[Haley O’Halloran]

in reply to: work from home accommodation #108581

Now knowing that the employee is in Alberta, I would treat the physician’s four-month work-from-home recommendation as the beginning of the accommodation process rather than automatically as the final accommodation. Under the Alberta Human Rights Act, the employer has a duty to accommodate disability-related needs to the point of undue hardship. You can request sufficient medical information to understand the employee’s functional limitations, restrictions, expected duration and accommodation needs, but you generally should not require the employee to disclose their diagnosis or unnecessary medical details. Since a traditional FAF may be more focused on appointment attendance and scheduling flexibility, I would consider using a targeted medical abilities/accommodation form instead.

The form could ask whether the employee has restrictions that prevent or limit their ability to attend the workplace, whether they can perform the essential duties of their position while working from home, whether full-time WFH is medically required or whether alternatives such as hybrid work, flexible hours or time away for appointments would address the restrictions, whether there are any commuting-related restrictions, and the expected duration of the restrictions. I would also meet with the employee to understand the barriers they are experiencing and discuss potential options. The fact that their physician recommended WFH does not necessarily mean WFH is the only accommodation the employer must provide; however, the employer should not simply reject the recommendation or substitute its own opinion for the medical information. The accommodation process should be collaborative, with both the employer and employee participating in identifying an effective and reasonable solution.

For consistency and fairness, I recommend documenting the request, medical information received, clarification requested, accommodation options considered and the final decision. Medical information should be kept confidential and separate from the employee’s regular personnel information, with the manager receiving only the information necessary to implement the accommodation. You should also establish clear expectations around duties, availability, communication and performance while the accommodation is in place, and set a review date before the four-month period expires. In this situation, I would generally avoid immediately refusing the WFH request; instead, consider implementing it temporarily while obtaining the necessary functional information and determining whether full-time WFH is required or whether another effective accommodation would meet the employee’s needs. This approach supports the employer’s duty to accommodate while ensuring that the accommodation is appropriate, individualized and regularly reviewed.

The process is similar to Ontario, but I just wanted to point out the main distinctions for your case. Let me know if you have any other questions!

-HRInsider Staff

[Haley O’Halloran]

in reply to: work from home accommodation #108567

Assuming this employee is in Ontario, I would treat the doctor’s four-month WFH recommendation as the start of the accommodation process, not necessarily the final answer. You should generally accept the medical need in good faith, but you are entitled to obtain enough functional information to understand why WFH is required, whether other accommodations could meet the same restrictions, and how the employee can continue performing the essential duties of the role. The OHRC specifically says employers should focus on functional limitations and accommodation needs rather than diagnosis, symptoms or treatment details.

A traditional FAF may be broader than necessary if the real issue is appointments, scheduling flexibility, or the ability to work remotely. Instead, I would send a short, targeted accommodation questionnaire for the physician. For example, ask whether the employee has disability-related restrictions affecting their ability to attend the workplace; whether full-time WFH is medically required or whether hybrid work, flexible start/end times, intermittent time away for appointments, modified hours, or another arrangement would satisfy the restrictions; the expected duration; whether there are restrictions on travel or commuting; and whether the employee can perform the essential duties of their position while accommodated. You should not ask for the diagnosis unless there is an unusual and demonstrable reason that the accommodation cannot otherwise be assessed. The OHRC expressly supports targeted questions of this type where an employer needs to distinguish between options such as working from home, flexible hours, job modification or leave.

I would also meet with the employee before deciding. Explain that you are not challenging their physician’s medical opinion; you are trying to identify the accommodation that appropriately addresses their functional needs. Ask what barriers they experience with on-site work, what flexibility is needed around appointments, and whether there are alternatives that would work for them. Be particularly careful not to say, “We don’t think you need to work from home.” The employer can explore reasonable alternatives, but should not simply substitute its own assessment for medical evidence.

