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Wow. I don’t know how to answer that question. Specifically, you need legal counsel on a matter involving potential litigation, which I’m not qualified to provide. Sorry but you should definitely ask a lawyer.
in reply to: New Year’s day stat holiday – Jan 1, 2022 #90326From our payroll expert, Alan McEwan:
Yes, the employer in Ontario can unilaterally substitute December 31 for the January 1 public holiday. Does that mean the Xmas and Boxing Day statutory holidays are being substituted with December 28 and 29 as well?in reply to: Vacation pay – use it or loose it #90323Here we go. From our payroll expert. Sorry to keep you waiting for so long.
No. an employee can forfeit the time, but not the pay, if vacation time is taken. Once earned, vacation pay can not be reduced other than by payment to the employee.
Time and attendance systems are often configured to entitle an employee to PDOs at the start of each year, and then track the usage as employees take time off. Some employers carry this forward to payroll where taking paid sick time reduces the regular hours on the pay stub, with the PDO hours showing on a separate line. As well, the pay statement might be configured to show the remaining PDO time available.in reply to: Drug and Alcohol policy #90312That’s a really great Q and a really hard one to answer. There’s a Supreme Ct case called Stewart v Elk Valley that allowed an employer to terminate an employee for failing to self-disclose. But it’s very limited and based on the terms of the testing policy. Here’s a story we did on the issue a few months ago. Pls feel free to contact me directly if you want to discuss further. glennd@bongarde.com.
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Companies have traditionally relied on testing to determine if employees use alcohol, drugs and other impairing substances at work. While testing remains a crucial safety measure, many companies now ask employees to self-disclose their alcohol/drug problems, typically on a non-disciplinary basis. The idea: Recognize that substance abuse is a problem, not a form of misconduct, and get employees who come forward voluntarily the help they need. Then if employees don’t take the offered amnesty and later test positive, you can discipline them.
Although a recent Canadian Supreme Court called Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, recognizes the general legality of that approach, your policies must apply it very carefully. It comes down to a balance between your interest in workplace safety and the employee’s privacy and right to accommodations.Rule 1: The policy must be not only necessary to ensure safety but carried out in the least privacy-intrusive way possible.
Rule 2: The policy must accommodate employees’ disabilities (remember that drug/alcohol dependency and addiction are “disabilities” under human rights laws) to the point of undue hardship.
Is Your Policy Up to Snuff?
How can you tell if your own self-disclosure policy is legal? To help you make that determination, we’ve looked at actual cases where courts and arbitrators applied the above rules to evaluate the legality of such policies. We then rolled the common problems that caused a policy to fail scrutiny into a fictional Model Substance Abuse Self-Disclosure Policy, a policy from hell demonstrating the pitfalls you need to avoid.
Your assignment: Look at the policy and identify as many of the problems as you can.The Substance Abuse Self-Disclosure Policy from Hell
1. Scope: This Policy applies to all ABC Company employees regardless of job, job title or employment-status.
2. Duty to Disclose: Employees must notify their supervisors if they currently use or have used drugs, alcohol and other impairing substances in the past 6 years.
3. Independent Medical Exam (IME): Upon disclosure, employees will be removed from duty, placed on leave and required to undergo an IME conducted by an addictions specialist selected by ABC Company. If the IME finds the use is related to an addiction or dependency, the employee will be offered reasonable accommodations, medical assistance and support designed to ensure his/her return to work as quickly as possible; if the IME finds the use to be recreational, the employee will be subject to discipline in accordance with the ABC Company Discipline Policy.
4. Return To Work: Employees may return to work upon completing the following rehabilitation, treatment and monitoring conditions:
(a) Abstention from drug and alcohol use during the return to work process;
(b) Completion of a prescribed treatment program consisting of: i. attending at least ___ Alcoholics/Narcotics Anonymous meetings per week over a ______ period; ii. maintaining regular and meaningful contact with an AA/NA sponsor; and iii. completing any 12-step program the sponsor recommends.
(c) Passing random drug/alcohol tests every 2 weeks during the return to work process.
(d) Undergoing second IME that determines that the employee no longer has an addiction or dependency and is ready to return to work.
5. Last Chance Agreement: After fulfilling the above return to work conditions, the employee will be reinstated after signing a Last Chance Agreement promising to adhere to his/her treatment program, submit to random testing and agree that any further alcohol/drug violations will result in termination.
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Click here for a corrected and cleaned-up version of the Model Policy.What’s Wrong With This Policy?
While the non-disciplinary self-disclosure approach is in line with the Elk Valley case, almost every provision implementing the concept is problematic.
1. Covers All Employees Instead of Safety-Sensitive Ones
The red flag is the phrase “all employees.” While requiring all employees to be fit for duty is perfectly appropriate and necessary safety objective, the provisions set out in this Policy are highly privacy-intrusive and justified only when limited to safety-sensitive workplaces and employees who perform safety-sensitive jobs.
