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SCC Issues Landmark Decision on Workplace Drug Testing

Overview

On June 15, 2017, the Supreme Court of Canada (SCC) issued its decision in Stewart v. Elk Valley Coal Corp. This landmark decision is a welcome result for employers as it reaffirms the right of employers to take proactive risk mitigation and management measures through alcohol and drug policies.

In its decision, the SCC held that employers can terminate employees for breaching a drug and alcohol policy even if the employee has a drug addiction.

Background

The appellant in the case, Ian Stewart (Mr. Stewart), worked in a safety-sensitive position for a mine operated by the Elk Valley Coal Corporation (Elk Valley) in Alberta. Recognizing that mine operations can be dangerous, maintaining a safe work environment was a matter of great importance for Elk Valley. Accordingly, Elk Valley implemented a drug and alcohol testing policy (policy) whereby employees were required to disclose any dependency or addiction issues before any drug-related incident occurred.

Under this policy, if an employee revealed a dependency or addiction issue to Elk Valley, he or she would be offered treatment. However, the policy also provided that employees could be terminated if they:

  • Failed to disclose their dependency or addiction;
  • Were involved in a safety incident; and
  • Tested positive for drug use after the incident.

Prior to the implementation of the policy, Elk Valley held training sessions for employees where the policy was presented and explained. All employees were required to sign acknowledgement forms to indicate they understood the policy. Mr. Stewart attended one of the training sessions and signed the acknowledgment form indicating that he understood and agreed to comply with the terms of the policy.

Approximately six months after the implementation of the policy, Mr. Stewart was involved in a workplace accident. During the subsequent investigation, Mr. Stewart was required to undergo a post-accident drug test where he tested positive for cocaine use. Mr. Stewart was then terminated by Elk Valley for violating the policy.

Mr. Stewart then filed a complaint with the Alberta Human Rights Commission alleging discrimination under Alberta’s Human Rights, Citizenship and Multiculturalism Act (the Act) on the grounds of a physical disability connected with his drug addiction. Mr. Stewart’s side argued that his failure to comply with Elk Valley’s policy was the result of a symptom of his addiction, and, therefore, his termination was contrary to the Act. The Alberta Human Rights Tribunal held that Mr. Stewart was justifiably terminated for breaching Elk Valley’s policy, not because of his addiction. This decision was affirmed by the Alberta Court of Queen’s Bench and by the Alberta Court of Appeal.

Supreme Court of Canada’s Decision

In an 8-1 decision, the SCC gave deference to the Alberta Human Rights Tribunal’s findings and the lower courts’ rulings that Mr. Stewart’s disability was a not a factor in his termination. Instead, the SCC found that Mr. Stewart was dismissed because he failed to adhere with the terms of Elk Valley’s drug and alcohol testing policy. Therefore, Elk Valley did not violate Mr. Stewart’s rights under the Act when he was dismissed.

In particular, the SCC accepted that since Elk Valley’s policy distinguished between disclosing drug use before and after testing positive, Mr. Stewart had the capacity to comply with the policy despite his addiction. Accordingly, Elk Valley terminated Mr. Stewart for breaching a policy that he could have complied with, not for having a drug addiction. As such, the SCC found that the circumstances of Mr. Stewart’s termination did not raise to a prima facie case of discrimination. Moreover, since the SCC did not find a prima facie case of discrimination, it was not necessary to consider whether accommodating Mr. Stewart would impose an undue hardship on Elk Valley.

Key Takeaways for Employers

The SCC’s decision is a clear win for employers that seek to ensure a safe work environment for their employees. The ruling reaffirms that employers with properly designed drug and alcohol policies have the ability to terminate employees who violate those policies, even when drug addiction is involved. What’s more, employers should consider the following:

  • When developing drug and alcohol policies, including accommodations for addiction can help ensure that employees are incentivized to disclose drug dependency before risky behaviour takes place in a safety-sensitive workplace; and
  • When implementing drug and alcohol policies, employers should make sure that adequate training is provided to employees and that employees expressly acknowledge their understanding of the policy.

Of course, the circumstances in each workplace differ. Accordingly, we encourage employers to discuss issues surrounding drug and alcohol policies and related terminations with their legal counsel before proceeding.

©  Zywave, Inc. All rights reserved.


New Commercial Fishing Vessel Safety Regulations are Coming

Overview

Changes to Fishing Vessel Safety Regulations will come into force beginning July 13, 2017—one year after they were initially announced. Transport Canada has said these regulations will help reduce fatalities, injuries, and loss or damage to vessels in the commercial fishing industry.

These changes amend the previous Small Fishing Vessel Inspection Regulations, which have not been updated in 40 years or kept up with industry best practices and new technologies.

