Humaniqa HR Blog

Time Off to Vote in the Federal Election October 09 2019

With the federal election quickly approaching on October 21, 2019, employers across Canada should review the rules regarding their obligation to provide employees with time off of work in order to vote.  It should be noted that the below applies to employees reporting to voting stations on October 21, 2019 only and does not apply to employees voting on advance polling days.

Employer Obligations

Under the Canada Elections Act, every employee who is eligible to vote in the federal election is entitled to three consecutive hours off of work in order to vote. If an employee’s work schedule on voting day allows for three consecutive hours free from work, employers are not obligated to grant the employee more time away from work during their shift to vote. However, if an employee’s schedule does not allow for three consecutive hours off, employers must grant at a minimum the paid time off that would be required to provide the employee with three consecutive hours off to vote, with pay. Time off for voting can be granted at the time of day that best suits the convenience of the employer.

Employers cannot make any deduction from an employee’s pay or impose a penalty of any kind on an employee for taking time off to vote. The Act also states that no employer shall interfere with the granting of time off to vote through intimidation, undue influence, or any other means. An employee can waive their right to time off to vote, but in these cases, employers may have to prove that the waiver was voluntary.

This law does not apply to employees of transportation companies (a company that transports goods or passengers by land, air, or water) who is employed outside of their polling division in the operation of a means of transportation, if the three hours cannot be allowed without interfering with the transportation service.

Examples

Across the country, polls are open for twelve hours and voting hours vary by time zone. To view the hours in your time zone, please click here. In the below examples, voting stations are assumed to be open from 9:30 am to 9:30 pm.

Example #1 – Employee scheduled to work from 8:30 am to 4:30 pm. The employer would not have to grant the employee time off from work because the employee has at least three consecutive hours outside of their regularly scheduled shift to vote (from 4:30 pm to 9:30 pm). 

Example #2 – Employee scheduled to work from 9:30 am to 7:30 pm. Since the employee does not have three consecutive hours outside of their scheduled shift to vote, the employer must provide them with time off of work. The employer has three options available to them:

  1. First, the employer can alter the employee’s start time to 12:30 pm. This would allow the employee three consecutive hours between 9:30 am and 12:30 pm to vote. Here, the employee must be paid for the three hours as if their shift started at 9:30 am.
  2. Second, the employer could allow the employee to leave work early. If the employee left work at 6:30 pm instead of 7:30 pm, the employee would have three consecutive hours from 6:30 pm to 9:30 pm to vote. However, the employee must be paid for the one hour difference as if their shift ended at 7:30 pm. 
  3. The third option is to grant the employee three consecutive, paid hours off of work during their shift to vote. 

Failure to comply with these provisions of the Act is an offence and could result in severe fines and/or imprisonment. To view the Canada Elections Act, please refer to our Laws tab. If you have questions about the contents of this newsletter, please do not hesitate to reach out to our OnDemand team.

 

Temps accordé aux employés pour voter aux élections fédérales

À l’approche des élections fédérales du 21 octobre 2019, les employeurs de partout au Canada devraient revoir les règles concernant leur obligation d’accorder du temps aux employés pour voter. Il convient de noter que ce qui suit s’applique aux employés qui se présentent aux bureaux de vote le 21 octobre 2019 seulement et ne s’applique pas aux employés qui votent par anticipation les jours de vote par anticipation.

Obligations de l’employeur

En vertu de la Loi électorale du Canada, tout employé qui est habile à voter doit disposer de trois heures consécutives pour aller voter pendant les heures de vote, le jour du scrutin. Si l’horaire de travail d’un employé le jour du vote permet trois heures consécutives hors du travail, les employeurs ne sont pas obligés d’accorder à l’employé plus de temps d’absence du travail pendant son quart de travail pour voter. Toutefois, si l’horaire d’un employé ne permet pas trois heures de congé consécutives, les employeurs doivent accorder au moins le congé payé qui serait nécessaire pour lui accorder trois heures de congé consécutives pour voter, avec salaire. Le temps de congé pour le vote peut être accordé au moment de la journée qui convient le mieux à l’employeur.

Il est interdit à l’employeur de faire des déductions sur le salaire d’un employé ou de lui imposer une pénalité pour la période qu’il doit lui accorder pour aller voter. La loi stipule également qu’il est interdit à l’employeur d’empêcher, par intimidation, abus d’influence ou de toute autre manière, son employé habile à voter de disposer de trois heures consécutives pour aller voter. Un employé peut renoncer à son droit d’aller voter, mais dans ce cas, l’employeur pourrait devoir démontrer que la renonciation était volontaire.

Cette loi ne s’applique pas aux employés des sociétés de transport (une entreprise qui transporte des marchandises ou des passagers par voie terrestre, aérienne ou maritime) qui sont employés à l’extérieur de leur section de vote dans l’exploitation d’un moyen de transport, si les trois heures ne peuvent être autorisées sans interférer avec le service de transport.

Exemples

Dans l’ensemble du pays, les bureaux de vote sont ouverts pendant douze heures et les heures de vote varient selon le fuseau horaire. Cliquer ici pour afficher les heures dans votre fuseau horaire. Dans les exemples ci-dessous, l’on suppose que les bureaux de vote sont ouverts de 9 h 30 à 21 h 30.

Exemple 1 – Employé censé travailler de 8 h 30 à 16 h 30. L’employeur n’aurait pas à lui accorder de congé puisque l’employé dispose d’au moins trois heures consécutives en dehors de son quart de travail régulier pour voter (de 16 h 30 à 21 h 30). 

Exemple 2 - Employé censé travailler de 9 h 30 à 19 h 30. Puisque l’employé ne dispose pas trois heures consécutives en dehors de son quart de travail pour voter, l’employeur doit lui accorder du temps pour voter. L’employeur a le choix entre trois options :

  1. Premièrement, l’employeur peut modifier l’heure du début du quart de travail de l’employé à 12 h 30. Cela permettrait à l’employé de voter entre 9 h 30 et 12 h 30. Dans ce cas, l’employé doit être payé pour les trois heures comme si son quart de travail avait débuté à 9 h 30.
  1. Deuxièmement, l’employeur pourrait permettre à l’employé de quitter le travail plus tôt. Si l’employé quittait son travail à 18 h 30 au lieu de 19 h 30, l’employé disposerait donc de trois heures consécutives pour voter, soit de 18 h 30 à 21 h 3 Toutefois, l’employé doit être rémunéré pour cette heure de congé, comme si son quart de travail se terminait à 19 h 30.
  1. La troisième option consiste à accorder à l’employé trois heures de travail payées pendant son quart de travail.

Le non-respect de ces dispositions de la Loi constitue une infraction qui pourrait entraîner de graves amendes ou des peines d’emprisonnement. Pour consulter la Loi électorale du Canada, rendez-vous à notre onglet Lois. Pour toute question sur le contenu de ce bulletin, n’hésitez pas à communiquer avec notre équipe SurDemande. 


Changes to the Canada Labour Code August 29 2019

Federal employers should be prepared to comply with the upcoming changes to the Canada Labour Code. Below is a brief summary of the major amendments imposed by Bill C-63, the Budget Implementation Act, 2017 and Bill C-86, the Budget Implementation Act, 2018 which will take effect on September 1, 2019.

Changes Imposed by Bill C-63 

  • Flexible Work Arrangements: employees with at least six months of service have the right to request, in writing, flexible work arrangements regarding their work location, hours of work, and schedule. Employers must approve such requests unless they have reasonable grounds for not doing so (e.g., insufficient work available to the employee).
  • Overtime: employees may refuse overtime in order to carry out family responsibilities, so long as they have first taken sufficient steps to address such responsibilities before the refusal. Additionally, subject to certain conditions, an employee who works overtime can be granted 1.5 hours of paid time off for each overtime hour worked, if agreed upon by the employee and employer in writing.
  • Shift Change Notice: employers must provide employees with at least 24 hours of written notice of a shift change or extension, subject to exceptional circumstances.
  • Extended Bereavement Leave: bereavement leave entitlement is extended from 3 paid days to 3 paid plus 2 unpaid days of leave for the passing of a family member.
  • New Leaves: the new Leave for Victims of Family Violence provides an employee up to 5 paid days and 5 unpaid days of leave per calendar year who is a victim, or whose child is a victim, of family violence. Leave for Traditional Aboriginal Practices is also be added, which provides Aboriginal employees with 5 unpaid days per calendar year to participate in traditional Aboriginal practices as prescribed by the Act.

Changes Imposed by Bill C-86

  • Vacation: employees are entitled to increased vacation pay and time as follows:
    • 2 weeks of vacation after 1 year of service at 4% vacation pay
    • 3 weeks of vacation after 5 years of service at 6% vacation pay
    • 4 weeks of vacation after 10 years of service at 8% vacation pay
  • Notice of Schedule: employers must provide at least 96 hours of written notice of an employee’s work schedule before the start of their first work period. Employees have the right to refuse to work any shifts that begin within the 96 hour period, subject to exceptional circumstances.
  • Breaks and Rest Periods: employees shall be entitled to at least a 30 minute unpaid break for every 5 hours of consecutive work and a rest period of at least 8 consecutive hours between shifts.
  • Medical and Nursing Breaks: employees shall be entitled to unpaid breaks necessary for medical reasons. Employees who are nursing are also entitled to unpaid breaks to nurse or express breast milk.
  • Medical Leave: Sick Leave has been replaced with Medical Leave, which has been expanded to include a leave for personal illness or injury, organ donation, or medical appointments. The entitlement remains a leave of up to 17 weeks. If the leave is 3 days or more in duration, an employer may request a certificate from a health care practitioner as proof of entitlement.
  • Personal Leave: employees are entitled to 5 days of leave for personal illness or injury, family responsibilities related to healthcare or education, urgent matters, and to attend their own citizenship ceremony. If an employee has worked for 3 or more consecutive months with the same employer, the first 3 days of this leave shall be paid.
  • Court or Jury Duty Leave: employees are entitled to unpaid leave for court or jury duty. There is no limit on the length of this leave.
  • Medical Certificate: the requirement to provide a certificate from a medical practitioner as proof of entitlement in certain circumstances has been amended to certificates from a “health care practitioner” as defined by the Act.

Takeaways  

It is important to note that the above changes to the Canada Labour Code only apply to federally regulated employers (e.g., banks, telecommunications, etc.). Employers who are bound by federal legislation should update their policies, if they have not already done so, in accordance with these amendments no later than September 1, 2019. If you have any questions about Bill C-63, Bill C-86, or the impact these changes will have on your workplace, please do not hesitate to ask one of our HR advisors through our OnDemand ticketing system.


Tips for a Successful Disciplinary Meeting July 19 2019

Having a disciplinary meeting with an employee is typically an uncomfortable task for managers and supervisors. The focus of this article is to assist employers in viewing such meetings as positive tools for employee retention and growth, rather than focusing on strictly punitive conversations and outcomes. Prior to issuing discipline, we strongly recommend conducting a thorough investigation if allegations of inappropriate conduct were submitted by another employee, if you did not witness the behaviour first-hand, or if there is little or no evidence suggesting the employee acted inappropriately.

Tips for a Successful Meeting 

Before the Meeting

  1. Review

Review any notes from the incident investigation, if applicable, as well as the employee’s personnel file and disciplinary record. If the same or similar behaviour has occurred in the past, this might warrant different or more severe discipline and correctional measures. You may need to speak with the employee’s immediate supervisor to gain more information.

