THE QUESTION
I am 6 1/2 months’ pregnant and, due to complications, my doctor suggested I go on sick leave before maternity leave. I offered to continue working for the company remotely and they agreed I could do so, for six weeks. However, I was terminated two weeks later without cause. I received severance, but am left without health insurance. I had been with the company for three years. I signed a full and final release, and think maybe I should not have. When is the due date for filing a claim, if I have a case?
THE FIRST ANSWER
George Cottrelle
Partner, Keel Cottrelle LLP
The laws of Canada prohibit discriminatory termination of employment related to pregnancy.
Your employer allowed you to work from home until you commenced maternity leave.
Your employment was terminated two weeks later.
Leaving aside the release, you have a right to initiate either civil proceedings for damages for wrongful dismissal, or to make an application for compensation and possible reinstatement, under either the human rights or employment standards legislation applicable to you, for discriminatory, or reprisal, termination. The onus is on your employer to establish that the termination was not related to your pregnancy.
The time limits to commence civil proceedings, or to make a claim under human-rights or employment-standards legislation, are generally six months to two years, but can be as short as 45 days, depending on the applicable province and the nature of the proceeding.
The fact that you received a severance payment and signed a release may prevent you from initiating civil proceedings, or filing a human-rights or employment-standards complaint, with certain exceptions. For example, if you received the statutory minimum severance only, then the release should not preclude you from filing a human-rights complaint, or commencing civil proceedings.
The courts sometimes decline to enforce releases where there is an inequality of bargaining power, financial pressure is used to take advantage of a vulnerable employee, or where it is otherwise inequitable. However, if there was a bona fide settlement, and the release is properly worded, then your case may well be closed.
THE SECOND ANSWER
Colleen Clarke
Corporate trainer and career specialist
I am deeply sorry for your misfortune. What a cheap shot by the company! This is not the time to be job searching and you won’t feel like it while being a new mom, so put everything, including your resentment, on the back burner for the time being.
Get your résumé updated so you are ready to roll when you decide to go back to work. Set a date for when you plan to return because time will fly by and procrastination can be your enemy. Build in a plan to start your job search at least three months before your return date. Start your job search mentally before you start physically.
Scroll Internet job sites for positions and register with recruiters a few months before you start back. Take every advantage of all opportunities to network. Get your 30-second presentation honed so when you ask other moms about themselves you are prepared to share your expertise and what you are looking for. Tell your doctor, who sees a number of patients each week, what type of work you will be seeking.
Use the free services of an employee assistance program (EAP) through your husband’s company. They help with résumés, job-search strategies and can be someone to talk to while you are off, a mental-balance system for you.
Jan. 16, 2017 "I was fired for using medical marijuana. What are my rights?": Today I found this article in the Globe and Mail:
THE QUESTION
I did not inform my employer during a job interview that I used prescribed medical marijuana, but did ask our crew leader during my second shift if I could use it to combat pain I was feeling from walking all day (because of torn labrum in both hips). I explained that there is no THC in this marijuana – CBD only – so essentially it’s impossible to be “high” or intoxicated. She was more than okay with me using the medicine, but after my second day on the job, her boss sent me a text message terminating my employment. What are, or were, my rights in this situation?
THE FIRST ANSWER
Robert Weir
Partner, Borden Ladner Gervais LLP, Toronto
Whether we are school bus drivers, brain surgeons or lawyers, our employers are generally and reasonably entitled to expect we are not high when we come to work, no matter the source of impairment.
That does not change just because an employee has a marijuana prescription. This employer should have asked itself: can the employee perform their duties safely and productively while taking this medication? The employer, likely, does not know much about THC (tetrahydrocannabino) or CBD (cannabidiol). It is, however, obligated to better understand this employee’s claim that it is impossible to be high or intoxicated. The employer may need to seek expert medical advice on this, just as if it were trying to understand a complicated back injury that restricted an employee’s ability to bend or lift.
Even where there is some mild impairment caused by prescription medication, an employer must decide if there are ways to accommodate an employee if they are taking such mediation because of a disability. Again, the employer will have to consider issues of safety and productivity when conducting this assessment.
If he had been given the chance, this employee appeared ready to assist the employer in better understanding the nature of this prescription medication. Just as an employer has an obligation to ask the right questions, an employee has an obligation to provide information to assist the employer in the accommodation process. Had the employer taken the employee up on this willingness to assist, they might have had a long and productive relationship.
Also, having one’s employment terminated by text message: not cool.
THE SECOND ANSWER
Bill Howatt
Chief research and development officer of work force productivity, Morneau Shepell, Toronto
From a human-resources perspective, medicinal marijuana should be handled in the same way as any other prescription medication. As long as the medication does not impair the employee’s ability to function in any way, does not put anyone at risk, and there’s a prescription from a licensed medical doctor, the employee cannot be discriminated against. However, different than other medications, both the employee and employer have the right to review how this medication impacts the employee-employer relationship.
From a human-resources perspective, medicinal marijuana should be handled in the same way as any other prescription medication. As long as the medication does not impair the employee’s ability to function in any way, does not put anyone at risk, and there’s a prescription from a licensed medical doctor, the employee cannot be discriminated against. However, different than other medications, both the employee and employer have the right to review how this medication impacts the employee-employer relationship.
As a medical marijuana user, you must understand your rights. You also must adhere to the Health Canada standards for accessing this type of medication. It appears that you attempted to get an informal accommodation by disclosing your condition. However, supervisors cannot make medical accommodations on their own; they need to engage HR to ensure one standard is being used with all employees with the same need. How your situation was handled raises questions that are worth discussing with an employment lawyer.
Accommodations are a two-way street. Employers can’t dismiss requests for accommodations out of hand, and employees can’t dictate what they want or how they want to be accommodated. Employers must do what is responsible and be ready to defend their decisions, as they may be tested.
The number of medical marijuana prescriptions is increasing rapidly. While the law makes it clear that employees cannot be discriminated against, and have the right to use this form of medication, there still are practical day-to-day management considerations. As research shows a link between marijuana use and job accidents/injuries, employers will be challenged how to determine whether an employee has exceeded the safe-dosage level, and to assess the percentage level of the active ingredient tetrahydrocannabinol (THC).
Training for managers will be important, as will be clearly stated HR policies that make it clear how and when accommodations will be granted.
http://www.theglobeandmail.com/report-on-business/careers/management/i-was-fired-for-using-medical-marijuana-what-are-my-rights/article33620522/
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