Action Steps

In general, the Fishing Vessel Safety Regulations apply to small fishing vessels that are less than 24.4 metres in length and 150 gross tonnage. Transport Canada’s one-year transition of the regulations will come to a close July 13, 2017, and fishing vessel owners will need to comply with the new requirements.

The following are some major highlights from the regulation:

  • Safety equipment. As per the new regulation, small fishing vessels must have firefighting equipment (portable fire extinguishers) on board. Personal life-saving appliances are also required for all small fishing vessels, and items like life rafts, immersion suits and lifebuoys must be readily available.
  • Safe operating procedures. The new regulations require small fishing vessels to provide safe operating procedures in writing to the crew. These procedures must meet the language needs of the crew, and will most likely be written in English and/or French. To execute these procedures, the fishing vessel crew should be familiar with the following:
    • The location and use of all safety equipment
    • General safety measures, including how to prevent people from falling overboard, how to retrieve someone who has fallen overboard, how to protect limbs from rotating equipment, and how to avoid ropes, docking lines, nets and other safety equipment
    • How to activate the quick release of loads during an emergency, particularly when beam trawling and purse seining
    • Fire and explosion prevention methods
    • Measures related to maintaining water- and weather-tightness, thus preventing flooding of the hull interior
    • Safe loading, stowage and unloading practices, particularly as they relate to fish catches, baits and consumables
    • Towing and lifting equipment operating procedures

While written safety procedures do not need Transport Canada approval, marine safety inspectors may ask to see copies of the written safety procedures on board the vessel.

  • Safety drills. Drills on safety procedures must be held to ensure that the crew is proficient in carrying them out. A record must be kept of every drill.
  • Vessel stability. New and small fishing vessels that have a hull length between 9 and 24.4 metres are required to have a formal stability assessment. In addition, new and small fishing vessels that have a hull length of less than 6 metres must be compliant with the standards for buoyancy, flotation and stability set out in Section 4 of the Construction Standards for Small Vessels. New and small fishing vessels with a hull length between 6 and 9 metres are required to be compliant with recommended practices and standards specific to their vessel type and their intended operations.
  • Stability assessments. A full stability assessment consists of inclining the vessel and developing a stability booklet. Doing so helps operators understand the limits of their vessels and, in turn, allows the crew to load them in a safe manner and to avoid the risks associated with swamping, capsizing, foundering and sinking. Under the new regulations, stability assessments—either full or simplified—are required for the following vessels:
    • New and small fishing vessels that have a hull length greater than 9 metres
    • Existing small fishing vessels that have a hull length greater than 9 metres and have undergone a major modification that’s likely to impact overall stability
    • Existing fishing vessels that weigh more than 15 gross tonnage and are used for catching herring or capelin
    • Fishing vessels that are fitted with an anti-roll tank
    • Small fishing vessels that carry fish in bulk, exhibit free-surface effects or have a hull length of more than 18 metres

Improving Safety

As previously mentioned, the government hopes the new regulations will make commercial fishing safer. According to Transport Canada, commercial fishing is one of the most dangerous occupations in Canada. New safety requirements may help reduce the two primary causes of fatalities on commercial fishing vessels—stability-related accidents (58 per cent of fatalities) and falling overboard (27 per cent of fatalities).

Many commercial fishermen and women support the new legislation, but have requested more clarity on required standard operating procedures and more time to acquire expensive safety equipment. To read the legislation in full, click here.

© Zywave, Inc. All rights reserved


1 in 4 Internet Users Don’t Know How to Respond to a Ransomware Attack

The 2017 Centre for International Governance Innovation (CIGI)-Ipsos Global Study on Internet Security and Trust, which surveyed 24,255 users across multiple countries, recently found that 1 in 4 internet users would have no idea how to respond to a ransomware attack. In addition, the study found that just 16 per cent of users would know how to retrieve data from a backup while another 13 per cent wouldn’t even attempt to recover data if vital information was compromised.

This survey comes on the heels of the recent WannaCry ransomware attacks, which impacted over 200,000 users in at least 150 countries. Initial reports indicated that the WannaCry attack used ransomware to hijack computer systems and demand money in the form of bitcoin, a type of digital payment system.

The ransomware initially requested around $300 and, if no payment was made, it threatened to double the amount after three days and delete files within seven days. This type of cyber attack is common and can impact businesses of any size, so it’s important to know what steps to take in order to protect your business.

The WannaCry attacks illustrate the importance of ensuring that any and all software patches are up to date. For further protection, consider training every employee on cyber security, and instruct them to never click on suspicious emails or attachments.