  1. Prepare

Regardless of the severity of discipline issued (verbal warning, written warning, or suspension) it is imperative that the disciplinary notice is documented in writing.  We suggest stating in a letter: (1) a description or summary of their conduct, (2) citing any past behaviour or discipline which is applicable to the severity of discipline, (3) the type of discipline being issued, (4) corrective measures or improvement plan, (5) consequences should the incident/behaviour happen again.    If a collective agreement (in the case of unionized employees) or company policy includes clearing past discipline after a specific period of time, be sure not to reference discipline that is stale dated. One copy should be retained in the employee’s personnel file, and one should be provided to the employee at the end of the meeting.

  1. Schedule and Hold the Meeting

The meeting should be scheduled during the employee’s shift in a quiet, private room. When asking the employee to attend the meeting, let them know you wish to discuss a performance or behaviour concern, or wish to discuss the outcome of the investigation. In the case of unionized employees, let them know they have the right to bring union representation. Their supervisor or manager should attend with another supervisor manager or HR personnel.

During the Meeting

  1. Explain Clearly

Thank the employee for attending the meeting and state why it was called. Begin by stating the type of discipline being issued, then clearly and calmly explain to the employee why their behaviour was inappropriate. You should to cite or provide the policy in which the employee acted in contravention of. Make sure you don’t simply accuse the employee in the meeting, as this is sure to create an intimidating environment. Rather, state to the employee that they are of value to your organization and that you wish to take corrective measures and help them to improve this behaviour in the future.

  1. State Corrective Measures

Explain goals for the employee to achieve and how achieving these goals will help your organization moving forward. Ensure these objectives are clear and measurable. Measurable goals may include reviewing and signing a policy, additional training on a procedure or process, or implementing a full performance improvement plan. Don’t be afraid to use the letter you previously drafted as a script during this stage so you don’t miss any pertinent information. Ensure the conversation is focused on education, performance improvement, and trying to prevent further incidents from occurring rather than placing blame on the employee.

  1. Let the Employee Talk

It is important to make sure that the employee feels like that have had a chance to bring forth their side and answer the allegations made against them. This is especially true if you have not conducted an investigation into the incident. Corrective action is more likely to be accepted by the employee if they genuinely feel like they have been able to get their point across and have had all of their questions answered. 

Keep in mind that the above tips are more likely to be successful if your organization has clear, written, and articulated policies and procedures in place. Without written policies, an employee may be uncertain as to why their behaviour was unacceptable. For assistance in preparing for disciplinary meetings, please do not hesitate to submit a ticket through the OnDemand tab. For policy and procedure templates, or a performance improvement plan template, please visit our Resource Centre.

 


Terminating a Probationary Employee May 28 2019

All Canadian jurisdictions have defined periods relating to employee probation, generally falling within three to six months. All jurisdictions allow for employees to be terminated without any notice or pay in lieu within the probationary window, so long as the termination is for non-discriminatory reasons. This is commonly referred to as the “statutory probationary period” and is often used by the employer to determine whether or not an employee is suitable for a given role before committing to long-term employment.

Some employers elect to extend an employee’s statutory probationary period as part of their employment contract. This is particularly common when recruiting for executive roles. This practice has led to a common misconception; that the employment contract can supersede the legal requirement.

Can probationary employees be terminated without notice? 

It should not be assumed that employers can avoid termination notice requirements or common law obligations simply by extending the probationary period within an employee’s contract. Any probationary period that is longer than the statutory probationary period will result in the requirement to provide statutory notice or pay in lieu of notice. For example, in Ontario, the statutory probationary period is three months. If an employee were to be hired with a probationary period of six months as defined in their employment contract, they would still be entitled to one week of termination notice after working three months or more under the Employment Standards Act.

Generally speaking, an employment contract is only assumed to supersede the law when it provides the employee with a greater right or benefit than the minimum requirements as prescribed.

It should be noted that the standard for terminating an employee while on probation is different for unionized employees. In this case, employers have to demonstrate that the employee is “unsuitable” for the job and are being terminated for a non-discriminatory reason. Unsuitability must be reasonable and the employer must be able to show that the probationary employee was provided with a fair opportunity to improve before they were terminated.

What does this mean for employers?

In order to minimize liability for terminating an employee during their probationary period, we highly recommend that employers explain the reason for having a probationary period within an employee’s offer letter or employment contract. Employers should also include an employee’s notice, or pay in lieu of notice, entitlement if they are terminated within the statutory probationary period or the contractual probationary period (if longer than the statutory period).

For a template of an offer letter, employment contract, or a probationary period policy, please navigate to our Resource Centre. If you are an OnDemand subscriber and you have a question regarding your termination clause, or if you are dealing with a situation regarding the termination of a probationary employee, please do not hesitate to reach out to our OnDemand team.


Ontario’s Bill 47, the Making Ontario Open for Business Act December 10 2018

On November 21, 2018 Bill 47, the Making Ontario Open for Business Act (“the Act”) received Royal Assent. Many of the changes brought forward by this Act will take effect in less than a month as outlined below.

The below charts summarize Bill 47 and highlight how the Act impacts previously made changes to Ontario’s Employment Standards Act by Bill 148, including which Bill 148 provisions have been repealed and maintained.

Changes to the Employment Standards Act

Replaced Provisions 

Provision Name

Repealed Bill 148 Provision

New Bill 47 Provision

Effective Date

Personal Emergency Leave (PEL)

All employers must provide 10 days of PEL per calendar year, the first 2 paid and the following 8 unpaid.

All employees are entitled to the following leaves per calendar year:

-          3 unpaid days of sick leave

-          3 unpaid days of family responsibility leave

-          2 unpaid days of bereavement leave

January 1, 2019

Medical Note

Employers cannot require an employee to provide a medical note as a condition of receiving PEL.

No longer a restriction on employer’s ability to request a medical note from a qualified healthcare practitioner as a condition to receiving sick leave.

January 1, 2019

Minimum Wage

General minimum wage increase to $15.00 per hour effective January 1, 2019.

The current general minimum wage of $14.00 will be frozen until 2020, when increases will become tied to inflation on October 1 of every year.

October 1, 2020

 

Amended Provisions

Provision Name

Current Bill 148 Provision

New Bill 47 Provision

Effective Date

Independent Contractor Classification

The onus of proof that an employee is not an independent contractor is on the employer.

The burden is no longer on an employer to prove that a worker is an independent contractor rather than an employee.   

January 1, 2019

Equal Pay for Equal Work (Sex)

Employers are still prohibited on basing pay differences on sex, but employees have a right to request a review of their rate of pay from their employer.

This prohibition remains in effect, but the right of an employee to request a review with a written response from their employer has been repealed.

January 1, 2019

Holiday Pay Calculation

Holiday pay is to be calculated based on the regular wages earned by an employee in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in that pay period.

The holiday pay calculation has been reverted to the pre-Bill 148 formula, which is the total amount of regular wages earned and vacation pay payable to the employee in the 4 weeks before the week of the public holiday, divided by 20.

January 1, 2019

 

Note: Implemented on an interim basis as of July 1, 2018.

 

Repealed Provisions 

Provision Name

Repealed Bill 148 Provision

New Bill 47 Provision

Effective Date

Equal Pay for Equal Work – Employment Status

Employers cannot base differences in pay on employment status and employees have the right to request a review of their rate from their employer.

Repealed, therefore no remaining obligation.

January 1, 2019

Schedule or Work Location Changes

Employees with a minimum of 3 months of continuous service can submit a request to change their schedule or work location.

Repealed, therefore no remaining obligation.

Will not come into effect (was scheduled for January 1, 2019)

On-Call Employees, 3 Paid Hours

If employees are on-call and not called into work, or are called in and work less than 3 hours despite being available to work longer, then they must be paid 3 hours at their regular rate.

Repealed, therefore no remaining obligation.

Will not come into effect (was scheduled for January 1, 2019)

Cancellation Pay

If an employer cancels an employee’s scheduled or on-call shift within 48 hours of the scheduled start time, the employee must be paid for 3 hours at their regular rate.

Repealed, therefore no remaining obligation.

Will not come into effect (was scheduled for January 1, 2019)

96 Hour Rule

If employers do not provide at least 96 hours’ notice, employees can refuse to work or be on-call on a day that they were not scheduled to work or be on-call.

Repealed, therefore no remaining obligation.

Will not come into effect (was scheduled for January 1, 2019)

 

Maintained Provisions

 

Provision Name

Maintained Provision

Effective Date

Vacation

Vacation must be at least 2 weeks after 1 year of services, and at least 3 weeks after 5 years of service. Vacation pay must be at least 4% of wages after 1 year of service, and 6% after 5 years of service.

January 1, 2018

Extended Parental/ Pregnancy Leave

Parental leave is up to 61 weeks for employees to take pregnancy leave, and 63 weeks for all others eligible for parental leave. Pregnancy leave is up to 12 weeks for employees who experience a still-birth or miscarriage.

January 1, 2018

Critical Illness Leave

Critical illness leave is up to 17 weeks to provide care and support to a critically ill adult family member, and up to 37 weeks for a critically ill child under 18 years of age. 

January 1, 2018

Domestic or Sexual Violence Leave

Employees are entitled to five paid days of leave and five unpaid days, or up to 15 weeks if taken as full weeks, where the employee or their child experiences domestic or sexual violence or the threat of such.

January 1, 2018

Family Medical Leave

Family medical leave is up to 28 weeks per calendar year to provide care or support to a family member with a serious medical condition who has a significant risk of dying within a 26 week period.

January 1, 2018

3 Hour Rule

Employee who regularly work more than 3 hours per day must be paid 3 hours at their regular rate if they are scheduled to work, but work less than 3 hours despite being available for longer.

January 1, 2019

 

What This Means for Employers

Employers are encouraged to carefully review their current policies and procedures to assess which documents need amendment in light of these new requirements. 

This information is up to date as of December 1, 2018. To view Bill 47 in it’s entirely, please visit the Laws tab on our website. As of January 2, 2019, our website will be updated with Ontario policies, letters and forms that reflect all Bill 47 amendments. 

 


An Employer’s Guide to the Legalization of Marijuana in the Workplace October 16 2018

We are one day away from the legalization of the recreational use of cannabis in Canada. If you have not already done so, it is important to familiarize yourself with the answers to the commonly asked questions below. The bottom line here is that the legalization of marijuana does not mean employees can be impaired at work, which your company’s Drug and Alcohol policy should clearly state.

  1. Does legalization mean employees can be impaired at work?

It does not. Employers should prohibit the use of marijuana at work during working hours and from attending work while impaired. Workplace rules regarding non-medical use of marijuana should be outlined in your Drug and Alcohol policy. We recommend eliminating the language “illicit drugs” from your policy, and changing such instances to “drugs” in order to encompass marijuana.

  1. Does the duty to accommodate extend to medical marijuana? 

Yes. Employees must tell their manager immediately if they require accommodation due to the use of medical marijuana. Employees who have a drug and/or alcohol dependency may also be entitled to accommodation. Employers should follow similar accommodation measures as they would to an employee being on any other prescription medication, including obtaining limitations and restrictions from a qualified medical professional. Accommodation should be provided up until the point of undue hardship, and may include altering duties, removing the employee from a safety sensitive position, or providing more frequent breaks.

  1. What steps should we take if someone suspects an employee is impaired at work, or we smell marijuana on their person? 

If an employee suspects one of their co-workers are impaired or in possession of non-medical marijuana, they should alert their immediate supervisor or manager. If a supervisor or manager has reasonable suspicion that an employee may be impaired, they should immediately ask the employee to have a discussion in a private area, such as a boardroom. By having a discussion with the employee who you believe to be impaired, you will be able to gauge the employee’s level of impairment.  This will also provide the employee with an opportunity to either deny their impairment or provide an explanation for their behaviour. Any and all discussions and incidents should be recorded in the case that you continue to receive complaints about a specific employee or if your findings result in disciplinary action.

