By now everyone should know that sexual harassment is not permissible in the workplace, but even amidst the flurry of allegations we have seen in the #metoo era, exactly what constitutes sexual harassment might still be a little fuzzy. With love in the air today, workers across the land might be wondering, can I ask my co-worker to be my Valentine? In today’s post we will take a closer look at the law around sexual harassment and try to answer that burning question.

Section 10 of the Human Rights Code

The Ontario Human Rights Code defines harassment in section 10 as “engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome.”

Wal-Mart Canada has been hit with the largest award for moral damages in a Canadian employment case ever. In December, the Ontario Superior Court awarded punitive and moral damages of $750,000 to former Wal-Mart Canada employee Gail Galea. Read the full decision here (nearly 100 pages).

Ms. Galea was a senior management employee, hired by Wal-Mart in 2002. She quickly climbed the ranks, eventually earning nearly $500,000 in annual total compensation and the position of Vice-President, General Merchandise.

Amongst the many changes to the Employment Standards Act introduced by Bill 148 is the expansion of Personal Emergency Leave. Previously only available to employees in workplaces with 50 or more employees, this 10 day leave is now available to everyone. The first two days of leave are paid. Effectively this amounts to two days of paid sick, caregiver or bereavement leave per year for all employees.

Entitlement to Personal Emergency Leave

Personal emergency leave can be taken for the following reasons:

1. A personal illness, injury or medical emergency.

2. The death, illness, injury or medical emergency of an individual described in subsection (2).

3. An urgent matter that concerns an individual described in subsection (2).

Subsection (2) details a list of individuals from the employee’s spouse to the step-grandparent of the employee’s spouse – basically the leave can be taken with respect to any of the employee’s or the employee’s spouse’s relatives.

Evidence of Entitlement

A tricky amendment, and the one that we anticipate will create a lot of headaches for employers, is with respect to evidence. Subsection (13) sets out that employers “shall not require an employee to provide a certificate from a qualified health practitioner as evidence” of their entitlement to the leave. “Qualified health practitioner” is defined in this section as a doctor, nurse or psychologist. What is permitted under subsection (12) is the mysterious “evidence reasonable in the circumstances.”

We can appreciate that not every illness requires a trip to the doctor (or nurse or psychologist), and that the hassle of getting a doctor’s note can create its own set of problems, however what type of evidence will employers be able to require from employees using these days?

What is “evidence reasonable in the circumstances”?

While the amendments to the Personal Emergency Leave are too new to have been considered by the courts at this point, the phrase “evidence reasonable in the circumstances” was in the previous version of the legislation and has been considered by decision makers.

The most comprehensive discussion of this ambiguous phrase comes from Arbitrator Chauvin in Access Alliance Multicultural Community v Health, Office, Professional Employees and Education Division of UFCW, Local 175. In that case he provided the following guiding comments about what is “reasonable in the circumstances”:

Determining what is reasonable requires a balancing of the rights and interests of the employer and the employee
– The employee has a statutory right to the leave
– The employer has the right to operate its business productively

Ideally, the employee will provide the best evidence reasonably available to support their entitlement to the leave

Evidence requested by the employer should be proportionate to the length of the leave – for example, in the case of a leave of only one day the employee’s statement may be sufficient and it may be unreasonable to require that the employee provide further evidence

Where grounds exist to question the legitimacy of the leave, it may be reasonable to require more evidence

An example given in the case is that of an employee missing a day of work because of a migraine. This situation was considered in Tilbury Assembly Ltd. v. United Automobile, Aerospace and Agricultural Implement Workers of America, Local 251 (International Union) (Butler Grievance), [2004] O.L.A.A. No. 111, 124 L.A.C. (4th) 375 where the arbitrator ruled that it was not reasonable to require a doctor’s note, because it was not necessary for the employee to see a doctor because of a migraine. A note from the pharmacist and a receipt for migraine medication was sufficient “evidence reasonable in the circumstances.”

What’s an Employer to Do?

While an employer cannot require a doctor’s note this does not mean an employer cannot ask for one, there will just be no recourse where the employee refuses to provide it. Employers need to act as reasonably as possible and tailor their requests for evidence to the circumstances. If a leave is taken to care for a sick child, it may be reasonable to request evidence of the child’s absence from school. If a leave is taken because of the death of a family member, it may be reasonable to request to see the obituary. If an employee takes one day off because they have a sore throat it may be reasonable to just take them at their word. If, however, they have a pattern of having a sore throat every Monday and Friday it may be reasonable to require more evidence.

Employer’s should bear in mind that the leave entitlement is for 10 days (the first two are paid). Therefore, it is permissible to require an employee to provide a doctor’s note on the 11th day.

If you need help understanding the amendments to Ontario’s workplace laws or implementing an attendance management program we would be happy to assist. Contact us at SpringLaw for more information and to discuss the specifics of your situation.

Stories about artificial intelligence (AI) stealing our jobs and robots going rogue have been in our collective consciousness for years. Elon Musk has also sounded the alarm bells, calling AI the “biggest risk we face as a civilization”. While he may know a few things I don’t, I can’t say that I agree. Always one to embrace technology, I think AI has great potential to be used by businesses in the HR space, such as to make hiring practices more efficient and more fair.

Online dating sites such as OkCupid have been using AI for over a decade to help people find their love match, so why not apply that success to employers looking for the right candidate.

Picture a hiring manager faced with a thousand job applications to sort through – AI can help Human Resources sift through resumes and identify suitable candidates. AI assisted applicant screening also has great potential to reduce the risk that candidates will be discounted because of implicit bias that human hiring managers may unconsciously hold. For example, studies have shown that those with anglicized names get more job interviews than those whose names suggest they are members of a minority group.

AI can act as a bias-free screening tool. AI hiring assistants do not know how old candidates are, what they look like or what sex they are. This levels the playing field, ensures diversity of candidates and helps businesses truly find the best talent.

Some businesses are doing away with resumes entirely, amid suggestions that they reveal too much information that could trigger potential bias – name, gender, schooling – and that these attributes have very little to do with whether or not the candidate will be a good fit.

One new technology works with employers to film candidates answering questions. AI then measures things like micro-muscle movements in the person’s face to make judgments about their communication skills, level of enthusiasm etc. This practice shortlists candidates based on applicable skills in a way that is free of human bias.

Another iteration of AI hiring technology, currently being used by some large organizations, uses OkCupid-like questions to find candidates jobs that would be a good match for them. Searching the entire opening pool, candidates are directed to jobs that they would not have necessarily applied for, but that may be a good fit. Similar technology is being used to ensure that current employees are in positions that fit well with their skills.

Giving all these jobs to robots and algorithms raises interesting ethical questions. Is it an invasion of a candidates privacy to measure the quiver of their lip during a video interview? Plus, any AI system is only as good as the data inputted into the system to be assessed.  How do we assure there are no baked in biases in the data or the way the data is prioritized, that the human directed data is not somehow tainted with bias, leading to further system discrimination?

What if something goes wrong, who will be held responsible? Computers do not act with intention and they cannot not be punished. How will the law navigate these questions of liability? Corporations for example are legally recognized as their own entities. Could the law evolve in the same way with respect to AI?  

The expansion of AI in the workplace will continue to raise big questions, and likely trigger the need for policy changes as well as new government regulation.  Either way, HR is not being outsourced anytime soon.  Rather, technology like AI will serve as another tool to deal with the high volume of work facing every HR department.

Contact us at SpringLaw for help with all of your workplace law questions.