Other ransomware precautions include the following:

  • Update your network if you haven’t yet and implement the appropriate software patches.
  • Turn on auto-updaters, if available.
  • Don’t click on links that you don’t recognize.
  • Don’t download files from people you don’t know.
  • Back up your documents regularly.

Following this attack, organizations are likely to be more proactive in adjusting security measures so malware can’t spread automatically. Taking these precautions into mind, your organization can avoid potentially costly ransomware attacks. As an added benefit, a higher focus on in-network security measures can make your organization more attractive to potential customers and other third parties.

© Zywave, Inc. All rights reserved


5 Tips for Restoring Your Business Following a Flood

Recently, Canada has experienced some of the worst flooding in decades, and torrential rain has led to mandatory evacuations and a state of emergency in parts of the country. Flash floods are extremely common and can occur within minutes of excessive rainfall, a dam or levee failure, or a sudden release of water held by an ice jam.

Floods can be miserable ordeals, even with extensive preparation. They can spring up with little to no warning and burden you with the responsibility of a lengthy, expensive restoration period. To properly restore a business after a flood, consider the following five tips:

  1. Notify your insurer. Take pictures of contents and damage for your insurer. The more pictures, the better.
  2. Check for structural damage before entering the building. Do not enter if there is any chance it may collapse. Assume that all water-damaged structures are unstable until proven otherwise.
  3. Use a pump and generator to remove water. Position the generator outside in the open air if it produces carbon monoxide. Only pump out water once the flood levels outside your property are lower than they are inside.
  4. Disinfect your property with ordinary household cleaners, but follow the manufacturer’s directions to ensure you are disinfecting properly. Let cleaned surfaces dry completely.
  5. Make the most out of an unfortunate situation by using your flood damage as an opportunity to repair your property with flood-resistant products.

Remember, the ultimate preparation for a flood is proper insurance. Be sure to purchase a comprehensive policy that accounts for business interruption and is tailored to your specific industry and location.

© Zywave, Inc. All rights reserved


Risk Management for Fitness Facilities

Fitness facilities are popular destinations for those looking to get in shape, and the owners and operators of these facilities are passionate about helping their members better their health. However, to best serve their members, owners of fitness centres need to address the unique risks associated with their business.

This Risk Insights reviews some of the most common risks associated with fitness facilities and provides ways business owners can limit their exposures.

Workout Classes

While group fitness classes and boot camps are popular, they can put participants at risk. When offering such classes, remind those participating that they should only sign up for programs that suit their level of fitness. For further protection, you can ask patrons to sign a waiver and release form.

Offering beginner and intermediate programs in addition to high-intensity classes is another great way to ensure a participant’s skill level is paired with the correct workout. Additionally, you should empower all instructors to move participants out of a class and into another, more skill-appropriate class, if necessary.

Trips and Falls

Because patrons of your facility are running, jumping and using heavy equipment in crowded workout areas, they are at risk of tripping and falling. Installing non-slip floor materials where appropriate can greatly reduce the likelihood of a fall. Rubber floors, mats and gym turf are reliable flooring options that also act as a shock absorbent, protecting the floor from damage caused by weightlifting and other activities. The type of flooring that’s right for various workout areas depends on the activities being performed. Be sure to conduct thorough research prior to any major purchase.

Staff should also avoid mopping heavily trafficked floors during peak hours, as this can create a slipping hazard.

However, employees should address any spilled substances immediately to eliminate the potential for an accident.

To further protect patrons from slips and falls, it’s important to practise good housekeeping by removing objects like weights, electrical cords and exercise balls from common walkways. In addition, you should instruct members to always return equipment to its appropriate storage location when they are done using it.

Regardless of how an injury occurs, it’s important that you log any incidents that occur at your fitness facility. You can use signage to educate fitness facility members on the rules of the gym, common hazards to watch for and ways to avoid injury.

Trainers

While most trainers you hire may be exemplary employees, they can be a source of serious liability. For example, a trainer could encourage a patron to exercise above their ability during a workout, causing serious physical or emotional trauma.

In addition, because trainers work closely with their clients, the risk of sexual and other types of harassment increases in fitness facilities. To combat this, it’s important to screen your personal trainers heavily during the hiring process. You will want to examine a trainer’s demeanour and professional qualifications closely during interviews.

Exercise Equipment

Exercise equipment and weights, if used improperly or without a spotter, can cause broken bones, sprains and other types of injuries.

What’s more, equipment can break if it is misused or abused, leading to costly repairs and a reduction in the quality of your members’ experience when their favourite equipment is unusable.