A manager must use his or her judgement to assess safety. If a manager has deemed an employee’s ability to safely perform their duties has been impaired by drugs or alcohol, the manager should immediately take steps as necessary to prevent the person from causing any injury to themselves or others. This may include sending the employee for drug and alcohol testing if your policy allows for such, and/or placing them on a temporary suspension.

  1. Are we legally allowed to test employees for drugs and alcohol?

The simple answer is yes. If employees are hired for safety sensitive positions, employers may want to implement pre-employment screening as part of the job offer. Employers may also want to test an employee for drugs and alcohol after a workplace accident if impairment is suspected as a contributing factor. In all cases, employees should be asked to provide written content to the testing and the release of the results to your company. You should also have a Drug and Alcohol Testing policy to outline when and how testing will occur. A sample of such policy can be found in our Policy Library.

As of the date this article was released, there is still no clear consensus on what constitutes marijuana impairment. It is important to remember that even after legalization, the right of individuals to use marijuana will never exceed the right of an employer to maintain a safe, drug-free work environment.  Please continue to monitor our website and your province’s legislature for updates on marijuana testing provisions.

 

Date: October 2018


Clearing The Smoke - Medical Cannabis and Your Employee Benefit Plan September 11 2018

The announcement of the legalization of marijuana in Canada has generated a wide range of conversations within the group benefits industry and amongst employers. While there are many factors, details and strategies that continue to be developed amongst carriers and the governing bodies, it is important to have a clear understanding on the existing landscape of cannabis coverage and the difference between the legalization of recreational marijuana and the drug’s deemed “medicinal” counterpart.  Employers will play a key role in providing education and guidelines as we enter this uncharted territory in order to clearly define what the expectations will be in the workplace.

In The News: While society continues to understand how it will evolve under the new legalization, long-time advocates for including medicinal cannabis to employee benefit plans gained traction when a Human Rights discrimination case was brought to the forefront of an already sensitive topic.

In the February 2017 case of Canadian Elevator Industry Welfare Trust Fund v. Skinner, the issue of whether a benefit plan could cover medical marijuana was brought to the Human Rights Board. The case created precedent because the court ruled in the claimant’s favour by holding that he faced unintentional discrimination because the exclusion of coverage was inconsistent with the purpose of the insurance plan. A little over a year later, in April 2018, Nova Scotia’s highest court overturned that decision by rejecting the original position and application test of discrimination. In the end, the higher court’s decision concluded that the claimant had access to all the medications available to any other eligible plan member. While he experienced an adverse impact due to those medications not being effective for him personally, he did not fall within a protected group described in the Human Rights Act.[1]

The higher court’s decision in Skinner remains the standard for how medical cannabis is currently treated by benefit plans. Specifically, most benefit plans contain parameters that clearly states prescription drugs need to be recognized by Health Canada with a Drug Identification Number (DIN) in order to be considered an eligible expense. As cannabis has yet to be assigned a DIN, per this definition, most benefit plans will not cover medicinal cannabis.

A Defined Line on the Unknown: One thing that has been made clear by the Government of Canada is that the rules governing medical cannabis (Access to Cannabis for Medical Purposes Regulations – ACMPR) will remain unchanged and not to be confused with the legalization of recreational marijuana[2].

The legalization of recreational marijuana has simply provided another legalized avenue for individuals wanting to consume cannabis for medical reasons. It is however important to know that unlike medical cannabis, recreational cannabis obtained outside of the ACMPR and Health Canada regulated providers would not be considered an eligible medical expense as currently defined under the Medical Expense Tax Credit, regardless if the cannabis is being used to treat a medical condition or not[3].

Even though the medicinal uses of cannabis date back over 3,000 years, the knowledge and research on the drug continues to prove difficult to researchers and has not been recognized by all governing associations. Currently, medical cannabis is neither a Health Canada approved “Drug” product nor a Licensed Natural Health Product. This means that the medical cannabis DOES NOT have a DIN or Natural Product Number (NPN); as such, it cannot be dispensed by a retail pharmacy. However, Canada Revenue Agency (CRA) has considered medical cannabis as an eligible medical expense and as a result, many group benefit plans can reimburse members for such claims through their Health Spending Account (HSA)[4].

So what’s the difference? The main difference between the two types of cannabis categories comes down to the regulations that govern them.

  • Medical cannabis is any cannabis obtained under the federal ACMPR, and used for medical purposes only.
  • Legal recreational cannabis is any cannabis obtained under provincial regulations for recreational use that will come in effect when recreational cannabis becomes legal. Cannabis obtained through this avenue is intended for recreational purposes.[5]

Today’s Landscape: There continues to be many unknown factors and confusing recommendations that makes it difficult to fully understand the medical cannabis world. While doctors can prescribe medical cannabis, it may come as a surprise to most that they often only indicate the dosage to consume in a day, with no indication of the type of strain to be used for treatment of the individual’s specific medical condition. With hundreds of strains currently available, individuals are left overwhelmed and confused when deciding which path to take for their course of treatment through medical cannabis.

And while medical cannabis does not currently have a DIN, most are unaware that currently there are 2 synthetic cannabinoids (Sativex & Cesamet) that do have a DIN and are currently eligible under some benefit plan providers’ drug formularies.

Benefit providers within the industry have begun to unveil their position on offering medicinal cannabis coverage to their policyholders. While they continue to develop their strategy with exposure in handling the changing landscape of the drug, many have included additional authorization requirements, limited eligible illnesses/ailments and plan maximums within the plan parameters. We recently polled providers to gain insight on the details of their offerings, if available.  The table below shows the different carriers with a summary of their position and offering details on covering medicinal cannabis.

Carrier

Insured Plan Coverage

ASO Plan Coverage

HSA Plan Coverage

Effective Date

Plan Details

Estimated Financial Impact

ClaimSecure

 

 

 

 

 

 

N/A

Coming Soon

Currently Available

October 1, 2018

-Medical Cannabis Referral Form required

-Limited eligible conditions

-Recommended Plan maximum of $2,500

Estimated claims $2,426/12 months

Desjardins

Currently Available* (included within the Extended Health Care Benefit)

 

*Not available for PerformPlus Groups

Currently Available

Currently Available

 

-Prior Authorization will be required

-Limited to 4 eligible indications

-Minimum age for approval is 21

-Annual maximums between $1,500-$6,000

-Rate impact dependent on plan design selection

Empire Life

Not available

Not available

Currently Available

To be determined

N/A

N/A

Great West Life

In Development (to be included within the Drug Benefit)

In Development

Currently Available

Target for late 2018-Early 2019

-All claims will require Prior-Authorization

To be determined

Greenshield

In Development (to be included within the Extended Health Care Coverage)

In Development

Currently Available

To be determined

-Prior Authorization will be required

-A benefit maximum will be put in place

-Limited to specific medical conditions

-Financial impact on insured plans to be determined

-Estimated Financial impact on ASO plans is claims of $10,000/annually (in the absence of a plan maximum)

Industrial Alliance

Currently Available

Currently Available

Currently Available

 

-Prior-Authorization required

-Annual maximum of $5,000

-Eligibility based on guidelines set out by Health Canada and the College of Family Physician’s

Underwriting review for client specific financial impact on premiums will be required

Manulife Financial

Currently Available

Currently Available

Currently Available

 

-Prior Authorization required

-Annual Maximum of $2,500

-Partnership with Shoppers Drug Mart to provide guidance on the drug (available September 1, 2018)

Approximate adjustment of 1.5% to the Drugs & Other rate

NexGenRx

N/A

Currently Available

Currently Available

 

-Partnership with CannTrust Inc.

-Optional coverage

 

RBC

In Development

Not Available

In Development

Target of Q1 2019

-Coverage will be provided on Cost Plus, HSA

-Will be optional under insured Extended Health Care plans

To be determined

SSQ

In Development

In Development

In Development

Within the next few months

-All details surrounding coverage are yet to be determined

To be determined

Sun Life

Currently Available

Currently Available

Currently Available

 

-More plan design control available within Extended Health Care plan design

-No controls available under HSAs.

-Estimated claims between $1,700 - $6,600 dependent on medical condition

- Recently quoted at a +20% increase to insured rates for an existing client

 

[1] Nova Scotia's highest court strikes down human rights decision over medical marijuana, CBC, The Canadian Press https://www.cbc.ca/news/canada/nova-scotia/court-decision-overturns-medical-marijuana-insurance-1.4617373

[2] Introduction of the Cannabis Act: Questions and Answers, Government of Canada (https://www.canada.ca/en/services/health/campaigns/introduction-cannabis-act-questions-answers.html#a11)

[3] Government of Canada, Medical Expenses, 2017 (https://www.canada.ca/en/revenue-agency/services/forms-publications/publications/rc4065/medical-expenses-2016.html)

[4] ClaimSecure eNews – Medical Cannabis Coverage Now Available – Medical Cannabis Coverage – July 2018

[5] 1. Introduction of the Cannabis Act: Questions and Answers, Government of Canada (https://www.canada.ca/en/services/health/campaigns/introduction-cannabis-act-questions-answers.html#a11)

 

Mise au point sur le cannabis médical et votre régime d’avantages sociaux

 

L’annonce de la légalisation de la marijuana au Canada est à l’origine de bien des débats au sein de l’industrie des avantages sociaux collectifs et chez les employeurs. Même si de multiples facteurs, détails et stratégies continuent à être mis au point chez les compagnies d’assurance et les organes directeurs, il est crucial de bien comprendre ce que représente actuellement le remboursement du cannabis, et la différence qui existe entre la légalisation de la consommation récréative de marijuana et celle de son pendant réputé « médicinal ».  À mesure que nous avançons en territoire inconnu, le rôle des employeurs dans le partage des renseignements et des directives sera clé pour définir clairement les attentes sur le lieu de travail.

Actualités : Tandis que la société tente toujours d’entrevoir son évolution dans le cadre de cette nouvelle légalisation, les défenseurs de la première heure souhaitant l’inclusion du cannabis médicinal aux régimes d’avantages sociaux des employés ont gagné du terrain lorsqu’une affaire de discrimination des droits de la personne a fait surface, le sujet étant déjà très sensible.

Dans l’affaire Canadian Elevator Industry Welfare Trust Fund v. Skinner en date de février 2017, la question de savoir si un régime d’avantages sociaux pouvait prendre en charge la marijuana médicale a été portée devant le Conseil des droits de la personne. L’affaire a fait jurisprudence; la Cour a statué en faveur du demandeur, soutenant qu’il faisait face à une discrimination non intentionnelle, parce que l’exclusion de la couverture était incohérente avec la finalité du régime d’assurance. Un peu plus d’un an plus tard, en avril 2018, la plus haute cour de justice de la Nouvelle-Écosse a renversé ce jugement, rejetant la position originale et le test d’application de discrimination. En fin de compte, la décision de la haute cour stipulait que le demandeur avait accès à l’ensemble des médicaments dont pouvait bénéficier tout autre adhérent admissible à ce régime. Les effets lui étaient néfastes, dans la mesure où ces médicaments n’agissaient pas sur lui; cependant, il n’entrait pas dans le cadre d’un groupe protégé, tel que décrit dans la Loi canadienne sur les droits de la personne.[1]

Cette décision de la haute cour dans l’affaire Skinner demeure la norme en ce qui concerne la façon dont le cannabis est actuellement géré par les régimes d’avantages sociaux. Plus précisément, la plupart de ces régimes prévoient des directives qui stipulent clairement que les médicaments sur ordonnance doivent être reconnus par Santé Canada et identifiés par un numéro d’identification du médicament (DIN), afin de pouvoir être éventuellement pris en charge à titre de dépense admissible. Le cannabis ne bénéficie pas pour l’instant de ce DIN; par définition, la majeure partie des régimes d’avantages sociaux ne le prendront pas en charge comme médicament.

