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What rights does a worker returning from pregnancy leave have? • Can employers ask staff to take a lie detector?

What rights does a worker returning from pregnancy leave have?

Question:
I am an employee who will be returning from pregnancy leave shortly. I work in Ontario. What are my rights to return to the job I previously held?

Answer: The Employment Standards Act, 2000, provides specifically for the rights of an employee returning from either a pregnancy, parental or emergency leave.

The act states that following the conclusion of an employee’s leave, the employer must reinstate the employee to the position she most recently held, if it still exists, or to a comparable position if it does not. But this obligation does not apply if the employee’s employment is terminated for legitimate business reasons that are totally unrelated to the fact the employee took a leave.

The onus on the employer to establish the employee was dismissed for reasons solely unrelated to the leave is a significant one. The employer will have to provide proof there was absolutely no connection between the pregnancy leave and the termination of employment.

Accordingly there is a significant onus upon the employer to reinstate you to the exact position you held prior to your pregnancy leave. In order for the employer to avoid this obligation it will have to establish the position legitimately no longer exists. Of course, if that is the case, the employer is still required to provide you with a comparable position. In either case you must be paid at least as much as you were earning before the leave. Furthermore, if you would have received an increase in pay had you not been on leave, you must be given the higher pay on returning to work.

The Ministry of Labour tends to take complaints relating to this section quite seriously, and pursues them vigorously. The public policy which informs the legislative provisions relating to return to work from pregnancy leave is that no employee should be disadvantaged as a result of the decision to take a pregnancy leave.

If you are a unionized employee, you should check your collective agreement for provisions relating to maternity leave. Many collective agreements will provide for better maternity leave rights and benefits than the basic minimum rights found under employment standards legislation.



Can employers ask staff to take a lie detector?

Question:
Can an employer request its employees undergo lie detector tests?

For the most part Canadian employment standard acts do not contain comprehensive prohibitions against the use of lie detector tests in the employment context. The major exceptions are the unique provisions in the Ontario and New Brunswick employment standards acts that specifically prohibit employers from either asking or actually requiring an employee or job applicant to take a lie detector test. Not only is the employee expressly entitled to refuse to submit to such a test, but the employer cannot directly or indirectly require, enable or influence, directly or indirectly, an employee to take or submit to a lie detector test.

Despite their apparent breadth, these prohibitions do not completely outlaw the use of lie detector tests. Employers are still entitled to suggest to an employee that he consider submitting voluntarily to a test, and even to arrange an appointment for the employee. It would appear the mischief at which the section is aimed is “pressure” by the employer with actual or potential employment-related consequences for the employee.

Employers must consider the increasing awareness and legislative protection of privacy rights in Canada. It is possible that if any information obtained through the use of a lie detector test was obtained without the employee’s consent, or if such information is used for a purpose other than that for which it was collected, there would be a violation of the employee’s personal data protection. At present, the Personal Information Protection and Electronics Act (PIPEDA) applies to employment relationships in a “federal work, undertaking or business” (such as banking, telecommunications or airlines). On Jan. 1, 2004, the federal act began to apply to non-federal organizations unless a province has enacted legislation that is “substantially similar” to PIPEDA. To an employer, the single most important principal to remember is to get consent.

While Canadian employers, with the exception of Ontario and New Brunswick, can require employees to take lie detector tests, it is still advisable that when doing so, they obtain their employees’ consent.

Peter Israel is the head of Goodman and Carr LLP’s Human Resource Management Group. He can be reached at (416) 595-2323 or pisrael@goodmancarr.com

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