There are various new developments in the area of labour and employment law. You may have heard, for example, about the TTC in Toronto attempting to impose drug and alcohol testing. This is a trend among employers with employees in safety-sensitive jobs, such as driving a bus. The obvious purpose for such testing is to avoid workplace accidents caused by impairment from drug and alcohol use on the job.
There have been human rights challenges to such testing, whether on the job testing or pre-employment testing. In one case, a large multi-national company had a hiring policy requiring all applicants to pass a pre-employment drug test. One applicant was a recreational cannabis user. The applicant failed the test and challenged the policy in the courts arguing discrimination. The appellate court concluded that the policy was not discriminatory because the testing was directed at the actual effects suffered by recreational cannabis users and how this could impact on job performance.
Another hot topic these days is workplace violence. Employers are exposed to lawsuits by employees or customers resulting from injury in the workplace due to violence. This is a security issue for employers and many of the big companies now employ security officers on the job. According to the Criminal Code, a security officer is justified in using reasonable force to protect another person from a violent act. Thus, a security officer may use baton and handcuffs when facing an actively violent person without exposing the employer to a potential lawsuit. But employers may be exposed to liability for the acts of its security officer if the officer uses force that is not legally justified or uses excessive force.
There are also new provisions in the Criminal Code for prosecuting an employer for criminal negligence causing death when a workplace accident results in the death of an employee. The first successful prosecution occurred this year in Quebec. An employer was found negligent when it allowed an employee to operate a machine when its motion detector safety mechanism was deactivated. The employee was killed trying to clear a jam in the machine. The employer was fined $110,000. Surprisingly, no one became a guest of Her Majesty the Queen.