Des règles précises : Le Gouvernement du Canada a notamment insisté sur le fait que les règles qui régissent le cannabis médical (Règlement sur l’accès au cannabis à des fins médicales – RACFM) restent inchangées et ne doivent pas être confondues avec la légalisation de la marijuana à usage récréatif[2].

La légalisation du cannabis à des fins récréatives ne fait qu’apporter aux personnes qui souhaitent l’utiliser à des fins médicales un autre moyen légal de le faire. Il convient néanmoins de savoir que contrairement au cannabis médical, le cannabis à des fins récréatives obtenu en dehors des fournisseurs réglementés par le RACFM et par Santé Canada ne saurait être considéré comme une dépense médicale admissible, telle qu’elle est actuellement définie dans le cadre du Crédit d’impôt pour frais médicaux – que le cannabis soit utilisé à des fins médicales ou non[3].

Quand bien même l’utilisation du cannabis à des fins médicales remonte à plus de 3 000 ans, la recherche et les découvertes sur cette drogue continuent de poser problème aux chercheurs. Par ailleurs, elle n’a pas reçu l’aval de toutes les associations gouvernementales. À l’heure actuelle, le cannabis médical n’est ni un produit « médicamenteux » approuvé par Santé Canada, ni un produit de santé naturel homologué. Cela signifie qu’il ne BÉNÉFICIE PAS d’un DIN ou d’un Numéro de produit naturel (NPN); de ce fait, il ne peut pas être vendu en pharmacie de détail. Cependant, l’Agence du Revenu du Canada (ARC) a pris en charge le cannabis médical à titre de frais médicaux admissibles et par conséquent, de nombreux régimes d’avantages sociaux collectifs peuvent rembourser leurs adhérents par le biais de leur compte de gestion santé (CGS)[4].

Alors, quelle est la différence? La principale différence entre les deux catégories de cannabis correspond aux réglementations qui les régissent.

  • Le cannabis médical est celui qui est obtenu dans le cadre du RACFM fédéral et qui est utilisé à des fins médicales uniquement.
  • Le cannabis légal à des fins récréatives est celui qui est obtenu dans le cadre de réglementations provinciales à des fins récréatives. Elles entreront en vigueur lorsque le cannabis à des fins récréatives deviendra légal. Le cannabis obtenu de cette manière est destiné à un usage récréatif.[5]

Situation actuelle : Le monde du cannabis reste complexe pour beaucoup d’entre nous en raison de l’afflux continu de facteurs inconnus et de recommandations peu claires. Même si les docteurs peuvent prescrire du cannabis médical, il n’en reste pas moins surprenant de voir qu’ils donnent uniquement des indications sur la dose quotidienne, et non sur la variété à utiliser pour traiter la pathologie spécifique de l’individu. Avec les centaines de variétés disponibles, les patients ne savent pas par où commencer lorsqu’il s’agit de faire un choix pour le traitement à suivre et l’utilisation de cannabis médical.

Quand bien même celui-ci ne dispose pas actuellement d’un DIN, la plupart ne savent pas qu’il existe actuellement deux types de cannabinoïdes synthétiques qui en ont déjà un (Sativex et Cesamet), lesquels sont actuellement admissibles dans le cadre de certaines listes de médicaments de régimes d’avantages sociaux de prestataires.

Les prestataires du secteur ont commencé à faire part de leur position vis-à-vis du remboursement du cannabis médical à leurs souscripteurs. Ils continuent de mettre au point leurs stratégies respectives au vu de l’environnement changeant au sein duquel évolue ce médicament; toutefois, nombreux sont ceux qui ont inclus des critères d’autorisation supplémentaires dans les paramètres des régimes, comme des plafonds, ou encore des restrictions vis-à-vis des pathologies admissibles. Nous avons récemment sondé ces prestataires afin d’obtenir une vision plus approfondie de leurs offres, le cas échéant.  Le tableau ci-dessous donne des précisions sur les différents assureurs ainsi qu’un résumé de leurs positions et de leurs offres respectives au titre du remboursement du cannabis médical.

Assureur

Remboursement régime assuré

Remboursement services de gestion seulement (ASO)

Remboursement compte de gestion santé (CGS)

Date d’entrée en vigueur

Renseignements sur le régime

Impact financier estimé

Sécurindemnité

 

 

 

 

 

 

s. o.

Bientôt disponible

Disponible

1er octobre 2018

– Formulaire de présentation pour le cannabis médical requis

– Conditions d’admissibilité limitées

– Plafond du régime recommandé : 2 500 $

Montant estimé des demandes 2 426 $/12 mois

Desjardins

Disponible*

(inclus dans le cadre des prestations pour soins de santé complémentaires)

 

*Non-disponible pour les groupes assurés sous PerformPlusMD

Disponible

Disponible

 

– Autorisation préalable requise

– Limité à 4 indications admissibles

– Âge minimum requis pour approbation : 21 ans

– Plafonds annuels compris entre 1 500 $ et 6 000 $

– Impact du taux en fonction du choix d’élaboration du régime

Empire Vie

Non disponible

Non disponible

Disponible

À déterminer

s.o.

s.o.

La Great West

En cours de développement (sera inclus dans le cadre des prestations pharmaceutiques)

En cours de développement

Disponible

Objectif : fin 2018, début 2019

– Autorisation préalable requise avant chaque demande

À déterminer

Greenshield

En cours de développement (sera inclus dans le cadre du remboursement complémentaire pour soins de santé)

En cours de développement

Disponible

À déterminer

– Autorisation préalable requise

– Un plafond de prestations sera mis en place

– Limité à certaines pathologies spécifiques

– Impact financier sur les régimes assurés à déterminer

– Impact financier estimé sur les ASO pour demandes de 10 000 $/an (en l’absence d’un plafond de régime)

Industrielle Alliance

Disponible

Disponible

Disponible

 

– Autorisation préalable requise

– Plafond annuel de 5 000 $

– Admissibilité en fonction des directives énoncées par Santé Canada et le Collège des médecins de famille du Canada

– Analyse de souscription requise pour l’impact financier spécifique du client sur les primes

Manuvie

Disponible

Disponible

Disponible

 

– Autorisation préalable requise

– Plafond annuel de 2 500 $

– Partenariat avec Shoppers Drug Mart afin de donner des indications sur le médicament (disponible à compte du 1er septembre 2018)

Ajustement approximatif de 1,5 % par rapport aux médicaments et autre taux

NexgenRx

s.o.

Disponible

Disponible

 

– Partenariat avec CannTrust Inc.

– Remboursement facultatif

 

RBC

En cours de développement

Non disponible

En cours de développement

Objectif : premier trimestre de 2019

– Remboursement fourni sur contrat de remboursement des coûts, CGS

– Facultatif dans le cadre des régimes assurés pour soins de santé complémentaires

À déterminer

SSQ

En cours de développement

En cours de développement

En cours de développement

Dans les mois à venir

– Toutes les précisions concernant les remboursements seront bientôt fixées

À déterminer

Sun Life

Disponible

Disponible

Disponible

 

– Contrôle sur l’élaboration du régime plus important dans le cadre des régimes pour soins de santé complémentaires

– Aucun contrôle disponible dans le cadre de CGS

– Demandes estimées entre 1 700 $ et 6 600 $, en fonction des pathologies

– Récemment évalué à +20 % d’augmentation pour les taux remboursés, pour les clients existants

 

[1] Nova Scotia's highest court strikes down human rights decision over medical marijuana (« La plus haute cour de justice de la Nouvelle-Écosse renverse la décision de la Commission des droits de la personne sur la marijuana médicale »), CBC, The Canadian Press https://www.cbc.ca/news/canada/nova-scotia/court-decision-overturns-medical-marijuana-insurance-1.4617373

[2]Introduction de la Loi sur le cannabis : Questions et réponses, Gouvernement du Canada (https://www.canada.ca/fr/services/sante/campagnes/depot-projet-loi-cannabis-questions-reponses.html)

[3] Gouvernement du Canada, Frais médicaux 2017 (https://www.canada.ca/fr/agence-revenu/services/formulaires-publications/publications/rc4065/frais-medicaux-2016.html)

[4] eNews Sécurindemnité – Remboursement du cannabis à usage médical maintenant offert – Remboursement du cannabis médical – juillet 2018

[5] 1. Introduction de la Loi sur le cannabis : Questions et réponses, Gouvernement du Canada (https://www.canada.ca/fr/services/sante/campagnes/depot-projet-loi-cannabis-questions-reponses.html)

 

 


Misclassification of Employees July 18 2018

Purpose: The purpose of the HR Minute is to provide Humaniqa clients with timely information about human resources issues.  Please take a moment to read this important information.

It is important for employers to understand legislation in their jurisdiction regarding the proper way to classify independent contractors/employees. If an employer does not classify an independent contractor/employee correctly, there could be legal consequences. This is especially apparent following the implementation of Bill 148 in Ontario, where effective January 1, 2018 employers who misclassify employees as independent contractors could face penalties, including prosecution.

Independent Contractor vs Employee

There is no set definition for an independent contractor in Canada, however arbitrators as well as the Canada Revenue Agency rely on the four-point test as standard to determine which type of employment relationship exists. The method is based on four key points explained below: control, ownership of tools, the chance of profit/risk of loss, and integration.

  1. Control: A contractor decides when, where, and how their own work is performed.
  2. Ownership of tools: A contractor supplies their own tools.
  3. Chance of profit/risk of loss: A contractor has a chance of making a profit, run the risk of incurring loss due to bad debts or damage to equipment or materials, and covers operating costs.
  4. Integration: A contractor integrates the payer’s activities to their own commercial activities. 

Implications for Employers 

Misclassifying workers can lead to the failure to provide adequate coverage to employees who are improperly classified in terms of insurance, privacy, wage, and benefits which can result in significant penalties, interest, and legal fees. Below are some costs employers could incur:

  • Penalties of 10 to 20 per cent on unpaid Income Tax, EI, and CPP premiums plus interest;
  • Minimum wage, overtime, parental leave, vacation pay, etc.;
  • Potential claims for wrongful dismissal damages from early contract termination;
  • Workers’ compensation premiums plus fines and interest.

Penalties for misclassification are also legislated at the provincial level in some jurisdictions. For example in Ontario, if an employer is found guilty of misclassifying an employee they may face penalties of $350 for a first offence, $700 for the second, and $1500 for the third. These amounts are then multiplied by the number of misclassified employees. Employers may be fined an additional amount between $50,000 and $500,000 depending on the number of previous offences.  

In order to mitigate risk, employers should re-examine their relationships with contractors to make sure they are complying with employment standards legislation in their jurisdiction. If you are having trouble determining employment status in difficult or unique circumstances, we recommend you talk to a lawyer.

 


Human Rights Tribunal of Ontario: Terminating Employee Benefits at Age 65 June 18 2018

Background 

A recent decision by the Human Rights Tribunal of Ontario may cause employers to reconsider how they handle certain employee benefits for workers aged 65 and older. Section 25 (2.1) of Ontario’s Human Rights Code prohibits age discrimination against an employee in terms of employee benefits. In 2005, the government of Ontario passed Bill 211 which significantly amended the Code in relation to section 25 (2.1). First, it ended the ability of employers to require their employees to retire at age 65. However, as a means of apparent compromise and to maintain flexibility, the province still allowed employers to provide age-differentiated benefit and pension plans to those employees who are aged 65 and older. This, the Tribunal found, amounts to a violation of the Charter of Rights and Freedoms. 

