HOLIDAY PARTIES IN THE CANNABIS AGE

"Employers should dust off their Social Events Policies, and review them in light of the legalization of cannabis, to ensure that this year’s holiday party remains safe and fun for everyone."

End-of-year parties provide a perfect opportunity for organizations to thank their employees, and to create a strong sense of team. That said, if a party is held, employers need to make sure that high spirits don’t turn into high employees, or at least that those employees don’t engage in dangerous behaviour.

Historically, it has been suggested that employers who host an event where alcohol is served should take the following measures to ensure the safety of their employees:

• Before the event, distribute the organization’s expectations, including that everyone is expected to act appropriately, consume alcohol responsibly and make plans for getting home safely if they intend to consume alcohol;
• Limit the number of alcoholic beverages any one person can consume, for example through a ticket system, or by restricting "open bar" hours;
• Have a licensed bartender serving alcohol, so partygoers can be monitored;
• Have sufficient food available to avoid people drinking on an empty stomach;
• Have a variety of non-alcoholic drinks available;
• Close the bar an hour before the party ends;
• Have taxi chits available to ensure everyone can get home safely;
• Ensure someone in authority remains in a fit state, to monitor the partygoers; and
• Have a plan to deal with anyone who tries to drive when he/she appears to be impaired.

The legalization of cannabis raises additional questions. What is an employer’s responsibility to monitor employees who bring their own cannabis to an employer’s party? Since the employer is not supplying the cannabis, should the employer be required to regulate it, and how can the employer control its use? What if someone leaves an employer’s social event impaired by cannabis, drives home and causes an accident? Is the employer liable? 

While the answers to these questions are not entirely clear at present, employers should consider in advance how they intend to address employees’ cannabis use at holiday parties.

Assuming the employer has not supplied the cannabis, the employer cannot monitor cannabis consumption in the same way as alcohol consumption, since the employer cannot be expected to limit an employee’s consumption of his/her own product, and the employer has no way of knowing the concentration of the drug that an employee is consuming.

That said, a hands-off approach is also not appropriate, since even social hosts can face liability for impaired driving, depending on the circumstances (see the recent BLG Alert on this issue). It is not a stretch to say an employer host could potentially face liability if they know of cannabis consumption at the party and do not take steps to ensure there is no impaired driving. This applies even if the employer does not directly supply the cannabis. This is particularly the case since it is possible that the employee will consume both his/her own cannabis as well as alcohol served by the host of the party, and therefore the impairment may be caused by multiple sources.

In light of these new social factors, the host recommendations listed above should continue to apply, but need to be updated to consider cannabis consumption. Employers should be clear in their policies that employees are expected to consume intoxicants responsibly, and those who are impaired (whether by alcohol or cannabis) are required to find alternate forms of transportation and not drive. Managers in attendance at the event should be told that if someone appears impaired or they are aware that someone has been consuming alcohol or cannabis, steps need to be taken to ensure the individual gets home safely.

Employers should dust off their Social Events Policies, and review them in light of the legalization of cannabis, to ensure that this year’s holiday party remains safe and fun for everyone.

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Article written by: Bethan Dinning and Jeffrey Mitchell
Article published in: Borden Ladner Gervais- Dec 3, 2018
Article spotted by: Kathryn Benson

Private eyes

There isn’t much expectation of privacy in the workplace, so employees should be careful not to leave personal information easy to access by anyone at work

An Ontario teachers' union complained that teachers’ privacy was 

violated  when a school board searched their work files and laptops,

 and when the principal looked at what was supposed to be a private log.

Do you know who’s watching? If you’re at work, it’s probably best to assume somebody is.

Everyone has a certain expectation of privacy, especially when it comes to keeping work life and home life separate. Most of the time, employers have no business in the personal lives of employees — as long as things don’t bleed into the workplace and affect productivity or the work environment.

However, things are a little different when it comes to privacy at the workplace.

Modern workplaces feature many different types of monitoring that make it difficult for anything private to take place. From security cameras to computer-use monitoring to good old-fashioned manager walkabouts, workplaces are usually open areas where anyone can see or overhear what anyone else is doing. When someone has an office, there may be a little more privacy that can be expected — though there’s a trend for many offices and meeting rooms to at least have windows, if not doors or walls that are clear glass.

Things can get a little more complicated when it comes to equipment such as computers and cellphones. If these are employer-owned equipment, the employers generally have the right to take them back and look at what’s on them, since they’re used for company business. However, when employees are allowed to take them home for personal use, there may be a certain degree of privacy expectation and who owns the content. As with many circumstances, a carefully worded policy can help clarify things.

But what about when employer-owned equipment is used to access private content? And what if that content relates in some way to the workplace? Generally, private content is just that — private. But if the means to access it is not-so-private, the expectation of privacy could lessen.

Take the circumstances surrounding two Ontario teachers who decided to keep a log about what they didn’t like about other teachers and the principal. The log was kept on one of the teachers’ private Google Docs account, but eventually other staff members and the school board heard rumours about it.

So the school board searched the teachers’ accounts on the board’s network, but they found nothing. However, one day after classes ended, the principal found a classroom laptop that one of the teachers in question had left on and logged into the digital log. The principal looked at the log and took photos with his cellphone, which led to a confiscation and search of the hard drives of that and other classroom laptops — but of course they didn’t find the log because it wasn’t on a computer, it was online.

The union complained that the teachers’ privacy was violated when the school board searched their work files and laptops, and when the principal looked at what was supposed to be a private log. However, while the log itself was in a personal file, there was a low expectation of privacy given the circumstances, found an arbitrator.

The classroom laptops were employer-owned and for the use of all teachers and students, so there was no privacy there — the school board was free to monitor what was on the hard drives. In addition, the teachers’ files on the school board network were assigned to individuals, but it was a work-related network and not for personal information, said the arbitrator

As for the principal viewing and taking photos of the log on the classroom laptop, it was the teachers’ fault for leaving the laptop on and logged into the site — the principal was free to enter the classroom and look at the laptop. He didn’t do anything to log in to the teachers’ personal log, said the arbitrator in dismissing the complaint: See York Region District School Board and ETFO (Shen), Re, 2018 CarswellOnt 13256 (Ont. Arb.).

Personal files and information are just that — private and personal information that employers have no right to dig around for. But if access to such information is available through normal use of work equipment that isn’t private and used for work, you really can’t expect that information will remain private from the employer or co-workers — there’s often somebody around who could be watching.

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Article written by: Jeffrey R. Smith
Article published on: Nov 26, 2018 in HR Canadian Reporter
Article spotted by: Louise Burden