For fairness, I recommend using a consistent accommodation process rather than focusing on whether other employees are allowed to work from home. Accommodation is individualized, so two employees can legitimately receive different arrangements.
Your process should include:
documenting the request,
medical information received,
questions asked,
options considered and
final decision;
using the same functional-information standard for comparable accommodation requests;
restricting medical information to HR or others who genuinely need it and keeping it separate from the employee’s ordinary personnel records;
telling the manager only what they need to implement the accommodation, such as “WFH approved until January 15” or “flexible scheduling permitted for medical appointments,” rather than providing medical details;
establishing performance, availability, communication and attendance expectations that remain applicable during the accommodation;
setting a review date before the four months expire rather than allowing the arrangement to simply continue indefinitely; and
paying reasonable costs associated with medical information that you specifically require for the accommodation process.

In your situation, I would temporarily implement the WFH arrangement while you obtain clarification, unless there is a genuine operational or safety reason that makes that impossible. Then assess whether four months of full WFH is the appropriate accommodation or whether, for example, flexible hours plus appointment time, a hybrid arrangement, or another measure fully addresses the medical restrictions. The legal obligation is to provide an effective accommodation to the point of undue hardship; the employee does not necessarily have an absolute right to their preferred accommodation, but the employer must actively investigate appropriate options rather than simply rejecting the physician’s recommendation. You should also create an accommodation plan once settled on an arrangement.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Document filing -best practices #108557

Your current approach is generally the better one. I would not automatically place the spouse’s email, or the Head of School’s response to the spouse, directly in the employee’s regular personnel file simply because the spouse is connected to the employee. The spouse is not the employee, and the communication is primarily a parent/school interaction. However, because your Dual Role Policy makes family conduct relevant to the employee relationship, HR has a legitimate reason to preserve the correspondence where it could become relevant to administering that policy.

I would maintain a separate, confidential Employee Relations/Incident file associated with the employee, much as you are doing now. For example: HR > Employee Relations/Incidents > [Employee Name] > Dual Role Policy – Family Communications. Save the relevant correspondence there along with a brief factual note identifying the date, who communicated with whom, the applicable policy provision, and why HR retained the record. Avoid characterizations such as “hostile spouse” or “problem family”; document observable facts and the policy connection instead. Access should be limited to HR and others with a genuine need to know. Limiting access to personnel-related information is also consistent with general privacy and records-management principles.

I would distinguish the supporting documentation from anything that eventually becomes part of the employee’s formal employment record. If the spouse receives one reminder and nothing further happens, I would leave the correspondence in the incident/employee-relations folder. If, however, the employee is later formally counselled, warned, or disciplined under the Dual Role Policy because of an ongoing situation involving their family, then the formal document issued to the employee—for example, a letter of expectations or written warning—could appropriately go in the employee’s personnel file. The underlying spouse emails can remain in the separate case file as supporting documentation. That approach keeps the personnel file from becoming a repository for every complaint or allegation while still preserving the evidence supporting an employment decision.

One additional consideration is student/family privacy. Because this is a school, these communications could contain information about the employee’s child, other students, teachers, or other parents. Retain only what is reasonably necessary for the HR purpose and avoid duplicating sensitive information unnecessarily. Records-management guidance generally supports restricting access according to need and protecting records throughout their lifecycle. I would also consider adding a short records-management provision to your Dual Role Policy or HR procedure stating that concerns involving employee-family conduct may be documented in a confidential employee-relations file and, where employment action results, the relevant employment documentation may be retained in the employee’s personnel file.

I hope this helps!
-HRInsider staff

[Haley O’Halloran]

in reply to: Vacation for an employee who works in one province but lives in another #108432

Generally, yes. For provincially regulated employees in Canada, the applicable employment standards are usually determined primarily by where the employee actually performs their work, rather than where they live. This means that if an employee resides in Province A but works full time at an employer’s workplace in Province B, the vacation standards of Province B will normally apply, including its minimum vacation time and vacation pay requirements.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Safety-Sensitive Position: Alcohol Use, Fitness for Duty & Duty to Inquire #108405

Because this employee operates a cement mixer on public roads, I would treat the position as clearly safety-sensitive and address the situation primarily as a fitness-for-duty issue—not as misconduct or an assumption that the employee has an alcohol-use disorder. In BC, WorkSafeBC requires employers not to assign workers to activities where a reported or observed impairment may create undue risk, and not to knowingly permit a person to remain at a workplace where alcohol or another substance affects their ability to work safely. The following approach would be reasonable, although given the driving/public-safety and housing components, I would have BC employment counsel review the actual steps and correspondence before significant discipline, testing, or termination.