Talos v Grand Erie District School Board

 Steve Talos turned 65 in 2012. At that time, his employer, the Grand Erie District School Board, terminated his health and dental benefits based on his age. Talos then filed a complaint with the Tribunal alleging a violation of section 25 (2.1) of the Code and the Canadian Charter of Rights and Freedoms.

 In its defense, the School Board stated that the Code allows for employers to cut off certain group benefits to workers age 65 and older. They also argued that benefits that are terminated for post-age 65 workers are subject to collective bargaining, and the removal of the ability to bargain on these benefits could result in harm to both the plan’s financial health and the School Board’s constitutional protected collective bargained rights.

The Tribunal rejected both arguments. The Tribunal held that the collective bargaining process would not be hindered by the requirement to provide benefits to post-age 65 workers. The Tribunal also did not find any evidence of significant cost increase for an employer to provide group health and life benefits to post-age 65 workers. Ultimately, the Tribunal held that the Code’s section 25 (2.1) must be impugned in order to avoid age discrimination against post-age 65 workers and in violation of the Charter. For more information on this case, please refer to the Tribunal’s interim decision: http://canlii.ca/t/hs4l0.

Implications for Employers

 Many employers currently possess benefit plan documents that include similar provisions as the School Board’s. Therefore, the Talos decision has the possibility of having a significant impact on the way that employers provide benefits to post-65 workers and collectively bargain such.

 It is important to note that this is an interim decision. This means that the Talos case is still waiting for a final decision which could be either consistent, contrary, or amend the interim decision. Right now, in the absence of a final decision, it would be beneficial for employers to review their plan documents for language that affects benefits for post-age 65 workers. In addition, employers that will be entering into collective bargaining in the next few months may want to highlight such language as potential issues to table until final guidance becomes available, or include a provision to reopen negotiations upon the Tribunal’s final decision.


2018 HR Compliance Schedule May 30 2018

HR Compliance Schedule: May to December 2018        

Below are upcoming deadlines and regulatory changes that employers must prepare for from May to December 2018. Changes are up to date as of May 1, 2018.

FEDERAL

Federal

August

Earliest possible date for the legalization of recreational cannabis to take effect

Federal

December 1

Deadline for employers to comply with new GHS 2015 WHMIS requirements

ALBERTA

Alberta

June 1

Bill 30: OHS law changes take effect

Alberta

June 1

Bill 19: workplace violence requirements for gas stations and late night retail stores take effect

Alberta

September 1

Bill 30: third wave of workers’ compensation changes take effect

BRITISH COLUMBIA

British Columbia

May 3

Deadline to comment on proposed OHS Regulation changes for PPE and concrete formwork

British Columbia

May 31

Deadline to comment on WorkSafeBC Permanent Disability Evaluation Schedule (PDES) proposal

British Columbia

June 1

Minimum wage increases to $12.65 per hour

MANITOBA

Manitoba

October 1

Minimum wage increases to $11.35 per hour

NORTHWEST TERRITORIES & NUNAVUT

Northwest Territories & Nunavut

May 31

Deadline to comment on WSCC plan to begin issuing tickets for OHS offences

PRINCE EDWARD ISLAND

Prince Edward Island

May 10

Deadline to comment on WCB proposal to increase lump sum benefit payments for worker’s work-related death

Prince Edward Island

May 15

Last day to comment on proposal to make prevention of workplace harassment express duty under OHS laws

ONTARIO

Ontario

May 4

Deadline to comment on proposed pension changes affecting funding of MEPP and DC plans

Ontario

May 31

MOL blitz targeting ESA compliance in construction sector begins

QUEBEC

Quebec

May 1

Minimum wage increased to $12 per hour

SASKATCHEWAN

Saskatchewan

July 1

Increases in RPP pension filing fees take effect


Breaking News: Ontario’s Public Holiday Pay May 30 2018

Ontario Government to Review Public Holiday Rules 

On May 7, 2018 the Ontario government announced that the province will conduct a review of the Public Holiday System under Part X of the Employment Standards Act. The announcement can be found here.  According to the announcement, the government has found that public holiday rules were the source of the most complaints under the ESA and needed to be simplified.

While the government conducts the review, it has reinstated the formula for calculating public holiday pay that existed prior to the changes under Bill 148 through a new regulation, O. Reg. 375/18. This regulation takes effect July 1, 2018 and does not apply retroactively.

What Does This Mean For Employers? 

This means that any public holidays falling between January 1, 2018 and June 30, 2018 are subject to the calculation contained in Bill 148. As such, the upcoming Victoria Day long weekend will still require employers to calculate holiday pay with the Bill 148 calculation. These current rules state:

An employee’s public holiday pay for a given public holiday shall be equal to, the total amount of regular wages earned in the pay period immediately preceding the public holiday, divided by the number of days the employee worked in that period.

For the Canada Day long weekend until December 30, 2019, or until another Regulation is passed, employers are required to calculate public holiday way using the calculation in place prior to Bill 148. As a reminder, this states:

The employee’s public holiday pay for a given public holiday shall be equal to the total amount of regular wages earned and vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred, divided by 20.

Anyone who wishes to provide feedback to the Ministry of Labour in this regard is free to contact them at: exemptions.review@ontario.ca.


Flexible Work Arrangements April 16 2018

Purpose:  The purpose of the HR Minute is to provide clients with timely information about human resources issues.  Please take a moment to read this important information.

Although not mandated by employment legislation, many employers have recognized the benefits of approving requests for flexible work arrangements.  Of course, being accommodating and implementing a practice of flexible arrangements can improve morale, increase retention and ultimately, improve effectiveness and efficiency.  On the other hand, some employers remain hesitant about flexible work arrangements as it is difficult to track an employee’s time, it creates scheduling conflicts, and it requires an adjustment to a new management style which requires trust.

As defined by the Government of Canada, “flexible work arrangements allow employees to alter, on a temporary or permanent basis, their work schedule, the number of hours they work or the location where they do their work, or to take leave from work to meet responsibilities outside of work.” Flexible work arrangements can be implemented in several different ways such as flex-time, compressed workweeks, part-time scheduling, job sharing or shift work.  Before approving requests, employers should be mindful of the impact the arrangement(s) will have on the organization.  For example, employers should ensure that opportunities are available to all employees and free from prejudice or discrimination.  

Despite an organization’s best efforts, some employees may be negatively impacted more than other groups based on several circumstances.  In order to mitigate any claim of discriminatory practice, employers should ensure they evaluate each request on a case-by-case basis along with clear policies and careful documentation. Agreements should always be in writing and include a start and end date, a list of the changes that will take effect, as well as signatures from both parties.

Upcoming Changes to the Canada Labour Code

The Government of Canada hopes to make significant changes to legislation in order to accelerate the trend toward flexible schedules.  In recent discussions, the Government has expressed its commitment to amend the Canada Labour Code with plans to provide employees the right to request flexible work arrangements from their employers. 

Under Bill C-63, Budget Implementation Act, 2017 employers will have to provide a bona fide reason as to why they decide not to grant the leave as well as other exceptions.  Other countries, such as Australia and the UK, have already granted their employees similar rights.

The Government has only recently begun discussions in earnest. For now, employers will simply have to await further deliberation.  We will continue to report on this trend as it develops.

For a sample flexible work arrangement policy, please visit the Policy Library in the Resource Centre tab of our website. To view Bill C-63 and other related federal legislation, please visit the Laws tab.

Date: April, 2018


Bill C-65: Canada Labour Code’s New Harassment Framework March 14 2018

Purpose: The purpose of the HR Minute is to provide clients with timely information about human resources issues. Please take a moment to read this important information.

Introduced in November 2017, the federal government is currently reviewing Bill C-65, which, if passed into law, would present some important amendments to the Canada Labour Code’s standards and process around workplace violence and harassment, including sexual harassment and violence.

Bill C-65 would also ensure the application of those same provisions to parliamentary and political staff, governed by the Parliamentary Employment and Staff Relations Act (“PESRA”).

Proposed Changes to the Canada Labour Code

If passed, Bill C-65 would expand a number of provisions in Part II, Occupational Health and Safety. Some of the proposed changes include:

  • New federal regulations surrounding the obligation for federal employers to take measures against and respond to harassment in the workplace. Employers would be required to investigate, record, and report all “accidents, occurrences of harassment or violence, occupational illnesses and other hazardous occurrences known to the employer.”
  • The inclusion of “psychological injuries” and “psychological illnesses” as consequences of abuse, instead of focusing on physical injury.
  • A new complaint reporting structure that would forward unresolved harassment or violence complaints directly to the attention of the Minister of Employment for investigation.
  • New rules and guidelines regarding the complainant’s right to privacy; specifically, which employer agents are able to participate in an investigation without the employee’s explicit consent.

Proposed Changes to the Parliamentary Employment and Staff Relations Act

Presently, no legislative occupational health and safety standards apply to employees of the House of Commons, the Senate, the Library of Parliament, the Parliamentary Protective Service, or the Parliamentary Budget Officer. Bill C-65 would expressly provide for the application of the majority of the Code’s Occupational Health and Safety provisions to those employees and individuals who are not employees but are performing activities, the primary purpose of which is to enable the person to acquire knowledge and experience.

Takeaways

Being that this is a federal amendment, it applies chiefly to employees working in the public sector. However, the bill will likely serve as a valuable guide for employers of all jurisdictions.

Federally-regulated employers, including those covered by the PESRA, should consider whether Bill C-65’s proposed changes require an examination or revision of current policies and practices on workplace violence or harassment.

As of the time of writing, Bill C-65 is currently being read in committee and could be subject to further amendment. We will continue to report on this story as it develops; keep an eye on our website for updates.

Date: March, 2018

 

 


WSIB Mental Health Claims February 09 2018

Purpose:  The purpose of the HR Minute is to provide clients with timely information about human resources issues.  Please take a moment to read this important information.

On May 17, 2017 the Government of Ontario passed Bill 127, the Stronger, Healthier Ontario Act (Budget Measures), 2017. This Act amended several provisions of the Workplace Safety and Insurance Act, 1997 (WSIA), including section 13 which provides a worker the entitlement of benefits under the insurance plan for chronic or mental stress arising out of and in the course of the worker’s employment.

The Workplace Safety Insurance Board (WSIB) drafted two stand-alone policies covering Traumatic Mental Stress and Chronic Mental Stress in this regard. These policies came into effect on January 1, 2018.

 

Chronic and Traumatic Mental Stress

Chronic Mental Stress

A work-related stressor will be considered substantial if it is excessive in intensity and/or duration in comparison to the normal pressure experienced by workers in similar circumstances. Examples of such stress can be a result of incidents including, but not limited to, workplace harassment, interpersonal conflicts, or having a job with a high degree of routine stress.

Traumatic Mental Stress

As defined by the WSIB, a traumatic event may be a result of a criminal act or a horrific accident, and may involve actual or threatened death or serious harm against the worker, a co-worker, the worker’s family member, or others. In all cases, the event(s) must occur in the course of the employment and be clearly and precisely identifiable and objectively traumatic. Examples of such events include, but are not limited to, witnessing a fatality or horrific accident, being the object of physical violence or death threats, or being the object of workplace harassment that includes being placed in a life-threatening situation.

