Are you Hiring your Next Problem/Injury? OEA Conference

Transcription

1 Are you Hiring your Next Problem/Injury? OEA Conference By: Ian Pickard March 25, 2013

2 Pre-Employment Screening: Legal considerations

3 Overview 1. Criminal background checks 1. The law: planning and obtaining a background check 2. Dealing with the results of a background check 3. Background checks of employees 2. Employment medical screening 3. Drug and alcohol testing 1. Pre-employment drug testing 2. Random drug and alcohol testing: unions vs. non-unions 3. Reasonable cause: drug and alcohol testing 4. Pre-employment screening considerations

4 Criminal Background Checks: The Law Inquiries about criminal record or convictions are discouraged unless related to job duties Some jurisdictions have human rights laws that limit an employer s ability to discriminate based on the existence of a criminal record. Pardoned and unpardoned offences protected: British Columbia, Prince Edward Island, Quebec Pardoned offences protected: Ontario, Federal employers No explicit protection: Alberta, Manitoba, New Brunswick, Newfoundland, Nova Scotia, Saskatchewan

5 Criminal Background Checks: The Law Where protection legislation exists, it may be that: Being charged with a criminal offence is insufficient to justify denying employment: de Pelham v. Mytrak Health Systems, 2009 HRTO 172 Withdrawn charges are also insufficient for denying employment: Tadros v. Peel Regional Police Service, 2008 ONCA 775

6 Planning a Criminal Background Check Seek legal advice to ensure compliance with human rights legislation. Consider whether a clear criminal record is a bona fide occupational requirement for the position in question.

7 Planning a Criminal Background Check Obtain the candidate's consent to perform a check and explain that this may require fingerprinting for detailed information about his or her criminal record history. Remember that the more intrusive police record checks (rather than criminal record checks ) should be conducted especially sparingly.

8 Obtaining the Background Check Traditionally, background checks could be sought by simply submitting a request to a Canadian Police Information Centre ("CPIC") agency and waiting a few days. Per the RCMP's directive and policy statement issued at the end of 2009, employers can no longer obtain clear verification as to whether a prospective employee has a record unless the employee consents to fingerprinting.

9 Obtaining the Background Check Background checks now take more time. Always start your search early to allow enough time to obtain search results before the hiring decision needs to be finalized. As a result of the requirement for the candidate to submit fingerprints for any meaningful results to be released, employers are facing delayed processing times for detailed results to be released to them approximately 120 days.

10 Managing the Results: Positive Results If the background check retrieves positive results and you want to hire the candidate, contact legal counsel to: Properly structure conditional offers of employment to deal with positive criminal record history results. Obtain advice on appropriately structuring probationary periods to allow flexibility to deal with positive criminal record history results.

11 Managing the Results: Negative Consult legal counsel to ensure it is legal to deny employment to a candidate based on the criminal record check Remember: the less meaningful connection between a negative result and the work to be performed, the greater the risk that the candidate may be able to complain in some form

12 Denying Employment based on Criminal Record In order to discriminate on the basis of an employee or prospective employee s criminal record, a clear criminal record must be a bona fide occupational requirement (BFOR) and meet a three-part test (per Meiron, [1999] 3 SCR 3): there must be a rational connection between the BFOR and the performance of the job; the BFOR must have been established with an honest and good faith belief that it is necessary to fulfil a legitimate workrelated purpose; and the BFOR must be reasonably necessary to meet that purpose (i.e., it is impossible to accommodate the employee without imposing undue hardship upon the employer).

13 Post-hire Criminal Checks In some situations, it is possible to form an offer of employment to be conditional on a criminal record check. For example, the PEI government requires a criminal check post-hiring for some positions to ensure that there is either no record or a record that does not give rise to a reasonable concern regarding the safety of provincial property, employees, or the public served. Employees may also be required to disclose any new convictions immediately so the province can ensure there are no concerns Again, ensure that making such a requirement is necessary and justifiable!

14 Background Checks of Employees If continued criminal record free status is necessary for existing employees, ensure that employees are informed of the requirement for continued disclosure and co-operation with the criminal record check process for the duration of employment. For example, in PEI, employees of the government are informed that a check will be necessary every 3 years.

15 Background Checks of Employees Employers may not always have the right to require ongoing consent to background checks: City of Ottawa v. Ottawa Professional Firefighters Association [2009] O.J. No (Div. Ct). Similarly, the search must be relevant and necessary in PEI.

16 Background Checks of Employees Retain copies of results and notes of discussions with candidates and hired employees relating to their criminal background history - this is both good practice and a requirement under privacy laws. Legal advice should be sought in connection with retention requirements and the duration for retention.

17 Employment Medical Screening Pre-Employment Medical examinations are generally illegal in Canada. Medical exams should be conducted after selection and only if an employee's condition is related to job duties. Offers of employment can be made conditional on successful completion of a medical exam if discrimination based on the results is an acceptable bona fide occupational requirement.

18 Employment Drug/Alcohol Testing Workplace alcohol and drug testing must comply with privacy laws and human rights legislation that typically treats substance abuse and dependence as a disability. Most mandatory testing is allowable only if the employer can justify it as a bona fide occupational requirement. Pre-employment alcohol and drug testing and random drug testing are difficult to justify.

