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Q U I Z ANSWERS 1 (C) It depends. Until recently, employers were not entitled to temporarily lay off employees under the common law, unless the employee's individual employment contract so provided. In the 2013 decision of Trites v. Rennin Corp., the Ontario Superior Court of Justice held that a short-term layoff does not constitute constructive dismissal, so long as all the requirements of the Ontario Employment Standards Act, 2000 are met. Section 56(2) of the act sets out the requirements for a short-term layoff. As such, the legality of the layoff would depend on whether these requirements were met. That said, Trites is new law and there are a number of earlier cases that stand for the proposition that temporary layoffs can only be validly implemented if the terms of the employment relationship specifically allow them. Employers are best advised to build the possibility of short-term layoffs into their employment contracts if they wish to rely on that practice. 2 (B) No. Under the Ontario Human Rights Code, employers have a responsibility to accommodate employees to the point of "undue hardship." If an employee is absent for reasons that are protected by the code, such as a disability or family status issue, then an employer is required to accommodate them. In most if not all workplaces, ten days of absenteeism will not constitute "undue hardship." In any case, employers first have an obligation to procedurally explore accommodation options. Therefore, this automatic termination provision is unlikely to comply with an employer's human rights obligations. 3 (C) It depends. Previously, employers who worked in safetysensitive environments were entitled to randomly test for suspected drug and alcohol use. However, in the 2013 decision of Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd., the Supreme Court of Canada held that such random testing is only permitted where an employer could demonstrate "enhanced safety risks." In that case, the employee worked in a paper mill, which was undoubtedly a dangerous work environment. Yet, only eight instances of alcohol consumption on the job had arisen at the mill over a 15-year period, which was not enough to justify random drug testing. Before considering the implementation of a random testing policy, employers must now ensure they have "enhanced safety risks," such as significant instances of intoxication on the job, a dangerous incident in the workplace due to intoxication, or an identified substance abuse situation. Additionally, if employers operate in a unionized environment, the better approach is to negotiate the implementation of a drug and alcohol testing policy with the union as part of the collective bargaining agreement. 4 (B) No. Unpaid internships, though ubiquitous, are generally illegal in Ontario. The Ontario Employment Standards Act, 2000 provides that all employees are to be paid minimum wages. Interns are not excluded from the act. Unpaid internships are only legal where the following six criteria are met: 1. The training is similar to that which is given in a vocational school; 2. The training is for the benefit of the intern; 3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained; 4. The training does not adversely affect another job or position in the workplace; 5. The employer is not promising the intern a job at the end of the training; and 6. The intern has been told he or she will not be paid for their time. The Ontario government is in the process of introducing new laws that will affect the legislative scheme of unpaid interns in a variety of ways, including with respect to health and safety issues. YOUR RANKING? ■ One correct: might be time to brush up ■ Two correct: not bad, but some further work needed ■ Three correct: very well done, but not perfect ■ Four correct: excellent A OF CANADIAN LEGAL NEWS DAILY BLOG [ WWW.CANADIANLAWYERMAG.COM/LEGALFEEDS ] POWERED BY CANADIAN LAWYER & LAW TIMES 16 February 2014 INHOUSE

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