February

The protections afforded by human rights legislation to employees with substance dependency issues creates a unique challenge for employers that must balance employee rights with workplace safety issues, and both courts and administrative bodies continue to wrestle with new issues in this area.

The Alberta Court of Appeal released its decision in Stewart v. Elk Valley Coal Corporation. Stewart has widely been considered good news for employers, particularly those who rely on policies that require employee disclosure of drug use and dependency problems.

In Stewart, the Court upheld a finding that an employer had not discriminated against an employee who had a cocaine dependency. A decision like this emphasizes the importance of ensuring that substance use policies provide clear and appropriate steps to accommodate those with various types of substance use issues.

Over the years, workplaces all over Canada have seen many different issues, in particular regarding smoking and narcotic prescription drugs.

The most recent issue workplaces are struggling with is medicinal marihuana. Marihuana is scarcely viewed as a medicine, which is the biggest issue. It's the employer's responsibility to accommodate both the user and the rest of the employees in compliance with the Human Rights Code. The Code states that disabled employees must be accommodated in the workplace.

It may seem troublesome, but in the end, if you were to put yourself in the shoes of the employee using the medicinal marihuana, it means a lot, it's also the law.

Claims brought against employers under the FCRA arising out of one aspect or another of employers' background investigation procedures have been the litigation de jure recently. Many of these lawsuits have resulted in multi-million dollar settlements.

There is a rather pernicious new development in this area. Opportunistic faux job applicants - who have no intention of taking employment with the targeted employers - are completing and submitting employment applications solely to position themselves as the named plaintiff in class action litigation and secure a windfall settlement or litigation recovery.

The key take away is that there is a new breed of individuals who are trolling the internet in search of employment applications that arguably fail to comply with the FCRA's notice and disclosure requirements. Prudence should compel you to re-examine your disclosure forms and ensure fastidious compliance with the FCRA.