1. Is the information sufficient to temporarily remove him from safety-sensitive duties?

In my view, yes, there is enough information to justify a precautionary, temporary removal from driving and other safety-sensitive duties while you investigate fitness for duty, particularly given the combination of the alleged consumption level, the reports of intoxicated contact with the dispatcher, the incident involving being slumped over a steering wheel, and the extraordinary consequences if a cement-truck driver is impaired or significantly fatigued. WorkSafeBC expressly says an employer must not assign a worker to activities where reported or observed impairment may create an undue risk.

I would characterize the removal as non-disciplinary and precautionary, not a finding that he is an alcoholic or has attended work impaired. If alternative non-safety-sensitive work is reasonably available, consider it; otherwise a short paid administrative leave while obtaining appropriate information is generally lower-risk than an unpaid suspension based predominantly on unverified allegations.

2. Has the duty to inquire been triggered?

I believe you should proceed on the basis that the duty to inquire may have been triggered. Addiction is recognized as a disability for human rights purposes, and the BC Human Rights Tribunal says an employer must inquire where it knows or reasonably ought to know that there may be a relationship between concerning workplace conduct and a protected characteristic before taking adverse action. The employee does not necessarily have to use the words “I have an addiction” before that obligation arises.

That does not mean you must conclude that he has an alcohol-use disorder. It means you should give him an appropriate opportunity to disclose whether there is a medical, disability, dependency or other health-related issue affecting his ability to safely perform his work before moving into discipline or termination.

3. How should the initial conversation be approached?

Meet privately with the employee, preferably with two management representatives present. Focus on safety and fitness for duty rather than consumption or diagnosis. Explain that information has come to management’s attention that raises concerns about whether he can safely perform a safety-sensitive driving role, including reports of significant alcohol consumption and specific incidents involving apparent intoxication. Give him a meaningful opportunity to respond and ask whether there is any health, medical, dependency or other issue that could affect his ability to safely perform his duties or for which he may require workplace accommodation.

Avoid statements such as “we know you’re an alcoholic,” “you drink 30 beers every night,” or “you have a drinking problem.” You can put the substance of credible allegations to him, but distinguish clearly between reported information and established facts and avoid unnecessarily identifying coworkers who provided information. Also make clear that the concern is not lawful off-duty alcohol consumption by itself—it is the potential impact on fitness for safety-sensitive duties.

4. What medical information can you reasonably request?

If the employee identifies a medical, dependency or health-related issue (or if sufficient uncertainty remains about his ability to drive safely), you can reasonably request fitness-for-duty information from an appropriate healthcare professional. The request should describe the essential duties and hazards of the job and ask whether he is medically fit to safely operate commercial/heavy vehicles, whether there are functional restrictions or limitations, their expected duration, whether accommodation is required, and when his fitness should be reassessed.

Generally, you should not ask for complete medical records or more diagnostic detail than is reasonably necessary. BC privacy principles require employers to limit medical information collection to what is reasonably required for the employment purpose, while the Human Rights Tribunal recognizes that employers may need information about condition, prognosis, capabilities, restrictions and limitations to discharge the accommodation obligation.

5. Is fitness-for-duty assessment or D&A testing appropriate?

A formal fitness-for-duty assessment is the stronger first step here. Given the position, you could provide an occupational physician or other appropriately qualified practitioner with the job demands and the factual safety concerns and ask for an opinion about fitness to perform safety-sensitive work. If there is a suspected substance-use disorder, an occupational/addiction medicine assessment may be more useful than simply requesting a generic doctor’s note saying the employee is “fit.”

Drug and alcohol testing is more legally sensitive. Canadian law recognizes reasonable-cause and post-incident testing in appropriate safety-sensitive circumstances, but testing represents a significant privacy intrusion. The Supreme Court has distinguished reasonable-cause testing from broad random testing, emphasizing the need for an appropriate safety justification. The reports of heavy off-duty drinking alone would not automatically justify testing on any particular morning. If there are contemporaneous indicators—smell of alcohol, slurred speech, abnormal coordination, unusual behaviour, an accident/near miss, etc.—reasonable-cause testing may be much more defensible, particularly where you already have a properly drafted D&A policy. I would obtain legal advice before ordering testing based solely on the information currently available.