 

Eligibility

To be eligible, chronic mental stress must be predominantly caused by a substantial work-related stressor. Workers must satisfy the following three conditions:

  • A diagnosis must be made by an appropriate regulated health professional based on the Diagnostic and Statistical Manual of Mental Disorders (DSM);
  • The employee must experience a substantial work-related stressor(s);
  • The stressor(s) must have caused or significantly contributed to the chronic mental stress.

A worker is not eligible to file a claim under this policy for chronic mental stress caused by decisions or actions of the worker’s employer related to their employment including termination, demotion, a decision to change the work performed, or discipline.

 

Application Date

This policy applies to all accidents on or after January 1, 2018.

Workers can also apply for benefits under this policy if they have a chronic mental stress which occurred on or after April 29, 2014 and have not yet submitted a claim with the WSIB for this purpose before January 1, 2018. In this case, the worker may file a claim for chronic mental stress with the WSIB as long as such claim is submitted on or prior to July 1, 2018.

For more information on WSIB Mental Health Claims and Bill 127, please refer to the Laws tab on our website.


HR Minute: Ontario's Extended Personal Emergency Leave February 09 2018

Purpose:  The purpose of the HR Minute is to provide clients with timely information about human resources issues.  Please take a moment to read this important information.

The Fair Workplaces, Better Jobs Act, 2017 (Bill 148) received Royal Assent on November 27, 2017, and is now law. As we have reported previously, Bill 148 makes a number of significant changes to the Employment Standards Act, 2000 (the "ESA"), the Labour Relations Act, 1995, and the Occupational Health and Safety Act

This article summarizes the key amendments that have been made to Personal Emergency Leave (PEL) entitlements under the ESA.

Effective January 1, 2018, employees can use PEL for any of the following reasons:

  • A personal illness, injury or medical emergency;
  • The death, illness, injury or medical emergency of a family member; or
  • An urgent matter that concerns a family member.

A “family member” is defined by the ESA as:

  • The employee’s spouse;
  • The spouse of the employee’s child;
  • A parent, step-parent or foster parent of the employee of the employee’s spouse;
  • The employee’s brother or sister; or
  • A child, step-child or foster child of the employee or the employee's spouse;
  • A relative of the employee who is dependent on the employee for care or assistance.
  • A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee's spouse;

 

 

Bill 148 also makes a few other significant changes to the PEL provisions of the ESA, including:

  • All employees are now eligible for PEL; regardless of the size of the employer or status of the employee.
  • The 10-day entitlement will be maintained but employees with at least 1 week of service will now be entitled to paid leave for the first 2 personal emergency days; the remaining 8 will be unpaid. If a PEL is required in the first week of employment, it will be taken from the 8 unpaid days. For the 2 paid day, the employer must pay the employee the wage the employee would have earned had they not taken the leave.
  • Employers can no longer require an employee to provide a medical note to substantiate any claim for PEL.

PEL entitlements reset every year so they cannot be banked or accumulated and have no cash value during the employment relationship or upon termination.

The 10 days of leave do not have to be taken consecutively. If an employee takes any part of a day as paid or unpaid PEL, the employer can count the day as one full day of leave.

What should employers do?

  1. Develop & Revise Policies: Employers with less than 50 employees need to implement a PEL policy or practice and communicate to employees the availability of such a leave. Employers with 50 or more employees should review their existing PEL policies to address these changes.
  2. Proof of Entitlement: Employers do retain the right to require evidence of entitlement to PEL. Although an employer cannot require an employee to produce a certificate from a qualified health practitioner, there is nothing to prevent the employer from requesting other forms of evidence that are reasonable in the circumstance.

For example, where an employee requests PEL to attend a scheduled medical appointment, there is no reason why the employer cannot request a letter from the physician's receptionist confirming that the employee, in fact, attended the appointment. If the employee seeks medical attention at a hospital, the employer may request a copy of the in-take or admission form as opposed to a medical certificate from the treating physician. Employers may also request copies of parking receipts (at a doctor's office, for example), pharmacy receipts for prescription or even non-prescription drugs, etc.

Bill 148 provides no examples of what may be considered “evidence reasonable under the circumstances.” As a result, employers should proceed with caution on what they consider reasonable evidence for an emergency absence. Each scenario should be considered on a case-by-case basis as there is simply no one-size-fits-all solution.

Employers can still require a medical certificate to substantiate absences from work for the purposes of paid sick or personal day entitlements over and above the legislated minimums.

  1. Monitor & Track: To ensure employers are making the correct payments and to minimize abuse by employees, employers should monitor and track PEL days being taken.
  2. PEL and Other Leaves: Some employers already provide generous paid sick leave, bereavement leave and other leave policies. These employers should review personal days, bereavement days and sick leave policies and practices to see how the PEL policy works with these existing policies and make adjustments accordingly.

If you would like to learn more about PEL, you can visit our site for policies, forms, training and more.


HR Minute: Ontario’s Fair Workplaces, Better Jobs Act November 27 2017

Purpose: The purpose of the HR Minute is to provide clients with timely information about human resources issues. Please take a moment to read this important information.

The Ontario government has passed the Fair Workplaces, Better Jobs Act, 2017 which includes a wide-ranging serious of amendments to the Employment Standards Act and the Labour Relations Act.

The government cites the purpose of such amendments to bring more fairness to Ontario workplaces and to create more security and opportunity for vulnerable workers and their families.

What follows is a detailed listing of the amendments.


Changes to the Employment Standards Act


Minimum Wage

Under the Fair Workplaces, Better Jobs Act the provincial minimum wage will be adjusted according to the following schedule:

 Classification Current Jan 1, 2018 Jan 1, 2019
General Minimum Wage $ 11.60 $ 14.00 $ 15.00
Liquor Servers $ 10.10 $ 12.20 $ 13.05
Student Wage $ 10.90 $ 13.15 $ 14.10
Homeworkers $ 12.80 $ 15.40 $ 16.50



Any minimum wage increases after January 1, 2019 will continue to be tied to annual adjustment to Ontario’s Consumer Price Index.

 

Equal Pay for Equal Work

Employers must pay casual, part-time, and seasonal employees the same rate paid to full-time employees when doing the same work. Temporary help agency employees doing the same job as permanent employees at the agencies’ client companies must also receive equal pay.

Date of effect: April 1, 2018


Increased Vacation Entitlements

The legislation will bring Ontario’s vacation time in line with the national average by ensuring an employee an additional week of vacation, amounting to at least three weeks’ vacation, after five years of working for the same employer.

Date of effect: January 1, 2018

 

Public Holiday Pay

The formula to calculate such as been simplified, and is to be calculated as follows:

  • Public Holiday Pay = total regular wages earned in pay period immediately preceding the public holiday / number of days worked in that pay period 

For employees required to work public holidays, they are entitled to receive public holiday pay plus premium pay for the hours worked. The option for the employer to provide employees who are required to work with a substitute day off in place of the holiday has been removed.

If the public holiday falls on an employee’s day off or when the employee is on vacation, it is required that the substitute day given to the employee be either the first work day after the public holiday or the last work day prior to it.

Date of effect: January 1, 2018

 

Scheduling

  • After 3 months’ employment with the same company, an employee is entitled to request a chance in work location or schedule.
  • Employees who report to work but are given less than three hours of work will be entitled to be paid three hours at their regular wages. 
  • Employees will be paid three hours at their regular wages if their scheduled shift or on-call period is cancelled within 48 hours of its commencement.
  • Employees are entitled to refuse a shift or be placed on-call if they are asked to work with less than four days’ notice, without repercussion.
  • Employees who are on-call and are either not called in or called in and work less than three hours will be paid for three hours at their regular wage rate for each 24 hour on-call period. 


Date of effect: January 1, 2019

 

Leaves of Absence

Personal emergency leave is extended to 10 days per calendar year for employees, with at least two paid days per calendar year for employees who have been employed for at least one week. All employees are entitled to this leave; not merely those working for employers with 50 or more regular employees.

Family medical leave is extended to 27 weeks of leave without pay in a 52 week period to provide care to a family member. This leave may be extended for a further 27 weeks in some cases.

Leave for the passing of a child has been expanded so that employees who have been employed with the same company for at least six months will be entitled to a single period of unpaid leave of up to 104 weeks if their child dies, regardless of the circumstances.

Leave without pay for crime-related child disappearance has been expanded so that employees who have been employed with the same company for at least six months will be entitled to a single period of unpaid leave of up to 104 weeks.

Date of effect: January 1, 2018

 

Other Changes:

  • Employers are banned from requiring a doctor’s sick note from an employee taking personal emergency leave.
  • Employees must be provided up to 17 weeks off without the fear of losing their job when they or their child has experienced or is threated with domestic or sexual violence, including paid leave for the first five days.
  • Employers will be subject to penalties (including prosecution, public disclosure of a conviction, and monetary penalties) for misclassifying employees as independent contractors. 
  • Where an employee holds more than one position within one single company, the employer will be required to pay them for overtime at the rate of the position they were working during the overtime period.
  • Temporary help agencies are must provide assignment workers one week’s notice, or pay in their thereof, when an assignment that was scheduled to last longer than three months is terminated early.
  • Increased flexibility for Employment Standards Officers when it comes to issuing penalties to employers.
  • Option for written agreements between employees and employers to be kept electronically. 


Enforcement

In order to strengthen enforcement of employment regulations, the province will hire more than 175 new Employment Standards Officers. The province claims that once the officers are hired in mid-2020, they will endeavor to inspect 1 in 10 workplaces in Ontario, with a particular emphasis on small-to-medium sized businesses.

 


Changes to the Labour Relations Act

 

Union Application

A union which can show that it has the support of 20% of the employees in proposed bargaining unit will be able to apply to the Ontario Labour Relations Board (OLRB) for an order directing the employer to provide the union with a list of all employees and their contact information.

In response, the employer can file a Notice of Disagreement. The employer will know the percentage of employees in support of the union, but will not know their identity. The ORLB may decide upon an application without a hearing or consultation.

 

Union Certification

In the temporary help agency, building services, homecare, and community services industries, the option of card-based certification will be introduced.

Where the OLRB decides that an employer has committed an unfair labour practice that impacted the support for the union, remedial union certification is mandatory.

A union is required to file membership cards with its application for certification. The employer will have two days to respond and provide the names of all employees in the proposed bargaining
unit. If the union can demonstrate that is was the support of 40 – 55% of employees, then a vote will be ordered. For support of more than 55% in the unit, the union will be certified.

The OLRB can conduct votes outside the workplace, including electronically for via telephone. The OLRB may also authorize a Labour Relations Officer to provide insight on the voting process to ensure neutrality.

 

Mediation and Arbitration

The OLRB must address first contract mediation-arbitration application prior to dealing with displacement and decertification applications.

It is possible for a party to file an application for arbitration 20 days following a mediator being appointed.

The OLRB can dismiss the application, order more mediation, or direct interest arbitration. No strikes or lockouts can occur when mediation-arbitration is directed by the OLRB.

 

Successor Rights

Successor rights are extended to building services contracts, including food, cleaning, and security services.

 

Review and Consolidation

The OLRB has the authority to change the structure of existing bargaining units if it finds that they are no longer appropriate for collective bargaining. The OLRB could also consolidate newly certified bargaining units with other existing bargaining units under a single employer, where they are represented by the same bargaining agent.

 

Return to Work

The six month limitation on an employee’s right to return to work following the commencement of a lawful strike has been removed. Employers are required to reinstate an employee at the end of a legal strike or lockout, enforceable through grievance arbitration.

 

Just Cause Protection

Employees are protected from being disciplines or discharged during the period between certification and conclusion of first contract, as well as the period between the date employees are in a legal strike or lockout and the date that the new collective agreement takes effect.

