Tuesday, August 22, 2017

"Anticipating severance, I was offered a job"/ cannabis prescription

May 29, 2017 "Anticipating severance, I was offered a job. What do I do?": Today I found this article in the Globe and Mail:


I had been with my company almost 20 years when it was taken over by a larger company. Layoffs were inevitable and I anticipated a great severance package. But last week, the new company presented an offer for a job like the one I was doing, except I would report to someone who used to report to me. The company said, ‘ Take it or there is nothing.’


Daniel Lublin Partner, Whitten &Lublin Employment & Labour Lawyers, Toronto

There is no implied right to a severance package, no matter how long or meritorious your service. The entitlement to a package arises only if you are terminated for any reason other than misconduct, including layoffs and restructuring, or if you are constructively dismissed.

Without a termination, one way or another, there is no severance package.

A constructive dismissal is really a termination in disguise. Sometimes an employer makes key changes to your position, compensation, or duties, or it generally mistreats you. If the changes are prejudicial to you and humiliating, you may be entitled to leave work and claim an entitlement to a severance package, even though your employer never said or wrote that you were dismissed.

The key is establishing that the changes to your job were significant and a reasonable person would not be expected to remain in the role.

Changes to your reporting structure could be a constructive dismissal, especially where you are reporting to someone who used to report to you, but I would not count on this fact alone, since the job you are being asked to take on is similar to the one you had.

You need to first figure out what ‘ take it or nothing’ means. Be careful not to indicate that it’s your preference to see a package because this strategy could backfire. I usually tell my clients that if a company knows that you want a package, they can be far less likely to offer you one, in the hope that you will just pack up and leave on your own, without a payment.

Next, get specific advice about whether or not you have a viable constructive-dismissal case, as this may be your only option.


Eileen Dooley Vice- president, VF Career Management, Calgary

When big companies buy big companies, employee reactions vary from, ‘ What is going to happen to my job?’ to ‘ Show me the money!’ The latter is especially true for long- term employees who potentially stand to receive a significant severance amount.

When the new company offers the long- term employee a job, there is relatively limited choice in the matter, especially when it is a similar job with similar responsibilities. If the job is not accepted, usually the only alternative is to take the mandatory amount specified in the Employment Standards Code, which means the employment has ended.

Since a lucrative severance is off the table, consider this a prime opportunity to assess your career, within the new company or elsewhere. Recognize that it is common for the culture of the purchasing company to prevail going forward, forcing you to examine this aspect carefully.

In not accepting the role offered, you’d see a smaller payout but have the time and focus for finding a new role. In contrast, taking the job may preserve your seniority in the event of future layoffs and may present new opportunities you haven’t considered or that weren’t an option with the former company.

Either way, stay in charge of your career by removing the severance money as a primary decision factor and focus instead on what you want out of your work in terms of challenge and opportunity.


Jun. 12, 2017 Is the WCB disclosing a cannabis prescription a rights breach?: Today I found this article in the Globe and Mail:


I was injured at work and my pain doctor “prescribed” medical cannabis. During that time I was still off work at home with no set return date. There was no need to inform my employer until a return-to-work date was set. My Workers Compensation Board case worker met with my employer and informed them I was “treating” my symptoms with cannabis. My employer decided at that time they could not accommodate me. Does this sound like a huge confidentiality breach?


Lorelle Binnion

Associate, Borden Ladner Gervais, Calgary office

Employers are responsible for ensuring that an employee returning to work after an injury is able to do so safely, which requires the employer to be aware of the employee’s medical limitations. However, it does sound like your privacy rights may have been breached in this situation, since generally your employer is only entitled to know the potential side effects of any medications you are taking, not the names of the medications.

Medical cannabis should be treated no differently than other prescription medications in this sense. Further, your employer should normally provide you with notice or seek your consent before collecting personal information about you.

Equally concerning, however, is your employer’s failure to accommodate your return to work, seemingly based on the fact that you are using medical cannabis to treat your pain.

The law concerning accommodation involving medical cannabis use is still developing in Canada; nonetheless the duty to accommodate does apply. Legally, employers are required to accommodate an employee’s physical disability, such as your workplace injury, to the point of undue hardship.

The “undue hardship” test is difficult to meet and will not be met simply because you are using medical cannabis. Your employer should have determined what your actual limitations are, and then assessed whether those limitations could be accommodated.

At this point, your best course of action is likely to get in touch with an employment lawyer to canvas the possibility of making a complaint to the privacy commissioner, or of bringing a human-rights complaint or a wrongful dismissal action against your former employer.


Kyle Couch

President & CEO, Spectrum Organizational Development Inc., Toronto

Despite any company’s best health and safety efforts, accidents do happen and employees get hurt. It is very unfortunate that you were hurt; however, there are certain limitations to what you can expect from your health-care provider, the Workers Compensation Board (WCB) and your employer.

In most cases, your medical records are a private matter; however, through the Workplace Safety and Insurance Act, the WCB can access your medical records, without your consent, as they relate to your current situation, to ensure your treatment plan follows their guidelines and provide your employer with appropriate updates on your recovery.

While cannabis is currently available to patients in Canada who qualify, it is not currently covered under many WCB coverage programs. Even though your health-care provider issued you a prescription, it likely did not meet your WCB’s treatment guidelines and in turn your employer does not have to accommodate your leave based on this treatment option.
If cannabis is the only pain-management option that works for you, you can certainly continue to utilize it; however, you no longer qualify for covered short– or long-term disability.


Nancy G4
8 hours ago

This is what we always seem to see in this feature - a lawyer and and an employment consultant answering the same question, with two opposing takes. This query is a straight LEGAL question, though, and I would say only the lawyer has the correct answer.

1 day ago

If Kyle Couch is correct, the injured individual has another question for the panel: Can I act against the MD that offered me medical cannabis without informing me that taking this drug would nullify my disability agreement with WCSB? Especially claiming their expertise in pain management, one would expect familiarity and clarity around disability claims.
2 Reactions

1 day ago

Does it surprise anybody that WCB is trying to screw the worker in any way it can. I despise them with every bit of my soul
1 Reaction

KEW in Montreal
1 day ago

Did I understand correctly that because this person was prescribed medical cannabis for pain management, they would have NO coverage from the WCB going forward? That is completely crazy! And at the least, the person would have to be informed of this possibility, so as to have the option of refusing the prescription.
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