6. How should the residential/site-security arrangement be handled?

Separate the employee’s private residential status from his security duties. If he is expected to provide security, respond to incidents, drive, patrol, or otherwise perform work while “on duty” as site security, he must be fit to safely perform those functions. You could therefore temporarily remove him from the security component as well, or establish clearly defined duty periods during which he must remain fit for duty. Being permitted to consume alcohol while genuinely off duty in his residence is a different issue and should not automatically become employment misconduct merely because the residence happens to be company-owned.

I would not terminate the housing arrangement simply because you suspect alcohol dependency. Review the housing agreement separately. BC’s Residential Tenancy Act specifically addresses employer-provided housing and permits an employer to end certain employment-linked tenancies when employment has actually ended, subject to prescribed notice requirements; it does not mean an employer can simply remove an employee from their residence because safety duties have temporarily been suspended. Given that rent is being reduced in exchange for security services, I would also have counsel review whether the arrangement creates separate employment standards, tenancy, on-call/working-time and working-alone issues.

7. What immediate safety steps should be taken?

Until the concern has been reasonably addressed, I would not allow him to operate the cement mixer or perform other high-consequence safety-sensitive duties where there is a reasonable concern about fitness. WorkSafeBC’s rules place obligations on both the employee and employer: workers must report impairments affecting safe performance, and employers cannot assign impaired workers to work creating undue risk. If he reports to work displaying signs of impairment, do not let him drive himself home; arrange safe transportation and document the observable indicators.

At the same time, avoid discipline merely for suspected addiction or for lawful off-duty drinking. Your immediate decisions should consistently be framed around present safety risk, fitness for duty and obtaining sufficient information, followed by accommodation if a disability is identified. Safety may ultimately limit the accommodations available in a commercial-driving position, but that conclusion should follow an individualized assessment rather than be assumed in advance.

8. What documentation and next steps would you recommend?

Before meeting with him, prepare a confidential chronology identifying what was reported, by whom, when, whether the information was firsthand or hearsay, the approximate dates of the dispatcher/vehicle incidents, and any direct observations by supervisors. Gather the employee’s job description, commercial-driving requirements, security responsibilities, employment agreement, housing agreement, D&A/fitness-for-duty policies, previous safety incidents and any applicable collective agreement. Do not turn the bags of cans alone into “proof” of his personal consumption; the evidentiary value is limited unless you can establish who consumed the alcohol.

I would then: temporarily restrict the safety-sensitive duties; conduct the non-disciplinary duty-to-inquire meeting; document his response; provide a carefully drafted fitness-for-duty medical request if warranted; and reassess once you receive the medical information. I would hold off on discipline, termination, eviction or compulsory D&A testing until that initial process is completed, unless he actually reports impaired or another immediate incident occurs. Given the unusually significant public-safety exposure here, having BC counsel review the FFD request and any proposed testing decision before implementation would be particularly advisable.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: years of service #108401

I think your approach is reasonable, particularly given that the employee’s previous employment period ended and an ROE was issued, followed by a later rehire. In that situation, I would generally not change the HRIS “original hire date” to the employee’s historical start date simply to make the system display nine years of service. Doing so could create confusion about the employee’s actual employment history and could potentially make the HRIS inconsistent with the ROE and other payroll records. The fact that the employee received severance when their previous employment ended is also an important distinction to preserve in your records.

A good best practice would be to maintain the employee’s current HRIS service date based on their rehire date, while maintaining a separate internal record that clearly identifies their recognized service for purposes where previous service is credited. This could be a note in the employee’s personnel file, a service-date adjustment record, or another HR tracking document showing the original employment dates, termination date, rehire date, and the circumstances under which previous service is being recognized. You have already adjusted the vacation entitlement so that the employee receives the appropriate benefit based on their recognized service, which is arguably more important than having the HRIS display a particular number.

