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HR Heartbeat: Lessons in terminations, pre-employment drug tests and...

In this week’s HR Heartbeat, we look at why it’s important to disclose disabilities during the hiring process, best practices for conducting terminations and so much more.

Tuesday, Jan 23, 2024
4 min read

Have you heard the latest news?

Welcome to HR Heartbeat where we give you a rundown of the week's top employment law stories. Stay on the pulse of current trends impacting your business. Plus, get up-to-the-minute commentary on all things HR and legal.

So, let's check out this week's headlines...

Lessons in terminations: How NOT to fire an employee

Recently, a video of an employee getting fired over Zoom went viral. The video sparked debates among employers and many viewers who'd also been through a similar experience.

This conversation serves as a lesson for best practices for terminating employees. Especially for employers in Canada.

Here are a few notes employers can take for handling terminations the right way.

  1. It's important to act with caution when conducting terminations. As shown in the video, if you're terminating an employee without cause, it's best not to provide a reason. There's a risk of the employee claiming ill-intent or dishonesty.
  2. Another lesson employers can take from the video is that having an immediate supervisor or manager at the meeting is vital. This way, the employee has some support and context on why you're terminating them. It also helps make the process more personalized and respectful while remaining professional.
  3. Go into terminations meetings prepared. When asked why they were being let go, the employer tried to take the typical 'poor performance' route, but the employee countered it with facts. Proving why you should have a well-researched list of talking points and stick to a script.
  4. Provide the employee with a termination letter during the meeting, and make sure they review it in their own time. It's also good practice to let the employee know they can ask questions via email or over the phone if necessary.

Remember, there's always a risk of reputational damage for your business if an employee decides to go public with a messy termination. That's where a 24/7 employment relations expert advice line like BrightAdvice can help.

Get advice on everything from managing the risks of a wrongful dismissal claim to how to prevent reputational damage to your company.

It's not you, it's us

The Human Rights Tribunal of Alberta recently ruled that an employer did not discriminate against a job candidate by cancelling their job offer after the candidate failed a pre-employment drug test.

The candidate claimed discrimination based on a physical disability (Hashimoto's disease). The candidate didn't disclose their illness and medical use of cannabis to the employer, and since the role was a safety-sensitive position, the job was revoked.

The Tribunal found the candidate's disability played no role in the employer's decision. Because the employer didn't know about the candidate's disability, and there were no indicators they should ask.

This case serves as a lesson to both employers and employees. For employees, it emphasizes the importance of disclosing disabilities, especially for safety-sensitive roles.

For employers where there are indicators or reasonable suspicion, it's your duty to ask candidates whether they have a disability or not.

Out from the shadows, into the spotlight

In more drug-related news, recent updates to Alberta's Gaming, Liquor, and Cannabis Regulation allow licensed Cannabis Retailers more flexibility in operations at adults-only events.

Cannabis retailers must no longer move their products to a secure storage room. They can now keep their products in locked display cases outside business hours.

The rules on Cannabis consumption and youth access will stay the same. But these changes are welcome as they'll reduce barriers and costs for legal retailers.

It also gives them a competitive edge over illegal cannabis sellers and makes stock management more flexible.

There’s always the potential risk of having impaired customers at trade shows and festivals where there are cannabis sales. That's why you must perform detailed risk assessments to safeguard your staff and your customer's health & safety.

Get peace of mind with our library of health & safety documents, BrightBase. It contains over 200 risk assessments your business can rely on to maintain a safe work environment.

That's it for today! Come back next week for more HR news so you stay ahead of major employment law changes.

Have more questions on similar topics and more? BrightLightning has thousands of answers to all your HR and health & safety dilemmas.

Can pre-employment drug testing be discriminatory?

Pre-employment drug testing could be considered discriminatory across Canadian human rights law. On the one hand, drug testing could reveal a person’s substance dependency and addiction, which would pose a risk of discrimination against the candidate if a job offer were rescinded. On the other hand, drug and alcohol testing in general represents an intrusion on employee privacy and bodily autonomy. Thus, a pre-employment drug testing program should be justified for the promotion of workplace safety, ensure minimum impact on employee privacy, and guarantee accommodations for drug and alcohol-related disabilities (up to the point of undue hardship).

How do I dismiss someone without cause?

Employers can terminate employees without cause at any time, for any reason, so long as the reason is not discriminatory. Even though it is not legally required, holding a meeting with the outgoing employee to explain the reasons for the termination can help them get closure and leave on better terms. Employers must then follow up the meeting with a written termination letter that specifies the employee’s entitlements to termination notice or pay in-lieu (whether statutory or common law), severance pay (if applicable), and any unused vacation amounts or outstanding wages that are payable.

Can employees that use cannabis for medical purposes request accommodation?

Medical use of cannabis by an employee can be a reasonable accommodation. However, accommodations are fact-specific and will vary with each case and may take the form of making changes to a worker’s duties and responsibilities. It is best practice for employers inquire on limitations that the employee’s prescribed treatments may place on their ability to work safely and effectively.

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