2. Duty to Disclose Is Too Broad
Based on case law, there are 3 things employers may ask employees to disclose:Current drug/alcohol use;
Current drug/alcohol dependency; and
Drug/alcohol dependency in the past 6 years.
What employers can’t ask about is past use. Explanation: Current use and dependency make workplace impairment a compelling safety risk justifying mandatory disclosure; ditto for past dependency over 6 years since scientific evidence shows that users are at heightened risk of relapse during that window. By contrast, courts have ruled that past use (especially going back as far as 6 years) doesn’t significantly increase the risk of current use or impairment.
3. IME Requirements Are Overly Intrusive
While employers have a right to collect private health information about an employee’s drug/alcohol use, they must do it in the “least intrusive” way possible. Because they’re so comprehensive and delve so deeply, IMEs are highly problematic and are generally supposed to be used only as a last resort. There are 2 things about the Model Policy’s IME provisions that courts deem as overly intrusive:The IME (and employee’s removal from the workplace) is triggered automatically after an employee discloses without consideration of the employee’s individual circumstances or whether he/she has been involved in any workplace safety incidents;
The IME is performed by a specialist selected by the employer, which flies in the face of court rulings that addiction specialists be brought in only after attempts to gather the information from the employee’s primary care doctor and that the employee should have a say in which specialist does the exam.
Note: The one thing the provision does right is distinguish between addiction/dependency and recreational use and recognize that the former is a disability subject to accommodations while the latter is not.
4. Return To Work Conditions Are Overly Restrictive
Two of the return to work provisions raise red flags:Good News: The required treatment program (Sec. 4(b)) follows medical protocols and best practices; Bad News: The concept of prescribing any single program to be followed in all cases violates the rule that accommodations be tailored to the individual circumstances and needs of the particular employee.
Requiring employees to undergo a second IME after successfully completing their rehab and treatment programs is overkill (Sec. 4(c)).
The other return to work provisions are generally acceptable and fairly standard, including the requirement that employees abstain from drug/alcohol use (Sec. 4(a)) and submit to random testing during the process (Sec. 4(d)).
5. Requiring Last Chance Agreement Is Unfair & Discriminatory
Agreements giving wayward employees one last chance to save their job provided they don’t slip up again are fine for disciplinary, performance and other workplace problems, even in cases where the workplace problems were related to an employee’s drug/alcohol addiction or dependency. What makes the last chance provision in the Model Policy problematic and distinct from other last chance agreements involving employees with drug/alcohol problems is the trigger, namely, the employee’s self-disclosure that he/she has such a problem even if the employee hasn’t created any actual workplace problems or committed any disciplinary infractions. In other words, simply having a drug/alcohol dependency or addiction is treated as an offence requiring automatic imposition of a last chance agreement instead of a disability requiring accommodation.
What the Policy Should Say
The good news is that the Model Policy’s approach is sound and can be made right by some key corrections. Click Here for a cleaned-up version.in reply to: Return to work and not following #90292A few questions I had while reading this are:
Does the work afford the possibility for the employee to to come and go through the day? Is there flexibility such that you could work 9-12, then 3-7, then 10-12, so long as in a 24 hour period you were working 8.5 hours. In other words, are you measured by results or hours?
Are you concerned about losing this employee because they are critical or because of the circumstances and a desire to “do the right thing” or be the “good guys”?
Have you been diligent in documenting everything to date?
On the basis of what you have expressed, here are our thoughts.
First, it seems you have done everything and more to accommodate the employee, including developing a return to work plan, for what we assume would be some type of caregiver leave – although you have not specifically addressed whether or not this has been medically diagnosed, where you would be legally bound to accommodate.
Secondly, the employee has not held up his end of the RTW plan. I am sure that the PTSD issues at home are a struggle, and I am empathetic, but he is an employee and work needs to be done.
Third, it seems this is having a negative effect on the culture. Other employees are probably frustrated with the exceptions to the rules that are being afforded to one employee. They are probably unhappy with having to cover work or not being able to depend on a colleague. They are probably unhappy with the daily uncertainty, will he be here today or won’t he?
It would seem like you are at a real risk of wanting to be a “good guy” with one employee and unfortunately coming across as the “bad guy” to all the rest of your employees.
There are two obvious options you can take, each with a certain degree of risk.Make the employee 100% remote, either contract or employee, and managed by results not hours. I don’t know if the work affords this type of transition (software development, writer, etc.) or not, but if it does and the employee is a good worker when they can work, this may be an option to look at. Of course transitioning an employee from full-time employment to a contract position means a new compensation and management model, as well as tax and benefits implications, but it can be done with minimal downside if both parties are amenable to it.
