Canada has long been a global beacon for the recognition and advancement of human rights. Consistent with this reputation, the Ontario Human Rights Commission (the “OHRC”) has updated some of its policies in the past few months for the purposes of clarification, expansion of rights, and the incorporation of new developments and research. These two important policies warrant analysis through the lens of employment law.
On September 29, 2016, the OHRC launched the OHRC’s Policy on Ableism and Discrimination based on Disability (the “Disability Policy”), which updates a policy that the OHRC first introduced back in 2001. Since 2001, there have been a plethora of changes in jurisprudence, social science research, and international human rights standards that, until now, had yet to be consolidated in Ontario under one policy. Among other sectors, the Disability Policy has important ramifications for Ontario workplaces.
For one, the Disability Policy clarified that the definition of “disability” is a broad and constantly evolving term under section 10 of the Ontario Human Rights Code (the “Code”). Certain conditions are newly recognized as disabilities, such as multiple chemical sensitivities and food-related anaphylaxis. Further, the Disability Policy clarifies what medical information an employer may properly request from an employee when the latter makes an accommodation request, and further imposes on the employer a ‘duty to inquire’ if they suspect someone may need an accommodation based on a disability even if that person has yet to make a specific request. Employees seeking a disability accommodation should obtain medical information that includes the following features:
· That the person has a disability;
· The limitations or needs associated with the disability;
· Whether the person can perform the essential duties or requirements of the job with or without accommodation;
· The type of accommodation(s) that may be needed to allow the person to fulfill the essential duties or requirements of the job; and
· Regular updates about when the person expects to come back to work if they are on leave.
The Disability Policy also defines “ableism” as a belief system analogous to racism, sexism or ageism, which sees persons with disabilities as being less worthy of respect and consideration, less able to contribute and participate, or of less inherent value than others. When ableism turns into discrimination, Ontarians run the risk of violating the Code. We ought to be cautious of avoiding this underlying attitude when managing relationships around the workplace or when designing and implementing policies and procedures. The Disability Policy recounts the experiences of individuals who face discrimination based on disability combined with other grounds protected by the Code, such as age, race, or sexual orientation.
Shortly after the launch of the updated Disability Policy, on October 13, 2016, the OHRC launched the updated Policy on Drug and Alcohol Testing (the “Testing Policy”). Of course, employers have a right and a duty to ensure that their workplaces are safe from the harmful effects of drug and alcohol use. However, since addictions to drugs or alcohol are considered “disabilities” under the Code, drug and alcohol testing in workplaces creates potential human rights consequences for individuals dealing with addictions.
The Testing Policy states that discrimination will be established where a positive test result (for either drugs or alcohol) leads to negative consequences for a person based on their addiction or perceived addiction. Some examples of negative consequences include:
· Breaching employee confidentiality during the testing process;
· Imposing automatic discipline; or
· Or failing to accommodate up to the point of undue hardship.
However, even if drug and alcohol testing policies and programs are found to be discriminatory against people based on addictions or perceived addictions, they may nonetheless be justifiable if an employer can demonstrate that the workplace rule, policy, standard or criteria relied upon is a “bona fide occupational requirement” (“BFOR”). In British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 SCR 3, the Supreme Court of Canada established a three-part test for determining that what seems like a discriminatory standard is instead a BFOR. In order to prove that the standard is a BFOR, the employer must demonstrate:
- That the employer adopted the standard for a purpose rationally connected to the performance of the job;
- That the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
- That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.
The primary purpose of conducting drug and alcohol testing should be to measure impairment, as opposed to deterring drug or alcohol use or monitoring moral values among employees. The OHRC produces a useful situation chart, which highlights eight different drug or alcohol testing scenarios including testing before a job offer, random testing and reasonable grounds/post-incident testing. In each situation, the OHRC indicates whether testing would be permissible and what human rights or privacy considerations would be relevant.
Based on the foregoing, both the Disability Policy and the Testing Policy provide timely guidance on avoiding human rights issues in the workplace. Our team at Monkhouse Law has the experience and the expertise to navigate you through the potential human rights issues you may be experiencing in the workplace. Contact us today.
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