In-Depth Analysis

Employers’ Advisor June 2023

Articles:

  1. Artificial Intelligence is Coming to Your Workplace: How Employers Can Prepare
  2. Termination of Employment for Non-Compliance with a Mandatory Vaccination Policy Upheld in the Hospital Context
  3. Human Rights Tribunal Finds the Job Requirement of “Permanent Eligibility to Work in Canada” to be Discriminatory

Artificial Intelligence is Coming to Your Workplace: How Employers Can Prepare

Christian Rocca

Chances are that over the past several months, you or someone you know has used an AI system like ChatGPT or other chatbots. These systems, which can conduct tasks, generate text and answer questions at high speeds, have become a popular productivity and/or creativity hack for many people, especially when it comes to their work. Some of the tasks that AI systems like ChatGPT can perform, and save workers and their employers time on, include:

  • Assisting with research;
  • Letter and email drafting;
  • Creating job descriptions and advertisements; and
  • Writing reports and articles.

While AI systems can bring a number of positives for employers and employees, they also pose a number of risks. Below is a brief overview of the pertinent risks associated with the use of AI systems in the workplace, followed by some best practices employers can utilize in order to mitigate those risks.

Unreliable Information

The information generated by AI systems is not always accurate, even though the system can provide citations to back up its claims that appear to be perfectly legitimate. In some cases, citations provided by AI systems have been found to be fake. This can be particularly problematic for employers if their employees are not independently confirming the accuracy of the information they use that is generated by the system.

Confidentiality, Privacy, and Intellectual Property Infringement

Users of AI systems such as ChatGPT do not have any control over what the system does with the information fed into it, and therefore there is a risk of confidential information being inadvertently disclosed to other users should an employee use such information in their prompts to the system.

Those who use information generated from AI systems also usually do not know where the information was obtained from, and the use of such information may result in an infringement on the privacy or IP rights of a third party in relation to that information.

Biased Outputs and Discrimination

Biases can be ingrained into AI systems based on the data fed into them, which can result in potentially discriminatory outputs from these systems. This could occur, for example, when using AI systems to help select a job candidate, as the AI system could make a hiring decision based on discriminatory grounds as a result of biases previously ingrained into it. This could expose an employer to human rights claims and could have a negative effect on an employer’s diversity, equity and inclusion efforts.

Malicious Uses by Employees and Third Parties

AI systems are becoming more advanced at simulating individuals’ voices, speech patterns, writing style and other identifying characteristics. Such systems could therefore be used by employees to create fake (or “deepfake”) content about other employees, which could become the basis for, or evidence considered in, workplace investigations. AI systems may also be used by third-party hackers in order to create more sophisticated phishing scams. It could therefore become more difficult to discern between a legitimate email or voice mail from a co-worker, and a phishing communication falsely purporting to have been sent that co-worker.

Best Practices for Employers

The adoption of AI systems into workplaces is still in its infancy, and as the technology is improved the associated risks will only become more pronounced. With this in mind, employers can take the following actions to help mitigate the risks associated with the use of AI systems in their workplaces:

  • Employers should examine their existing policies that are applicable to the use of AI systems, such as policies pertaining to privacy, confidentiality, and computer use, and determine whether updates to those policies are necessary in order to account for the use of AI systems. In some cases, employers may find it necessary to create a separate policy for the use of AI systems.
  • Educating employees on the proper and responsible use of AI systems, regardless of whether the employer has or has not implemented AI systems in its workplace.
  • As the sophistication of AI systems continues to advance at a rapid pace, employers will need to keep abreast of changes in the technology, in order to ensure that their strategies and policies addressing such systems remain up-to-date and effective.
  • Employers will need to remain informed as to any legal and regulatory frameworks, restrictions or even prohibitions regarding their use of AI systems in the workplace. Some jurisdictions may already have legislation in place that impacts the use of AI systems, and additional legislative action could be taken to further regulate their use. For example, Canada recently proposed legislation (the Artificial Intelligence and Data Act) that, if passed into law would regulate the development and use of AI systems.

The ever-growing capacity and adoption of AI systems has created many uncertainties regarding the extent and the manner in which they may be utilized in (among other things) the context of the employment relationship. We encourage you to contact a Mathews Dinsdale lawyer to discuss how your organization can mitigate the risks associated with the use of AI systems in your workplace.