I would also consider whether the HRIS has a custom field, employee note, secondary service date, seniority date, or reporting field that could be used to distinguish “continuous employment date” from “recognized service date.” If it does not, you could establish a standardized internal practice for situations like this. For example, the system could show “5 years” based on the current employment record, while HR’s confidential records identify “9 years recognized service for vacation/benefit purposes.” If other employees can see the HRIS service date, I would be particularly cautious about changing it to nine years because it could imply nine years of continuous employment when that isn’t actually the employee’s current period of employment.

The main thing I would recommend is consistency and documentation. If the organization has determined that previous service continues to be recognized for particular purposes, document exactly what is being recognized and for which benefits, rather than trying to make the HRIS solve something it technically cannot accommodate. You can also explain to the employee that the HRIS is displaying their current employment record and cannot reproduce historical employment periods, but their recognized service has been separately recorded and is being used when calculating applicable entitlements. If there are legal or contractual requirements concerning how the break in service, severance, vacation entitlement, or seniority must be treated, however, I would have employment counsel confirm the approach for your jurisdiction rather than relying solely on the HRIS configuration.

-HRInsider Staff

[Haley O’Halloran]

in reply to: supervisor and employee issues #108399

It would be reasonable to meet with the senior leader and listen carefully to the concerns before determining whether a formal harassment investigation is warranted. The fact that you personally have not witnessed inappropriate conduct is useful context, but it does not necessarily mean that the employee’s concerns should be dismissed. Your meeting should focus on obtaining specific examples: what was said or done, when and where it occurred, who was present, how frequently it has happened, whether there were witnesses or documentation, and how the behaviour has affected the employee. It is also important to distinguish between unpopular management decisions, legitimate performance feedback or criticism, and conduct that crosses the line into harassment, bullying or intimidation.

Based on what you have described, it may be appropriate to explain that not every difficult or uncomfortable workplace interaction constitutes harassment. A supervisor can make unpopular decisions, allocate resources differently, provide constructive criticism and hold employees accountable. However, the manner in which those things are communicated matters. If the employee is describing a recurring pattern of belittling, threats, humiliation, intimidation or other unreasonable conduct, that could warrant further assessment even if individual incidents might not appear particularly serious in isolation. In particular, I would take the concern about psychological safety seriously rather than focusing solely on whether the conduct technically meets the definition of harassment.

If, after your meeting, the concerns appear to involve primarily communication style or interpersonal conflict rather than harassment, an informal intervention could be a reasonable first step—provided the senior leader genuinely feels comfortable and safe having that conversation. You might recommend a structured conversation focused on specific behaviours and their impact rather than accusing the supervisor of harassment. For example, the senior leader could explain that certain interactions have felt intimidating or patronizing and identify what communication approach would be more productive. Depending on the circumstances, coaching, facilitated discussion or leadership training could also be appropriate. I would document the concerns raised, the steps you took to assess them, and any recommendations or follow-up.

The fact that the supervisor is also your CEO does create an additional complication because of the potential conflict of interest and power imbalance. I would avoid putting yourself in the position of independently determining that there is no harassment simply because you have not personally observed it. If the employee provides allegations that are specific, serious, repeated, or potentially meet the applicable workplace-harassment definition, it would be prudent to have someone independent assess the situation rather than having you investigate your own supervisor. Even if a formal investigation is not warranted, maintaining appropriate documentation and following up with the senior leader later can help demonstrate that the concern was taken seriously.

Disclaimer: I am not a lawyer, and this is general workplace/HR guidance rather than legal advice. If there are concerns that the conduct could constitute workplace harassment, psychological harassment, reprisal, discrimination, or another legal issue—or if a formal investigation may be required—it is best for the person responsible for handling the matter to seek advice from qualified legal counsel before proceeding.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: LTD Obligations #108393

Assuming this is an Ontario employee, the fact that they are approaching two years on LTD does not automatically mean the employment contract is frustrated. Frustration may be established where the medical evidence shows there is no reasonable prospect of the employee returning to work in the reasonably foreseeable future, even with accommodation. Before terminating, it is advisable to obtain updated medical information focused on prognosis, functional abilities, possible accommodations, and whether any return to the employee’s own or modified work is reasonably expected.