 


Performance Management: Why Once a Year Just Isn’t Enough November 30 2015

Annualized approaches to performance management are increasingly considered to be antiquated. Modern jobs, by-and-large, are becoming more and more service oriented; they are becoming more and more knowledge-based. As jobs grow, our tools need to grow alongside them. Rather than enforcing an arbitrary ranking amongst staff each year, many employers are finding a greater degree of satisfaction in pursuing a year-round system of continuous improvement.

The essence of this strategy is to move away from two elements that are endemic to classical performance appraisal systems. The first of these concepts is that of the “Pass/Fail” ranking mechanic. In addition to serving as a de-motivator for many workers, it also tends to encourage in-fighting and office politicking. As the individual employee’s skills and abilities grow more and more critical to success in their role, management should be encouraged to see that these skills are nurtured and developed. For this reason, the modern performance evaluation cycle might look something like this:

Year-round Performance Appraisal Cycle

The second concept losing favor is that of the ‘annualized performance meeting’. Performance meetings can be held more frequently, at the behest of either the employer or the employee. The performance meeting is an opportunity to offer advice, communicate expectations, address concerns, and offer praise. These things do not need to be done infrequently; some employers have as many as four or more meetings a year.

A large part of continuous performance management is proactivity. There are many ways of addressing and improving employee performance long before any meetings take place or any issues arise. The following are some strategies that managers can employ year-round as methods of performance management:

  • Review Job Descriptions Regularly. The workplace is fluid; changing and dynamic. Outdated job descriptions can make it difficult for a worker to succeed in their role.
  • Build Relationships with Employees. Outside of formal meetings, supervisors should attempt frequent contact with their employees. Comfortable communication may help in dealing with any issues down the line.
  • Get Regular Status Reports. Reports should include both work completed to-date, as well as work planned for the future. This will allow the employer to keep a close eye on the status of the employee’s work
  • Develop Routine Task Procedures. Developing task procedures ought to increase efficiency, eliminate redundancy, and allow employees to have input into the methods used to complete their work.
  • Hold Regular Meetings. Meetings can be used as an opportunity to both communicate objectives and provide feedback.
  • Communicate Performance Standards and Expectations. In order to achieve a positive performance review, employees ought to know what the criteria for success are.
  • Offer Regular and Frequent Feedback. Feedback can offer affirmation to employees who are on the right track and can address performance concerns early on.
  • Recognize and Reward Good Performance. Recognition plays a critical role in the positive reinforcement of behavior, but it is important to note that employees can be recognized formally (such as during a meeting) and informally (such as a word of encouragement after a job well done).
  • Utilize the Probationary Period. It is highly recommended that employers have a probationary period of at least 3 months, with the possibility of extending the period in the event of a significant absence. During this period, employee performance should be monitored and compared to a pre-established benchmark.

While the typical performance plan might focus on growth and positive reinforcement, this does not mean that difficult conversations are to be avoided. Should an employee continuously fail to meet expectations, it is management’s duty to address the employee’s poor performance.

Recency is an important factor for learning; behavior is most easily corrected if addressed as soon as possible. At this time, managers should provide a detailed description of the employee’s performance problems, including why such issues matter to the workplace as a whole. Such meetings need not necessarily be oppositional; to the extent possible, it is important that the employee understand the benefits of improvement and that management can help. Bringing aggression or blame into a performance meeting is rarely helpful.

After discussing the concerns and the importance of improvement, the interviewer and the employee should work together in order to create a plan of action; a sequence of tasks that the employee is to follow in order to correct their behaviour. Most action plans should include:

  • A description of the situation or problem.
  • An outline of the task and promises to be observed by the employee in order to solve the problem.
  • The responsibilities of the manager throughout this process
  • An outline of the consequences should the plan not be followed
  • A follow-up meeting date.

In the event that a corrective action plan fails to resolve the issues, management may be forced to adopt more severe strategies; including demotion, reassignment, or termination.

If you would like to learn more about Performance Management, you can visit Humaniqa.com for guides, policies, video training, and more.


Managing the risk of constructive dismissal November 09 2015

In today’s ever changing workplace environment, it’s essential to understand the significance of a constructive dismissal claim to properly limit the risk of legal liability.

The potential for constructive dismissal arises when an employer makes a unilateral and fundamental change to a term or condition of an employment contract. If the employee refuses to accept the change and the employer tries to impose it anyway, the employee may treat the employer’s actions as a constructive dismissal and sue for damages as if he or she had been terminated without cause or notice.

Not every change in employment, however, will amount to a constructive dismissal. What constitutes a unilateral and fundamental change depends on the terms of each employment contract, and, therefore, there is no “one-size fits all” approach to constructive dismissal.

There are four essential considerations in any successful constructive dismissal claim:

  1. What are the express and/or implied terms and conditions of the contract? Only changes to the essential terms of the employment contract will allow the employee to reject the change and conclude that he or she has been dismissed. 
  1. Has there been a breach? In order for a breach of contract to exists, there must be an absence of consent on the part of the employee to any change in the terms and conditions implemented by the employer. If the employee accepts the change by, for example, continuing to work without objection, the change may be deemed to have been accepted by the employee.
  1. Is the breach a fundamental one? When the change is large enough to be said to be a 'fundamental' change, then it can be characterized as constructive dismissal. To put it in context, common examples of changes to an employee’s working conditions include:
    • Changes to the essential duties of the employee
    • Changes in reporting functions
    • Changes in hours of work or the number of shifts worked
    • Changes in remuneration or termination of a bonus
    • Reductions in status
    • Changes in geographic location
  1. Assuming there is a breach, are the working conditions such that the employee should consider remaining on the job? In addition to demonstrating that constructive dismissal has occurred, the employee has an obligation to do his or her part to mitigate the loss by making reasonable attempts to find employment.

These considerations are not simple and there are a number of factors that apply in each of the considerations. To reduce the risk of constructive dismissal claims, employers should obtain the employee’s consent for any substantial changes in the terms and conditions of employment.

When possible, employers should provide notice of the change to all affected employees to minimize the possibility of constructive dismissal claims. For example, if an employee would normally be entitled to 4 weeks notice of termination, the employer may provide the employee with 4 weeks working notice of the employer’s intention to unilaterally alter the employment contract. At the end of the working notice period the employee’s previous contract would be terminated, and the employee would be free to accept the new terms and conditions of employment.

Notwithstanding this, providing the employee with reasonable working notice of a fundamental change does not totally eliminate the risk of liability for constructive dismissal. If there is significant “push back” from the employee, the employer should obtain legal advice about whether or not the planned changes are substantial enough to create a risk of a constructive dismissal.


AODA requirements for January 1, 2016 October 26 2015

As the New Year quickly approaches, so to will new accessibility requirements come into effect. As I’m sure all Ontario employers are aware by now, the Accessibility for Ontarians with Disabilities Act (AODA) was created with the goal of making Ontario accessible for all individuals with disabilities by the year 2025. Over the last few years, companies of varying sizes have had certain requirements on them, and it’s not over yet.

Come January 1, 2016, organizations with 50 or more employees (considered large organizations) will need to meet even more accessibility requirements. Large organizations will have to comply with the requirements set out in Part III, Employment Standards Regulation, under the AODA. The requirements in Part III apply only to employees; not to volunteers and other non-paid individuals. The eleven (11) requirements are as follows:

  1. Recruitment: employers must notify job applicants that, where needed, accommodations for disabilities will be provided upon request (AODA Section 22);
  2. Interviewing and Assessment: employers will notify job applicants who have been invited to participate in a recruitment, assessment or selection process that, where needed, accommodations for disabilities are available upon request (AODA Section 23);
  3. Notifying Successful Applicants: employers will notify successful applicants of their policies for accommodating employees with disabilities when offering employment (AODA Section 24);
  4. Informing employees of supports: employers will inform new and existing employees of their policies for supporting employees with disabilities (AODA Section 25);
  5. Accessible formats and communication supports: employers will work with their employees who have disabilities to provide them with the accessible formats and communications supports they require in order to do their jobs effectively (AODA Section 26);
  6. Workplace Emergency Response: employers will prepare for the specific needs that employees with disabilities may have in emergency situations (AODA Section 27);
  7. Individual Accommodation Plans: employers are required to develop individual accommodation plans for employees with disabilities of which they have been made aware (AODA Section 28);
  8. Return to Work: employers will have in place a documented process for supporting employees who return to work after being away for reasons related to their disabilities (AODA Section 29);
  9. Performance Management: employers that use performance management processes will take into account the accessibility needs of employees with disabilities (AODA Section 30);
  10. Career Development and advancement: employers that provide career development and advancement opportunities will take into account the accessibility needs of their employees who have disabilities (AODA Section 31);
  11. Redeployment: employers that use redeployment processes will consider the accessibility needs of employees with disabilities when moving them to other positions (AODA Section 32).

Aside from the fact that these are required by both the AODA and the Human Rights Code, adhering to the Employment Regulations of the AODA will benefit your business. Having an inclusive and accommodating recruitment process, including interviewing and assessments, will help businesses to avoid unintentionally limiting the talent pool. Having their recruitment process open to all, with or without disability, ensures that employers have access to every possible individual with the knowledge, skills and abilities to perform the job.

For questions or concerns about the Employment Regulations of the AODA, contact our OnDemand Team.


A Short Overview of Mental Illness in the Workplace October 19 2015

Everyone has a story they can tell about mental illness. The story might be about themselves, their friends, their family, or even their coworker. It has a way of touching not only the patient, but those close to them. The Canadian Mental Health Association estimates that 20% of Canadians will experience a mental illness in their life time, with 8% of adults experiencing a major depressive episode at least once. Mental Illness and addiction are also included under the Ontario Human Rights Code categorization of Disability; meaning that employees are, by law, protected from discrimination and harassment stemming from any past, present, or perceived condition.

The question, then, is this: why do we know so little about it? Individuals suffering from mental illness are often misunderstood and stigmatized by their peers, often unintentionally. They may be exposed to stereotypes or face barriers in the workplace that their cohorts and superiors are unable to understand. Many employees will never come forward for fear of how they might be treated.

Mental illness is real, and it exists in the workplace. It is protected by law, meaning that employers have a responsibility to accommodate. What follows is a short guide to the various mental illnesses commonly found in the workplace, as well as some guidelines for employer’s seeking to create an accommodation plan. While far from comprehensive, we hope that it might shed some light on an otherwise nebulous topic.

Common Forms of Mental Illness

Stress: The potential progenitor of a variety of mental illnesses. “Stress” itself manifests as a pressure felt by an individual when required to respond to or change something. Stress is a key component in both motivation and satisfaction, but excessive stress can result in a variety of physical and mental illnesses. Stress-related disorders can include Acute Stress Disorder and Post-traumatic Stress Disorder.

Anxiety Disorders: Characterized by pervasive feelings of fear, specified or generalized. Generally speaking, anxious behavior stems from dread over an anticipated future event. Specific types of anxiety disorders can include Generalized Anxiety Disorders, Phobias, Social Anxiety, Panic Disorder, and many more. Anxiety disorders often co-occur with other personality disorders.

Depression: Characterized by a lack of energy, difficulty concentrating, and feelings of sadness, guilt, worthlessness, irritability, and emptiness. Depression can manifest itself in a variety of physical symptoms, including exhaustion, insomnia, and generalized aches and pains. There are many variants of depressive disorders, with Major Depressive Disorder being the most common.

Burnout: Also referred to as Occupational Burnout. Burnout is a stress-related disorder most common in job with high degrees of human interaction (such as nurses, police officers, and customer service reps). Employees suffering from burnout tend to experience a lack of motivation, a decrease in efficiency, and present symptoms of exhaustion.