Termination of Employment for Non-Compliance with a Mandatory Vaccination Policy Upheld in the Hospital Context

Selina Habib

The recently released decision of Lakeridge Health v. CUPE, Local 6364 is the first Ontario arbitration decision to decide whether an employer had just cause to terminate individual employees who had violated the employer’s mandatory vaccination policy. In that case, the arbitrator upheld the Hospital’s decision to terminate the unvaccinated employees

The Vaccination Policy

In fall 2021, Lakeridge Health issued an updated Mandatory Vaccination Policy that required all its employees to be fully vaccinated against COVID-19 as a condition of employment.

The Policy indicated that employees of Lakeridge would need to submit proof of having received two doses of the vaccine or alternatively request a medical exemption. If an employee did not submit proof of a first dose by October 22, 2021, the Policy stated that they would be placed on an unpaid leave of absence. If the employee did not comply with either of these options or indicate their intent to comply with the Policy, they would be terminated for cause by November 5, 2021.

The Union’s Position

The Union’s initial position was that the policy was unreasonable in placing unvaccinated employees on unpaid leaves of absence in October 2021 and in then terminating those who remained unvaccinated. In its final submissions, the Union changed its position to acknowledge that the Hospital could reasonably have placed unvaccinated employees (who did not work remotely) on unpaid leaves of absence until June 2022, when it allegedly should have returned them to active employment. The Union maintained the Hospital did not have just cause to terminate the employment of any unvaccinated employees.

The Arbitrator’s Decision

The Arbitrator concluded that the Policy was reasonable in its application to all employees, including those who worked remotely. The Arbitrator decided that there should be no exception for employees who worked remotely, because such an exception would reduce the employee complement available to the Employer for deployment to work on-site in the Hospital. Arbitrator Herman also distinguished earlier case law which found discipline to be inappropriate for the failure to take certain medicine or to receive certain vaccines, stating that the COVID-19 pandemic was a unique circumstances that caused a significant numbers of deaths and life-threatening illnesses and continued to do so.

With respect to the terminations of employees who remained unvaccinated, Arbitrator Herman determined that it was appropriate to consider the reasonableness of the terminations as of the time they were implemented. When the Policy was issued, vaccines had been confirmed to be the best protective measure against infection, transmission and symptoms. The Hospital acted reasonably in concluding that it would likely have far more vacancies to fill if employees were kept on unpaid leaves and not terminated, because employees would try to find work elsewhere while waiting to be allowed to return to work at the Hospital and the incentives to get vaccinated would be lower. This would have materially hampered the Employer’s ability to recruit and retain employees.

The Arbitrator also held that because the Employer was a large hospital that provided essential health care services to the community, a failure of all active employees to be vaccinated against COVID-19 would negatively affect the Hospital’s ability to provide its health care services to the public. The need to protect the health of its employees and patients, and to act in a way that enabled the Hospital to continue to provide its services in a relatively safe manner, outweighed the interests of individual employees to preserve their employment status when they declined to get vaccinated. None of the Union’s suggested alternatives, including the use of Rapid Antigen Tests in lieu of getting vaccinated or redeploying unvaccinated employees in different ways, were sufficient to address the issues confronting the Hospital in the context of the COVID-19 emergency.

The Arbitrator did, however, conclude, the short time frame within which the Hospital terminated its employees after placing them on an unpaid leave of absence (several days to a week) was unreasonable as it was not enough time for an employee to decide whether or not to be vaccinated. The arbitrator ruled that allowing for a four-week interval to elapse before an employee on leave could be terminated would be deemed appropriate.

Concluding Thoughts

Many previous Canadian arbitration decision upheld the validity of mandatory vaccination policies. However, those decisions were decided in the context of policy (rather than individual) grievances, and indicated that whether the employer had just cause to terminate individual employees for non-compliance with such policies would be left to be determined in the context of individual termination grievances. Lakeridge is the first decision to confirm that a continued refusal to be vaccinated can be grounds for termination for just cause, at least in the health care sector. This decision will probably have a significant influence on how the (many) similar outstanding grievances and litigation facing other employers will be decided in the days to come.