You should also confirm that you have met your duty to accommodate under the Human Rights Code and considered whether any reasonable accommodation or alternative work is available without undue hardship. The length of the absence alone should not be the deciding factor. You should also check whether the employee is currently entitled to any job-protected leave under Ontario’s ESA and review the LTD policy to ensure that terminating employment will not unintentionally interfere with ongoing disability benefits.

If frustration is properly established, the termination is generally best described as a termination due to frustration of contract, rather than for cause or as a typical without-cause termination. In Ontario, however, where frustration results from illness or injury, the employee is still entitled to ESA termination pay and, if eligible, ESA severance pay. Common-law reasonable notice would generally not be owed if frustration is validly established, but accrued wages, vacation entitlements, and any other statutory amounts must still be paid.

For the ROE, Code D – Illness or Injury is generally used when the employee temporarily stops working because of illness or injury, not when the employer later permanently ends the employment relationship. In a frustration scenario, Code M – Dismissal is commonly the more appropriate choice because the employer is ending the employment relationship, even though there is no misconduct or just cause. The safest approach is to treat the two-year point as a trigger for a final medical and accommodation review, rather than as an automatic termination date.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: JD change/update for AI #108387

There is generally no automatic legal obligation to amend existing job descriptions simply because developers have begun using AI tools. That said, from an HR and future performance-management perspective, I would recommend reviewing the JDs if AI has become a meaningful part of how the development work is expected to be performed. The key distinction is between AI being merely another tool used to perform existing duties versus the employer introducing genuinely new competencies or substantially changing the core role. Ontario recognizes that significant unilateral changes to core duties and responsibilities can, in some circumstances, raise constructive-dismissal issues, so major changes should be handled more carefully.

The bigger issue for future terminations is expectation-setting and training rather than the wording of the JD alone. If, for example, you later conclude that a developer is underperforming because they cannot effectively use AI-assisted coding, prompting, code-review or testing tools, it will be much easier to support that decision if you can show that the competency was clearly communicated, employees were given reasonable access to the technology and training, and they had a reasonable opportunity to demonstrate the required standard. I would therefore document the new expectations through updated JDs, competency profiles, performance goals or development plans where AI proficiency has become material to the role, and provide reasonable working time for employees to learn the tools rather than expecting them to acquire substantially new skills on their own time.

I would also avoid framing a future termination as simply “you don’t have AI skills.” Instead, identify the actual job outcomes involved—for example, ability to use approved development tools efficiently, validate AI-generated code, protect confidential information, identify errors or security vulnerabilities, and meet established quality/productivity standards. That creates a much stronger performance-management record and also avoids tying employment decisions to a particular technology that may change quickly. One additional Ontario point: as of January 1, 2026, certain employers with 25 or more employees have AI-related disclosure obligations for public job postings where AI is used to screen, assess or select applicants, but those provisions do not themselves require employers to update existing employees’ job descriptions merely because employees use AI in their work.

-HRInsider

[Haley O’Halloran]

in reply to: Meetings Policy #108374

Hi Susie! We have a virtual meetings code of conduct and a social functions policy. For your organization or goal, what a meeting is and when it should be held is totally up to you and your HR team! Meetings can vary in time from 15 minute check-ins to 3 hour quarterly analyses. Many companies like to use Microsoft or Google systems to utilize company calendars where you can see when employees are available for meetings, send out invites, and plan events. Use your discretion, discernment, and team to decide what works best for your company’s day-to-day.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Overtime Legislation Rules #108314

In both BC and Alberta, working in an accounting firm or performing accounting duties does not automatically make an employee exempt from overtime requirements. The exemption is tied more closely to professional status. In BC, the exemption applies to members of CPABC and individuals formally enrolled as students under the Chartered Professional Accountants Act. A university student completing an accounting co-op or summer internship would not generally meet that definition simply because they are studying accounting or working in public practice.