Substance Abuse and Addiction: Substance abuse refers to an excessive use or dependence on a given substances, to the point of distress. An individual can become both physically and psychologically dependent on said substance, leading to a variety of possible health risks as well as impaired judgement. While this refers specifically to drug addiction, other behavioral addictions (gambling, for example) are also possible.

Bipolar Disorder: Characterized by rapid and drastic changes in mood. Individuals with a bipolar disorder may experience episodes of both manic (overly joyful and irritable) and depressive (sadness and loss of interest) behavior. There may also be ‘mixed episodes’ in which an individual might display symptoms of both. Various types of bipolar disorder exist, including Bipolar I, Bipolar II, and BP-NOS (Bipolar Disorder Not Otherwise Specified).

Schizophrenia: Characterized by confusion regarding reality. Diagnosed individuals may suffer episodes of ‘psychosis’ resulting in hallucinations or delusions. The severity of the disorder can vary greatly between different patients; many cases are highly treatable with the appropriate medication. A Diagnosis of Schizophrenia does not, as commonly believed, imply a multiple-personality disorder.

Accommodation

If an employee chooses to disclose to their employer that they live with mental illness, it is the employer’s duty to accommodate up to a point of undue hardship. While an employee may ask for accommodation, they are not necessarily under an obligation to disclose their specific mental illness. It is, however, an employer’s right to request medical documentation outlining the accommodations required. All accommodations must respect the dignity of the individual in question; not further stigmatize them. Some possible accommodations may include:

  • Modified working hours while returning from a leave, gradually easing into to a regular schedule.
    • EX: Reducing the length of a work day
    • EX: Working fewer days in a week
  • Change the ways in which supervisors interact with the employee.
    • EX: Providing written directions in lieu of verbal ones
    • EX: Scheduling regular meetings to ‘check in’ with the employee
  • Isolating and eliminating stressors that are particularly disruptive for the employee in question
    • EX: Arranging for a quiet working environment
    • EX: Allowing an employee to leave the room periodically during meetings
  • Changes to training processes.
    • EX: Allow for extra time
    • EX: Individualize the course

Of course, there is no single strategy when it comes to accommodating mental illness. Rather, adaptations are based upon the specific needs of the individual; that is what ‘accommodation’ means, after all. In all cases however, the details of an individual’s accommodation should be kept confidential. The goal is not to separate the employee from the workplace with special treatment, but rather to help integrate them into the team.

The information presented above is intended to help readers be mindful of mental health in the workplace. It does not, in any way, shape, or form, constitute medical advice. If you have any concerns regarding mental illness, please consult a professional.


Stress in the Workplace October 05 2015

Stress refers to an emotional and physical strain. It can be triggered by a variety of factors and circumstances, collectively known as “Stressors”. All Individuals feel the impact of stressors in some form or another; be it in their personal or professional lives.

Here are some of the most common stressors:

  • Poor work-life balance
  • Finances
  • Workload
  • Health issues
  • Family issues and personal relationships
  • Future uncertainty and job insecurity

While everyone reacts to stressors differently, stress can have a profound impact on workplace performance, the quality of an individual’s personal life, and even their overall health.  In order to diminish the risk of these negative effects, it is vital for organizations and workers to recognize and identify stressors within the workplace. Only by acknowledging stress can steps be taken to minimize it.

The following are techniques and practices which can help mitigate the impact of stress:

  • Monitor and eliminate existing sources of stress in the workplace (i. e. bullying, harassment and negative communication)
  • If operationally possible, offer flexibility in scheduling and job-sharing opportunities
  • Establish a supportive culture, embracing open communication
  • Organize and participate in social activities at work and outside of work
  • Communicate with managers and coworkers when experiencing work overload or competing deadlines
  • Staying fresh; use allotted vacation time and take regular breaks at work
  • Establish effective time management; use calendars or day planners to plot important tasks and deadlines
  • Develop a healthy lifestyle by eating healthy, getting adequate sleep and exercising regularly
  • Take advantage of Employee Assistance Programs while dealing with difficult situations or life events

Managing Employee Absenteeism September 28 2015

 Absenteeism is one of the most significant and growing costs in Canadian workplaces. It is estimated that employee illness and disability cost Canadian employers $16.6 billion each year. In addition to direct costs, other costs must be considered; costs such as increasing pressure on existing staff, diminished productivity, and a decrease in the quality of service.

There are three types of absenteeism – culpable, non-culpable (innocent) and those in the “grey zone.”

Culpable absenteeism is a failure to report for work, despite being fit to do so.  This includes fraudulent use of leaves.  Where there is clear evidence that an employee’s absence is culpable, it should be managed through your organization’s policy on progressive discipline.

Non-culpable, or innocent, absenteeism is absence from work for legitimate reasons, such as illness or injury.  “Grey zone” absences are those which present themselves as legitimate, but the employer has reason to suspect its validity.  An example would be an employee regularly calling in sick on Fridays in the summer.  Grey zone absences should be treated in a similar way to non-culpable absences; unless, of course, proof of culpability becomes evident.

Neither non-culpable nor grey zone absences should be addressed using discipline. Doing so carries the risk of giving rise to claims of discriminatory employment practices, be it through the courts or the Human Rights Commission.

Addressing non-culpable and grey zone absences requires attendance management tools and programs, as well as skilled and dedicated management personnel. While there are wide varieties in the details of such programs, the consistent framework is the following;

  • Clearly state the objectives of the program
  • Develop and communicate an attendance policy
  • Establish targets or standards of acceptable attendance
  • Define “excessive absenteeism”
  • Assign line managers the responsibility for managing the attendance of their staff, using their discretion on attendance reviews and the timing of disciplinary action.
  • Develop modified work procedures for health-related absences emphasizing the resources available to improve attendance (e.g. EAP, LTD, flexible hours, tele-work, etc.)

There are a number of ways that Humaniqa can assist your organization in managing absenteeism. We offer several attendance management tools and templates, as well as supervisor training.


Connecting with Employees: Recognizing Effort and Demonstrating Value September 21 2015

We often talk about how the attitudes regarding workplace rewards are changing. As younger employees enter the workforce, office tenures are becoming shorter. There is a growing body of evidence to support that the value of work incentives have shifted from the financial towards the emotional; employees are growing more concerned with matters of organizational culture, work-life balance, and social ties. This isn’t to say that financial incentives aren’t important, but that they do not feel the void left by social affirmation. To keep employees loyal, it is important to keep them engaged; to keep them engaged, it is important to provide recognition and demonstrate that they themselves are valued within the company.

The idea of offering recognition as an incentive is hardly a novel one. The idea of recognition as an award is the same sort of reasoning behind the archetypical “Employee of Month” wall, though the concept here may be inherently flawed. One key aspect of recognition mechanism is the understanding that they are ‘fair’: all employees should have a chance to receive it. The behaviors for which employees are rewarded should be specific and it should be awarded as close to immediately as possible. Lastly, all employees who meet the requirements should receive recognition, rather than selecting one from a pool of nominees. This serves to eliminate the possibility favoritism, both real and perceived.

But recognition needs not necessarily be demonstrated through and award system. There are a variety of ways in which employers can show workers that they care. Rather than offer a variety of expensive perks and benefits, here some cost effective ways that employers can connect with employees: 

Be Present.

The simplest things can often be the most effective. Even if for short appearances, it is important for leaders to be present in the office and participate actively as part the team. This can be as involved as leading regular meetings, or even simply attending office celebrations. The simplest things can also be the most difficult; as a leader, your time may be both valuable and in short supply. However, this just makes it all the important that you set aside the time ensure employees see you as a person, rather than a title.

Be Timely.

As much as possible, it is important to try to be timely with giving employees feedback. People learn best when they are provided with immediate reinforcement; the longer their kept waiting, the less powerful the link between the behavior and the reward (or even punishment, for that matter) becomes.

Be Authentic.

There is a certain “culture of propriety” that begets automatic questions and responses. “How are you today?” “How was your weekend?” Chances are, you often ask these questions without much caring about the answer; we all do. There’s nothing wrong with that in and of itself. But when attempting to demonstrate value to an employee, it is important to speak with sincerity rather than automaticity. When you don’t mean it, people can feel it.

Teach Balance.

It is important for employers to demonstrate healthy work-life balance for their employees. Workers who feel burned out by their jobs are unlikely to stick around and less likely to be productive members of the team. Balance goes beyond the mere number of hours worked and can also manifest itself in the form of team outings and activities.                                                                   

Offer up Challenges.

In addition to recognizing employees for their accomplishments, it is equally important to offer them a chance to accomplish something. Giving them unique assignments can also help demonstrate that you trust them and have faith in their capabilities.

Individualize.

While people might enjoy being a part of a team, that doesn’t mean that they are interchangeable. People want to feel valued based on their individual traits and contributions. Just as different people value different things, the way you approach a given employee should feel like a unique encounter. People don’t want to feel like you’re talking to anyone; they want to feel like you’re talking to them.

It is often said that the workplace is changing. As the older generations retire, new workers arrive with their own sets of beliefs and values. But while it may be true that organizational values are shifting, people have always desired affirmation. People have always longed to recognized, and people have always desired to work somewhere they feel that they belong. For workers, both new and old, that sense of belonging can be a fundamental component in the creation of loyalty.


Defining the Exit Interview September 14 2015

A couple of weeks ago, you may have seen our Exit Interview template circulating around. Looking at it you may have thought, “Why should I interview an employee who doesn’t work for me anymore”, or “What exactly is the point of an exit interview”? When an employee leaves an organization, either voluntarily or involuntarily, there is always important information that can be learned. Perhaps there was an employee who felt disconnected form the team, and chose to leave for a workplace where they felt they would be better appreciated; maybe there was an employee who left because they felt that they were not able to perform to the standards of the company because they received inadequate training; sometimes people leave an organization because they have issues with management and a solution could be to have management training. This is the kind of information that can be gained by conducting an effective exit interview.

One definition of an exit interview found in an online article is as follows:

Exit interviews are interviews conducted with departing employees, just before they leave. From the employer's perspective, the primary aim of the exit interview is to learn reasons for the person's departure, on the basis that criticism is a helpful driver for organizational improvement.”

http://www.businessballs.com/exitinterviews.htm 

Let’s break this down. “Exit interviews are interviews conducted with departing employees, just before they leave”. Just as the name would suggest, the interview is conducted prior to the employee departing from the organization. Notice that the line indicates “just before they leave”, meaning that it does not happen right when they give their 2 weeks’ notice. Employers should inform the departing employee that they wish to conduct the exit interview on their lat day of work. This can give that employee a chance to consider their time at work, and prepare for the interview, and where suggestions for improvements can be made.

“From the employer’s perspective, the primary aim of the exit interview is to learn reasons for the person’s departure…” For those of you who may be wondering what the point of an exit interview is, here you have it. The main focal point of the interview is to determine the reasoning behind the person’s departure. This interview is an opportunity for employers to gain valuable feedback on their organization, from the perspective of someone with whom the relationship did not work out, for whatever reason.

The feedback gained from these interviews can be both positive and negative. Positive feedback helps to reinforce what you are doing right as an organization, and the negative feedback can highlight the areas that need more attention. This brings us to the last little bit, “…on the basis that criticism is a helpful driver for organizational improvement”. This line basically speaks for itself. If there is something to be criticized, then there is something to be improved. Some improvements could include a better orientation processes, clearer communication channels, defined discipline procedures, and many more! All of these are extremely valuable information that could be learned through a simple five minute exit interview.