Human Rights Tribunal Finds the Job Requirement of “Permanent Eligibility to Work in Canada” to be Discriminatory

Prateek Awasthi

In the recent case of Imperial Oil Limited v. Haseeb, 2023 ONCA 364, the Ontario Court of Appeal upheld the decision of the Human Rights Tribunal of Ontario (“HRTO”), and found that an employer’s requirement that job applicants must be Canadian citizens or permanent residents constituted discrimination in employment contrary to Ontario’s Human Rights Code (“the Code”). In light of this decision, employers across Canada should review their job requirements, and revise those requirements if necessary, in order to ensure conformity with applicable human rights legislation.

Background

The appellant, Haseeb, was an engineering student in his final semester of university. Upon graduation, as a citizen of Pakistan on a student visa, he was eligible to apply for a post-graduate work permit (“PGWP”), which would allow him to work full-time, anywhere in Canada and for any employer, for up to three years. During his last semester, Haseeb applied for an entry-level job with Imperial, which had a policy that required permanent eligibility to work in Canada, as established by proof of either Canadian citizenship or permanent resident status, as a condition of employment. During his application and interview process, when he was asked multiple times whether he was “eligible to work in Canada on a permanent basis”. Each time, he answered, untruthfully, that he was a permanent resident, as he was fearful he would be screened out of the competition.

As the top candidate, Haseeb was offered the position, conditional upon him providing proof that he was “eligible to work in Canada on a permanent basis.” Haseeb was required to provide that proof in the form of a Canadian birth certificate, a Canadian citizenship certificate, or a Canadian certificate of permanent residence. At that time, he informed Imperial that he was an international student and would receive a PGWP upon graduation. He indicated that he intended to obtain a permanent residency before the PGWP expired, as he expected to settle in Canada on a permanent basis. Imperial responded by withdrawing its offer and inviting Haseeb to re-apply if he became eligible to work in Canada on a permanent basis in the future. Haseeb filed an application with the HRTO alleging discrimination on the basis of citizenship.

The Decision

After thirteen days of hearings, spanning eight months, with evidence from multiple witnesses and over four hundred documents, the HRTO ruled in favour of Haseeb, finding that Imperial had discriminated against the Haseeb on the basis of citizenship by imposing an employment condition of permanent eligibility to work in Canada which had to be proved by Canadian citizenship or permanent resident status.

The HRTO did not accept Imperial’s argument that Haseeb’s dishonesty was the sole reason for withdrawing its job offer. The HRTO ruled that even if Haseeb’s dishonesty was one factor in Imperial’s withdrawal of the job offer, his citizenship status was also a factor in that decision, and thus the decision was tainted by discrimination on the basis of citizenship. The HRTO also determined that Imperial had not established that the requirement

Imperial sought reconsideration of the decision, but the HRTO declined. Imperial then brought an application for judicial review, which was granted by the Divisional Court. The Divisional Court disagreed with the HRTO’s decision, and held that the Code did not prohibit discrimination based on “permanent residence” or “permanent eligibility”. On appeal, the Ontario Court of Appeal set aside the ruling of the Divisional Court, and restored the decision of the HRTO.

The Court of Appeal concluded that Imperial’s policy denied eligibility to non-Canadian citizens who were otherwise qualified through a PGWP to work without restriction in Canada for up to three years. The fact that Imperial made an exception for one class of non-Canadian citizens (permanent residents) did not insulate its policy from being discriminatory on the basis of citizenship. The Court of Appeal also dismissed other objections raised by Imperial, finding that the HRTO’s decision was reasonable.

Key Takeaways

It is not uncommon for job postings to include requirements related to eligibility to work in Canada. Following the decision of the Court of Appeal, requirements for Canadian citizenship or permanent residency will likely be found to be discriminatory, unless they are authorised by law. Instead, employers should consider replacing such restrictions with a broader requirement that applicants be eligible to work in Canada, which may include open work permits, such as those provided under the PGWP.

Employers should review their job posting requirements, and revise them if necessary, for conformity with the applicable human rights legislation. The Haseeb decision is a reminder that job applicants enjoy human rights protections even before they are hired or formally employed, and employers must remain vigilant against any potential discrimination in the job search process.

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This newsletter is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.

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