HR Heartbeat: Drug testing on the TTC, job searching on company time, and…

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Welcome to HR Heartbeat, where we give you a rundown of the week's top employment law stories. Stay on the pulse of current trends impacting your business, plus get up-to-the-minute commentary on all things HR and legal.

Is drug testing your employees justified? The TTC thinks so!

In a recent case, an Ontario arbitrator upheld the TTC's decision to ask for and enforce a drug and alcohol test for one of its workers when they were found asleep in their vehicle.

The worker, a bus operator [a safety-sensitive role], parked their vehicle on the side of a residential street, had their lights turned off, and the seat reclined when they were found by a supervisor.

The supervisor noted the bus driver had a dishevelled appearance and displayed signs of fatigue, which led them to believe the driver could be potentially impaired.

The TTC has a Fitness for Duty Policy, which covers drug and alcohol testing when reasonable grounds for impairment exist, which the supervisor followed based on their observations.

After consulting with an assistant manager for a second opinion as required by the policy, the bus driver was taken for testing. While the breathalyzer test came back negative, a saliva test indicated cannabis use—this led to the worker being terminated for policy violation.

As the bus driver was part of a union, they contested the decision, arguing that the bus driver was merely fatigued and not impaired. They also cited procedural lapses, such as allowing the driver to drive home after testing. However, the arbitrator determined the supervisors acted in good faith with reasonable cause based on the worker's behaviour and appearance. Failing to enforce the safe transport rule contained in their policy was deemed a separate issue that didn't undermine the validity of the test.

This ruling highlights the importance of having a clear and comprehensive policy for assessing employee fitness for duty to guide decisions in safety-sensitive roles. Employers should ensure their policies include clear guidelines, templates for documenting observations, and safeguards to avoid arbitrary testing.

Can you ask for more info on medical absences?

"John cannot attend work for medical reasons." Sound familiar?

Many employers receive 'medical notes' like this, which begs the question, can you ask for more information?

The answer is usually yes.

Across Canada, human rights legislation requires you to accommodate employees with disabilities up to the point of undue hardship.

However, accommodation is a two-way street—employees also need to do their part by giving their employers all the information they need to support their accommodation requests.

In a recent case out of British Columbia, an employer dismissed an employee for failing to provide enough medical information to justify their two-month absence from work. The arbitrator ruled that while employees have privacy rights, they risk accommodation failure if they don't provide adequate medical information to their employers.

This reasoning can be applied across multiple jurisdictions.

For example, the Ontario Human Rights Commission outlines that employees should provide details like the nature of their disability, associated limitations, the type of accommodations needed, and regular updates. And in rare cases, even a diagnosis might be required.

In unionized environments, employers can request information on the nature of the illness, prognosis, and limitations related to job duties.

Providing medical information helps create adequate accommodations and ensures the process is fair.

Employers should also keep employment standards legislation in mind when requesting medical notes. For instance, in Ontario, you can ask for "reasonable evidence" for absences under the Employment Standards Act. However, proposed changes may limit requests for certain leaves.

When in doubt, remember accommodation is about collaboration. The more precise the information shared; the better employers can meet their obligations while respecting their employees' rights. And if you have more questions about navigating complex cases like this in your workplace, it's best practice to speak with an employment relations expert for further guidance.

Job searching on company time?

It can be a tricky mix of legal and practical challenges when your employees use company resources to job search or work on side hustles…

As a recent case in Ontario shows, it's essential to have clear policies and carefully enforce them to effectively manage situations like these.

An employee was terminated for cause for sending a high number of confidential company resources to their personal email. The court agreed that the employee violated the terms of their employers' policies, outlining confidentiality and professional ethics, justifying their termination.

The court's decision reinforces the importance of having well-communicated contractual obligations. It emphasizes the need for robust workplace policies to set expectations and prevent misuse of company resources. Your policies should clarify that employees have no reasonable expectations of privacy when using company equipment.

It may amount to time theft if employees search for jobs during company hours. Progressive discipline is often the first step in handling this, especially if you don't have clear policies. Always document misconduct, reference applicable policies, and outline future expectations in writing.

Monitoring employee use of IT systems can detect violations early but ensure they're reasonable and not overly intrusive. Employers should clearly state monitoring practices in their policies to avoid privacy concerns.

Responsibilities don't lie on just employers; your employees also have a common-law duty to act in good faith and stay dedicated to their employer's interest without competing with them. While unrelated side hustles may not breach this duty, clear policies help define what constitutes a conflict of interest.

That's it for today! Come back next time for more HR news so you stay ahead of major employment law changes.