not suffer an illness of such severity that he was unable to work for [a] period of time. In these circumstances, where there is absolutely no follow-up with the doctor, the case manager’s observations and expectations can’t trump the judgment of the medical practitioner who certified that the [employee] was unfit for work.
Given the expansive consent [contained in the Medical Absence Report] it was open to [the case manager] (and the Employer) to ask the doctor what investigations he undertook and the basis for his clinical findings, his thinking in referring the [employee] to EAP counselling as therapeutic treatment, whether further referral to a psychologist was contemplated and/or why that was not immediately done etc. The doctor may have had an explanation and answered the questions or concerns raised in the … case manager’s notes. (For example, the doctor may have said he was awaiting the referral to a psychologist and/ or a psychiatrist as the [employee] saw both within the next 9 months). The [case manager] did not ask any questions of the doctor, did not attempt to obtain any clarification of the treatment plan, or the referral to counselling, but chose instead to simply ignore the doctor’s certification that the [employee] was unfit for any work.
The arbitrator continued:
I must decide whether the [employee’s] absence from work was medically required and whether he is entitled to sick leave benefits. In addressing that issue what the … case manager thought about the quality of the medical evidence presented in support of the absence is in some ways immaterial. Arbitrators must make their own assessment of the medical information having regard to the context and all of the relevant circumstances under which the medical information was obtained and provided.
But I am also not a qualified medical practitioner
The only evidence before me which deals with the [employee’s] fitness for work on the days for which sick leave is claimed is the [Medical Absence Report]. It is the form required by the Employer and in it a medical practitioner, subject to professional obligations, certified that the [employee] was unfit for work because he has adjustment disorder, with anxiety and depressed mood, and was “unable to concentrate, problem solve or socialize presently.” There is no medical evidence to the contrary before me.
On the issue of the workplace conflict involving the employee, the arbitrator stated:
There can be little doubt that the [employee’s] workplace conflict is part and parcel of the reason why he was absent from work on the days for which sick benefits are claimed. That fact alone however is not sufficient to detract from the probative value of the medical certification found in the [Medical Absence Report]. The fact that workplace issues and potential discipline caused or contributed to the depressed mood, stress and anxiety does not mean that the illness and the symptoms are not bona fide or incapacitating.
The grievance was allowed.
A checklist of factors to review when considering the sufficiency of an employee’s medical certificate is set forth in section 7:800 of the Illness and Absenteeism manual, while an employer’s right to question a doctor’s medical certificate is considered in sections 7:400 and 7:500 of that manual and supplement. The issue of whether stress amounts to a disability is considered in section 2:300 of that material.
In Leamington District Memorial Hospital, 2015 CanLII 45434 (ON LA) (Rayner), the employee had been terminated because she had allegedly misrepresented the level of her disability, with the contention being that she had made a false claim for disability benefits.
The employer had commissioned video surveillance after it was reported that the employee had been seen riding her bicycle. The employer believed that such activity was contrary to the employee’s reported limitations. Her doctor testified at the hearing that her movements on the surveillance video were inconsistent with her presentation at her office. The arbitrator rejected the union’s suggested explanations as being improbable, and he found that the employee had “exaggerated her symptoms and overstated her limitations.”
The arbitrator accepted that the following elements needed to be present in order to establish an abuse of sick leave:
1. fabrication of the reasons for absence and a failure to attend work when the employee could have attended;
2. where fraud or dishonesty is alleged, the onus is on the person making the allegation to prove on the basis of clear and cogent evidence that there was an intention to mislead;
3. employees are obligated to be honest with their employers with respect to disability claims and that dishonesty in such circumstances will trigger a disciplinary response; and
4. the fundamental issue is not whether the employee has a disability but whether he or she was honest in her responses with respect to the claim of disability.
Here, the employee’s exaggeration of her symptoms, and her doctor’s opinion, following his review of the surveillance video, that the employee could have performed some modified duties, justified a disciplinary response. The arbitrator noted that this was not a case where the injury was feigned but rather one where the symptoms were exaggerated. Considering all of the mitigating factors, the arbitrator ordered that the employee be reinstated without compensation. This represented a loss of 12 months of earnings.
The issue of discipline for blameworthy absenteeism is considered in section 17:200 of the Illness and Absenteeism manual and its supplement.
5. The Court of Queen’s Bench of Alberta has overturned a Human Rights Tribunal decision that had found that an employee’s broken hand and chronic headaches constituted disabilities under the Alberta Human Rights Act.
In Syncrude Canada Ltd, 2015 ABQB 237 (CanLII), the Court allowed an employer’s appeal of a 2013 Tribunal decision that had decided that an employee was disabled by reason of chronic headaches and a broken arm.
In allowing the appeal pursuant to section 37 of the Alberta Human Rights Act, the Court stated that the Tribunal committed a reviewable error when it failed to draw an adverse inference against the employee for not having called his treating physician as a witness. The Court accepted that it is incumbent on a person claiming a disability to call objective evidence which allows a trier of fact to define what disability means for that particular claimant and the resultant vocational impact of the person’s condition. It relied on a decision of that Court in SMB v LMB 2006 ABQB 141 where the Court addressed the term “disability” and the need to call expert evidence:
There is no magic in the term “disability.” It is meaningless, in a legal sense, unless supported by medical evidence which allows the Court to determine its legal significance in the context of a particular claimant. The term “disability” is extremely broad. Disabilities can range from very mild to moderate to extremely debilitating. Disabilities can increase or decrease over time, and some disabilities are amenable to medical treatment whereas others are not. Moreover, medical disabilities give rise to differing levels of vocational impact, with some disabilities having virtually no impact whereas others can have a profound impact on an individual’s ability to earn an income. In other words, there are multiple variables associated with the concept of disability, which variables must be supported by objective evidence in order to define the nature and vocational impact of it.
A disability may or may not be obvious. For example, the Court may easily deduce that a disability exists for someone who has undergone an amputation. In this case, the alleged disabilities are not so easily verified; hence the need for objective confirmatory evidence. Thus, it is incumbent on anyone alleging a disability to lead medical evidence to establish the pathology of the disability and what vocational impact, if any, has resulted from it. Absent such evidence, a trial judge is faced with an evidentiary vacuum which cannot amount to proof, on a balance of probabilities, of a disability or a vocational impact from it.
The Court also found that the Tribunal erred when it concluded the employee’s failure to call the necessary medical evidence was not overly significant, for the doctor’s evidence was equally available to both parties and could have been adduced by having the employer call the doctor as its witness. That conclusion constituted a reviewable error, for it shifted the onus from the employee having to prove a prima facie case of discrimination to the employer having to prove that the employee did not suffer prima facie discrimination.
In addition, the Tribunal found that the employee had established a prima facie case that he was terminated on the basis of a perceived disability. The Court considered that to have been an unreasonable conclusion and a reviewable error, for the employee “had provided no evidence of any linkage or continuity between his termination and a perceived disability.”
The Tribunal’s decision is referenced in sections 14:205, 14:700 and 17:302 of the Illness and Absenteeism supplement. It had also been reviewed in the January 2014 edition of the Illness and Absenteeism newsletter.
The September update of the Manual Supplement has now been posted on line. The 300 plus page supplement is available only to subscribers of the Illness and Absenteeism manual. It can be accessed at IllnessandAbsenteeism.com using the subscriber’s email and assigned password.