To mitigate these risks, consider the following:

  • Inspect all of your machines regularly for loose or frayed cables and other damage. Machines may be used by hundreds of members each day, so they can deteriorate and malfunction quickly.
  • Train your staff on how and when to decommission machines that are not in perfect working order. A “do not use” tag should be attached to equipment that is out of service.
  • Make sure treadmills are strategically placed to reduce the possibility of a gym member stumbling and being thrown into a wall. Pad any walls behind treadmills that cannot be repositioned.
  • Train all club members on the proper use of equipment. Monitor the workout areas, and intervene if risky behaviour is observed.
  • Purchase quality equipment from a reputable dealer who is able to offer parts and service. Keep a repair kit on hand in your gym.
  • Lubricate the pedals of exercise bicycles, elliptical machines and cross trainers regularly.
  • Avoid installing equipment that can be especially hazardous. This can include cable pull-downs, seated crunch machines, machine abductors and abdominal rotation machines.
  • Instruct patrons to wipe down communal equipment before and after they use it. This will keep bacteria from breeding on shared equipment like cardio machines, weights and yoga mats. Your staff should also perform thorough cleanings of all machines and equipment on a regular schedule.

The Locker Room

Because locker rooms are designed for privacy, the likelihood of an assault or other emergency can be high. Regardless of the calibre of your clientele, these incidents can happen without warning. As such, it’s important to make sure a staff member is present or conducts checks of the locker room in regular intervals.

You will also want to consider the personal property of your fitness facility members. Above all, it’s important for your locker room to have properly maintained and functioning lockers. You can also control access to lockers and locker rooms by using a key system that requires members to check in at the front desk. This can not only help control instances of theft, but also allow for strict monitoring.

In addition to the risk of theft in locker rooms, there is also the risk of injury, as many locker rooms also feature shower facilities. Whenever water is present, there’s a chance gym patrons could slip and fall. Ensure that your shower area is equipped with adequate drainage, particularly in walkways between showers and doorways. The staff member assigned to monitor the locker room should also keep an eye out for soap spillage or other liquids that could make walkways slick.

Locker rooms can also be breeding grounds for germs and bacteria that cause athlete’s foot, warts and brittle nails. As such, patrons should be instructed to wear flip-flops or other footwear in the shower, pool and locker room areas.

The Pool Area

Depending on the complexity of your fitness facility, you may provide pool access to your patrons. Similar to shower facilities, pool decks create slip and fall risks, which, in turn, create liability exposures. To limit the risk, it’s important to ensure that the general walkways of the pool deck are free of hoses, mats and other slipping and tripping hazards.

In addition, swimming itself creates its own set of risks. For instance, patrons could drown or get injured on the diving board. What’s more, many types of bacteria can survive easily in swimming pools, circulating among different swimmers to spread illnesses.

To address the above risks, it’s important to do the following:

  • Post appropriate signage in and around the pool area. The signs should detail the rules of the pool and the general risks associated with using your facilities.
  • Ensure that lifeguards and personnel are present, properly trained and alert.
  • Keep lifesaving equipment close to the pool at all times.
  • Be aware of the pool depth and enforce “no diving” restrictions in shallow areas.
  • Keep the pool water properly filtered and chemically treated at all times.

It should be noted that water and chlorine are excellent conductors of electricity, making swimming pools very hazardous in unsafe electrical conditions. To limit the risk of electrical shock to those using the pool, keep in mind the following:

  • Never store ungrounded electrical equipment near the pool.
  • Only use only ground circuit fault interrupter (GCFI) outlets in the pool area.
  • Keep patrons out of the pool during lightning storms.

External Risks

The risks of running a fitness facility are not simply limited to liability issues. Like any business, fitness facilities could be the victims of cyber attacks, natural disasters or other emergencies.

In terms of external risks, it’s important for managers to keep in mind the following:

  • Cyber risks. Small businesses are often easier to hack, which means that your customers’ data—their names, addresses and credit card information—could be a target for cyber criminals. As more and more fitness facilities move to online solutions for enrollment and class scheduling, proper cyber-security measures are becoming vital.
  • Catastrophic events like wildfires, floods, earthquakes and wind storms can strike without warning. When they do, businesses could face costly, sometimes debilitating, damage.
  • Emergencies like explosions, violent acts, shootings, sexual abuse and disease outbreaks can impact fitness facilities at any time. The cost to recover from these incidents and repair your reputation is often significant—sometimes hundreds of thousands of dollars.

Get the Coverage You Need

The risks a fitness facility faces are many, and organizations that fail to mitigate their exposures may find themselves in expensive legal trouble.

Because the type and severity of risks is largely dependent on a fitness facility’s specific features, it’s important to speak with a broker about coverage options. He or she will be able to analyze your exposures and determine the coverage that is right for your business.

© Zywave, Inc. All rights reserved


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