Terminate the employee. You cannot run a company by managing for one employee. You have accommodated (it would seem) and it appears as if you are experiencing undo harm, at least you have a very strong case for it if the employee was to file a wrongful termination suit. This will show the rest of the team that you support their personal needs, but to a point, and that you have a business to run, where rules are rules, work needs to be done, and the team has to depend on each other while also being accountable to each other. However, if this is the option that you pursue, we cannot stress how important it is that you had the RTW plan and all conversations documented.
The best option here might be for the employee to take a leave of absence for caregiver leave where he and his wife can get the support needed and a realistic plan that allows him to return to work in a full-time capacity.Meaghan Wilkinson replied 1 year agoEdit Delete
Hello,To answer the questions above:
1. Employees need to be available to from 9:30-3:30 our core hours. This is the time we request that everyone is to be in the office.
2. He is a good worker and completes all his work – at this point HR is ready to align with policies and terminate – the managers don’t agree with it
3. We have conversation and documentation in for everything on this one.Thank you very much for the suggestions.
Thank you, Rick. These situations can be difficult to navigate, I appreciate you prompt replies and wisdom.
No, you had hired the employee to work in Canada. You had allowed for remote work during the pandemic, you did not allow for a permanent move. You may want to offer transitioning the employee to a contractor position if you wanted to keep the employee and eliminate your liability, but moving to another country is a clear frustration of contract. The employee may respond that you have allowed it up to this point, but I think you could reply that his/her working in Europe has made it so the business would have to absorb unique tax and payroll liabilities it cannot take on.
Hello Rick,
If we decide to terminate this individual, would there be an issue using the following language?
Due to economic conditions and the risks involved with employing individuals living outside of Canada, we will be terminating employment.Thank you, Rick.
I appreciate your quick and fulsome reply. Hope you have a lovely holiday season.Administrator
It is tough to say exactly how much more to give, because it depends on their current compensation and the economic landscape. Given the employees age, they may opt for early retirement with a rich enough buy-out.
You need to look at your business and see what is fair for you to offer. I can advise you that it is very likely the employee will pursue some type of action if you only offer the minimum – and it is very likely that the employee will win the action given the circumstances you have described.
Ask yourself, how much are you comfortable paying and treat it as a negotiation to get to that point.
Administrator
Anita Lau
Thanks for the advices. They are very useful.
The employee in question is now around 63-65 years old, and I doubt he will prepare to find another job in the same industry, if after lay-off.
The new department of the company will focus more on use of new social media, e.g. facebook, websites, wechat, cell phone, etc. to develop our products. The employee in question should not have enough knowledge with the new technology.
My question is: Will the termination with no cause and lay-off be treated the same ? We have sufficient background documents (e.g. business strategy and proposal) for valid reason of re-structure and not special pin-point the employee in question,
If we agree to pay the employee in question more than minimum required by the law, that is, 11 weeks, then how much more we should pay, so as to avoid possible litigation ? Given he has worked in the company for 22 years
From Pay For No Work – Part I – On-Call by Donovan Plomp of McCarthy Tétrault LLP
In addition to vacations and statutory holidays, there are two key times when an employee who is not performing any productive work may be entitled to be paid under the Employment Standards Act:
– While on-call other than at home; and during travel time.
On-call employees are “at work” and are entitled to be paid regular wages as well as overtime for those hours of work. The Act provides that an employee is “at work” while on call at a location designated by the employer, unless that location is the “employee’s residence”, a term which is narrowly construed and probably does not include most temporary accommodation provided by the employer at or near the worksite.
Employees who are not in their own homes and who are required by the employer to be available to work on an as-needed basis are on-call and “at work” for the purposes of the Act, even if they are sleeping or watching television. There are a number of exemptions set out in the Regulation relating to live-in home support workers, night attendants, residential care workers and certain industry-specific workers such as fish farm workers.
Watch out for:
– Employees who are required to remain at or near the workplace after work and who may be required to work on an as-needed basis; and
– Employees who are on-call at home, but who are subject to significant restrictions, such as a short response time, which effectively curtail the employees’ mobility or freedom.Possible solutions:
– Do not require employees who remain at the workplace after their hours of work to be available to work on an as-needed or emergency basis; and
– When preparing guidelines for employees on-call, carefully consider the reasonableness of response times or other restrictions.in reply to: Salary Increment #90283According to Bloomberg, the national average is 4.2%, with Alberta coming in just below at 3.8%.
in reply to: Salary Increment #90282No specific role. Question is what is the projected salary increase for 2023 in Alberta in manufacturing industry.
in reply to: Change of Start Date on an EA #90281Yes, if the start date on an offer letter needs to be changed after the employee has signed it, it is recommended to issue a new letter with the corrected start date. This will ensure that all parties have a clear understanding of the agreed-upon start date, and it will also serve as a legal record of the updated terms of employment.
When issuing a new offer letter, it is important to clearly indicate that it supersedes any previous offer letters or employment agreements.
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