19 Pre-Employment Drug/Alcohol Testing May be permissible for employees being hired into safety-sensitive positions, but failing the test or refusing to take it cannot necessarily result in the withdrawal of an offer of employment. In some cases, the courts have determined that recreational use of drugs such as marijuana does not constitute a disability and thus is not protected by antidiscrimination laws. The Director of Alberta Human Rights and Citizenship Commission and Chaisson v. Kellogg Brown & Root (2007), 289 D.L.R. (4th) 95 (Alta. C.A.); Weyerhaeuser Co. (c.o.b. Trus Joist) v. Ontario (Human Rights Commission) (2007), 279 D.L.R. (4th) 480 (Ont. Div. Ct.).

20 Random Drug and Alcohol Testing Differences in the law have emerged between random drug and alcohol testing between the unionized and non-unionized sectors.

21 Drug and Alcohol Testing: Non-unions In non-union sectors, the use of random alcohol breathalyzer tests have been found legal as they measure present impairment and provide immediate results without infringing privacy laws. However, automatic termination as a result of a positive test result would likely be found to contravene human rights law if the need for accommodation had not first been explored. Random drug testing, however, even for employees in safety-sensitive positions, is not legal. Entrop v. Imperial Oil Ltd. (2000), 50 O.R. (3d) 18 (C.A.).4.

22 Drug and Alcohol Testing: Unions Additional considerations: Random alcohol testing has rarely been upheld, and random drug testing has never been upheld by an arbitrator in Canada as appropriate in a unionized workplace. Random drug testing can generally only be performed in the unionized context as part of a rehabilitative program for employees with a proven drug or alcohol dependency. Imperial Oil Ltd. v. Communications, Energy and Paperworkers Union of Canada, Local 900 (2006), 157 L.A.C. (4th) 225 This may be part of a "last chance" or "return to work" agreement.

23 Reasonable Cause: Drug and Alcohol Testing Where employees occupy safety-sensitive positions, employers usually have the right to require employees to submit to a drug or alcohol test where there is "reasonable cause" to suspect impairment on the job, absent any contrary provision in a policy, contract or collective agreement, etc. United Association, Local 663 v. Mechanical Contractors Association of Sarnia(Drug and Alcohol Policy Grievance), [2008] O.L.A.A. No. 621 (QL) Reasonable cause arises where employee exhibits signs which sufficiently arouse the employer's suspicion of impairment. The test is ordered only as an objective measure of the employer's subjective view of the employee's actions, behaviour or physical characteristics.

24 Reasonable cause: Drug and Alcohol Testing Where an employee fails or refuses to submit to a reasonable cause drug or alcohol test, it may not always be possible to automatically terminate. If a drug or alcohol dependency surfaces, the employer is generally required to accommodate the employee's disability, which could include placing the employee in an alternative nonsafety-sensitive position for a period of time, if one is available.

25 Post-Incident Drug and Alcohol Testing After an accident or dangerous incident has occurred, drug or alcohol testing may be justified where there is reasonable cause to believe that an employee's conduct could have been a contributing factor and that there may have been impairment at the time of the incident. Canadian National Railway Company v. CAW-Canada, [2000] C.L.A.D. No. 465 (QL) However, it may not always be appropriate to immediately terminate employment when a postincident test result is positive.

26 Drug and Alcohol Testing: Considerations Employers contemplating the adoption of testing as part of a drug and alcohol policy must demonstrate that testing is necessary as one facet of a larger process of preventing drug or alcohol abuse in the workplace. Adjudicators will continue to be sceptical about any random drug testing that does not indicate immediate impairment or was not premised upon reasonable cause, post-incident or as part of an individual employee's rehabilitation plan.

27 Drug and Alcohol Testing: Considerations Employers must be mindful of their obligation to demonstrate the reasonableness of each testing standard and their duty to accommodate employees suffering from addiction problems (including alcoholism). Contact legal counsel to review drug and alcohol testing policies in order to minimize exposure to a successful challenge.

28 Conclusions: Tips for Pre-employment Screening Remember that in reviewing an employer s policy, courts and panels will not only examine the intent behind the policy, but its effects. When testing for workplace impairment, consider means of testing that are the most reliable (for instance, using blood or saliva analysis, or supervisor training). Provide fair warning to prospective employees about upcoming tests.

29 Conclusions: Tips for pre-employment Screening If a prospective employee tests positive, consider conducting an independent analysis (such as a work records review) to assess if they are at a high risk for substance abuse. Consider allowing a wash-out period as an initial screen to separate recreational users from potential substance dependent individuals

30 Conclusions: Tips for Pre-employment Screening For employees who test positive but are medically assessed as low risk for substance dependency, consider offering them conditional employment under enhanced supervision. When withdrawing an offer of employment from those prospective employees who are assessed as high risk for substance abuse, consider withdrawing the offer on the condition that it could be renewed if the individual voluntarily enters (at their own expense) and successfully completes a recognized drug rehabilitation program. Consider incorporating some of the following into your company s policy: awareness programs, employee assistance, treatment programs, medication and testing.

31 Questions / Comments? THANK YOU! Note: The foregoing has been prepared for information purposes only and may not be relied upon as legal advice.

32 Ian Pickard, Partner McInnes Cooper Purdy's Wharf Tower II Upper Water Street Halifax, NS B3J 2V1 T: F: E:

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