Accordingly, a BC co-op or summer student who is still completing their undergraduate degree and has not formally entered the CPA professional pathway should generally be treated as covered by the Employment Standards Act and eligible for statutory overtime. Once the individual is formally enrolled as a CPA student under the applicable legislation, there is a much stronger basis for applying the professional exemption. This aligns closely with the historical approach of distinguishing undergraduate co-op students from employees who have begun their CPA training.

In Alberta, the legislation and guidance refer to certified or chartered accountants as being exempt from overtime requirements, but they do not clearly extend that exemption to ordinary undergraduate accounting students. For that reason, the safer approach is also to treat co-op and summer students as overtime eligible unless there is a clear basis for concluding that their professional registration or CPA candidate status brings them within the exemption.

From a policy perspective, I would recommend against applying a blanket 1:1 overtime arrangement to all accounting students or junior accounting staff. For non-exempt employees, once the applicable statutory overtime threshold is reached, the firm generally cannot replace the statutory overtime entitlement with straight-time pay or 1:1 time off. A more defensible policy would make overtime eligibility dependent on each employee’s professional registration status rather than their job title, department, or the fact that they work in public accounting.

Let me know if you have any other questions!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Averaging System (On- call) #108310

If August 3 is simply an employer-provided paid day off and is not one of Ontario’s nine ESA public holidays, the ESA public-holiday premium-pay/substitute-day rules would generally not apply just because you chose to treat the day like a holiday; an employee who is on call and actually works would normally be paid according to your regular wage/on-call rules, and those hours would count toward overtime in the usual way, including under a valid overtime-averaging arrangement. By contrast, if the day is being provided as a substitute day for an actual ESA public holiday, then the public-holiday rules do apply. Ontario’s ESA specifically ties premium pay and substitute-day entitlements to statutory public holidays, and hours paid at public-holiday premium rates are excluded from the overtime calculation, whereas hours worked at regular pay with a substitute holiday are counted toward overtime.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Terminate after employee does not accept layoff #108298

Based on the circumstances described, proceeding with a without-cause termination, paying the employee their minimum entitlements under Ontario’s Employment Standards Act, 2000 (ESA), and amending the Record of Employment to reflect the termination is a reasonable step. The ESA payment should be provided unconditionally and should include all required termination pay, vacation pay and benefits continuation for the statutory notice period. Any amount offered beyond the ESA minimum in exchange for a release should remain clearly separate from these statutory entitlements.

It is important to recognize, however, that paying the ESA minimum does not necessarily eliminate the employee’s potential constructive or wrongful dismissal claim. Because the original employment agreement apparently did not contain a temporary layoff provision and the employee has expressly reserved their right to pursue constructive dismissal, there may still be potential common-law notice exposure. The earlier offer of four weeks does not limit that exposure unless the employee signs a valid release.

The employer should also ensure that the termination documentation and amended ROE accurately reflect the sequence of events. Care should be taken not to suggest that the employer is admitting the temporary layoff amounted to constructive dismissal or that the termination is occurring because the employee objected to the layoff. The termination should instead be documented as a without-cause decision, with a clear and consistent effective date.

All relevant records should be retained, including the employment agreement, communications regarding the loss of customer work, the temporary layoff notice, the employee’s objection, the settlement offer and deadline extension, payroll calculations, benefits information, the original and amended ROEs, and the final termination communication. The employer should also confirm that there are no other statutory issues that could affect the termination, such as mass termination requirements, protected leaves, accommodation obligations or potential reprisal concerns.

Given that this situation involves a disputed temporary layoff, a potential constructive dismissal claim and possible common-law notice obligations, it requires more individualized legal analysis than can appropriately be provided through a general question-and-answer forum. I recommend that the employer refer this matter to qualified Ontario employment legal counsel for review of the employment agreement, termination date, potential liability and final termination documentation, and direct any further questions on this specific matter to legal counsel.

I hope this helps and wish you well!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Performance Issues #108283

In Ontario, ADHD can fall within the disability protections of the Ontario Human Rights Code, so the employer should treat the disclosure as triggering a duty to inquire into and explore accommodation. That does not mean that legitimate performance expectations must be abandoned. The Ontario Human Rights Commission (OHRC) recognizes that employees with disabilities are expected to meet agreed-upon performance standards once appropriate accommodation is provided. Before escalating performance consequences, however, the employer should make reasonable efforts to determine whether the missed deadlines, attendance issues, or other performance concerns are disability-related and whether accommodation could enable the employee to meet the essential requirements of the position.

At this stage, I would recommend continuing the accommodation process and performance-management process in parallel, rather than waiting indefinitely for medical documentation. Meet with the employee and explain that there are specific, ongoing performance concerns—using objective examples such as missed reports, deadlines, and deliverables—and that the goal is to help them succeed. Because ADHD has been disclosed, ask whether any of these difficulties are connected to disability-related limitations and what workplace supports may help. You can follow up on the medical documentation, but frame the request around functional limitations, restrictions, ability to perform essential duties, and accommodation needs, rather than asking the physician for detailed diagnostic information. The OHRC also says employers should actively investigate possible solutions and, where appropriate, consider interim accommodation based on the information available rather than simply waiting for a medical assessment.

A collaborative PIP can therefore be appropriate, provided it is clearly about the employee’s job requirements rather than their ADHD. Identify the essential deliverables, reasonable deadlines and measurable standards; ask the employee what barriers are contributing to the gaps; and jointly consider supports such as clearer written priorities, intermediate milestones, scheduled check-ins, deadline reminders, workload organization, or other measures appropriate to the employee’s actual limitations. Document both sides of the process: the performance concerns and expectations, as well as the employer’s accommodation inquiries, proposed measures, employee responses, and follow-ups. The employee also has responsibilities in this process, including providing reasonably necessary information about restrictions or limitations, participating in discussions and cooperating with efforts to identify accommodation. If necessary information is repeatedly requested and the employee does not cooperate, that can eventually affect the extent of the employer’s accommodation obligation—but I would document several clear attempts before reaching that conclusion.

Finally, keep medical/accommodation information separate from ordinary performance documentation wherever practical and tightly restrict access. A manager generally needs to know what accommodation is being provided and what expectations apply, not the employee’s medical details. The OHRC specifically recommends that medical information be kept confidential and, where possible, separately from the personnel file, with HR communicating functional restrictions to supervisors rather than diagnostic details. Given the intersection of disability accommodation and potential discipline here, Ontario employment/human-rights counsel should review the PIP and accommodation correspondence before the organization moves toward significant discipline or termination.

I hope this helps.
-HRInsider Staff

[Haley O’Halloran]

in reply to: Medical Documentation to Support LOA #108282

You are correct that there is a balance between an employer’s duty to accommodate under human rights legislation and an employee’s corresponding duty to participate in the accommodation process. Where an employee is absent for medical reasons, the employer is generally entitled to request reasonable information necessary to understand whether the absence is medically supported, the employee’s functional limitations or restrictions, and, where possible, the anticipated duration of the absence or a timeframe for reassessment. The employee would not ordinarily be required to disclose a specific diagnosis unless there are exceptional circumstances that make that information reasonably necessary.

Given that more than two months have passed and several reasonable deadlines have apparently been missed, the next step would typically be to provide the employee with a clear written request outlining exactly what information is still required, a final reasonable deadline for providing it, and the consequences if the information is not received. The communication should acknowledge that there may be legitimate reasons for delays in obtaining medical documentation and invite the employee to advise you promptly if they are experiencing difficulty meeting the deadline. It is also important to document the requests, deadlines, responses, and any explanations provided by the employee, as this demonstrates the employer’s continued efforts to obtain the information necessary to assess and support the leave.

If the employee continues to communicate but does not provide the required information or a reasonable explanation for being unable to obtain it, you may eventually be in a position to advise that you cannot continue to substantiate or administer the absence as a medically supported leave without appropriate documentation. However, I would exercise caution before moving directly to discipline or termination, particularly if a disability may be involved. The applicable employment standards and human rights requirements should be reviewed for your province, and given the length of the absence and repeated non-compliance, obtaining legal advice before taking a step that could affect the employee’s employment would be prudent. The absence of a formal medical-leave policy does not necessarily prevent you from requesting reasonable supporting information, but implementing a consistent written policy going forward would help establish expectations and ensure similar situations are handled consistently.

-HRInsider Staff

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