[Haley O’Halloran]

in reply to: Termination #95368

There is no minimum age at which common law notice applies — it applies to any terminated employee unless their employment contract limits notice to statutory minimums (and the contract is enforceable).

Age affects the length of the notice period, not the eligibility for it.

Younger employees (e.g., under 30) might receive shorter notice, even if they have significant service.

Senior employees (especially older, long-service employees) are seen as having greater difficulty finding re-employment and are thus awarded longer notice periods.

Here’s a rough idea (though actual awards depend heavily on individual circumstances):

-Short-service, young employees: 2–4 months.

-Mid-age, mid-service employees: 4–8 months.

-Older, long-service employees (50s/60s, 20+ years of service): 12–24 months or more.

Courts in Canada generally cap common law notice at around 24 months, although extraordinary cases (usually involving very senior, long-term employees) may exceed this. Therefore, common law notice is triggered upon termination without cause, regardless of age. Age impacts how much notice is owed — older employees typically get more notice because re-employment prospects are harder.

-HRInsider Staff

[Haley O’Halloran]

in reply to: How many HR representatives should be employed for 160 employees? #95366

A widely accepted industry benchmark for HR staffing is:

1 full-time HR professional per 100 employees.

This rule of thumb is used across many industries (especially in North America) and is supported by organizations like SHRM (Society for Human Resource Management).

For 160 employees, you would typically expect:

1.5 to 2 HR staff — meaning either:

2 full-time HR representatives, or

1 full-time HR generalist and 1 part-time or specialized HR support (e.g., payroll, benefits coordinator).

You can read more about the correct HR-to-Employee ratio on HRInsider here. Please use our search function for any more queries you may have! We post new content every day.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Accommodating a return to work from maternity leave. #95365

In most jurisdictions, an employer’s ability to ask for personal information — such as proof of a child’s daycare waitlist — is strictly limited by privacy laws and human rights legislation. Information requests from employers must be:

-Reasonable,

-Necessary for a legitimate business purpose, and

-Proportional to the need being addressed.

In Canada (especially British Columbia, where privacy law is strict): The Personal Information Protection Act (PIPA) allows employees the right to deny providing such information.

When It Might Be Allowed
A company might be able to ask for some proof only if:

-It is tied to an official workplace accommodation request (e.g., a flexible work schedule).

-There is a direct and demonstrable impact on work obligations (e.g., requesting extended leave or other specific benefits related to childcare).

-The information requested is minimally invasive — for instance, a simple confirmation letter from a daycare provider without revealing unnecessary details.

However, even in these cases, the employer would typically need to justify:

-Why they need that specific proof,

-Why less intrusive proof (such as an employee’s own written statement) wouldn’t be sufficient.

Important: The employer usually cannot demand the names or details of multiple daycares unless absolutely necessary. Generally, verifying that the employee is seeking daycare arrangements would be sufficient.

Risks for the Employer
If an employer requests more information than necessary, they could be:

-In violation of privacy laws (which could lead to penalties or complaints to a Privacy Commissioner).

-Subject to a human rights complaint if the request appears discriminatory or overly invasive.

-Potentially liable for constructive dismissal claims if the employee resigns due to privacy breaches.

A more appropriate request would be:

“Could you please provide confirmation that you are actively seeking childcare placement, such as a generic letter or email from a daycare provider?”

-HRInsider Staff

[Haley O’Halloran]

in reply to: When can a company terminate a worker who has returned from a leave. #95339

Terminating an employee who has recently returned from maternity leave must be handled with extreme caution, as both employment standards legislation and human rights law provide strong protections against dismissal in this context.

Here’s what you need to know:

1. Protection from Termination: Employment Standards

A worker cannot be terminated or laid off for taking or planning to take maternity or parental leave.

Protection extends to after the leave ends, meaning you cannot dismiss the employee because of the leave or any related issues (e.g., needing accommodations for breastfeeding or child care).

Even 6 months post-return, the law presumes retaliation if the termination is closely tied in time to the leave—unless you can clearly show otherwise.

2. When Termination May Be Permitted
You can terminate a returning employee only if:

The reason is completely unrelated to the maternity leave, and

You have strong, well-documented, non-discriminatory reasons, such as:

Performance issues, with documented warnings and improvement plans.

Reorganization or redundancy, affecting multiple employees, not just the returning mother.

Misconduct (e.g., breach of policy), clearly documented and consistently applied.

Key Rule: The burden is on the employer to prove the termination was not discriminatory or retaliatory.

3. Risks of Wrongful or Discriminatory Dismissal
If an employer terminates a returning mother without clear justification:

The worker can file a human rights complaint for discrimination based on sex and family status.

She may also pursue a wrongful dismissal claim, seeking damages for lost income and mental distress.

In unionized settings, a grievance may be filed and could lead to reinstatement.

4. Best Practices Before Considering Termination
If you are contemplating termination:

Consult legal counsel before taking action.

Ensure the employee’s maternity leave or accommodation needs played no role in the decision.

Gather and review documentation of job performance or conduct.

Be consistent: Has this reason been applied equally to others in similar situations?

If redundancy is the reason, demonstrate that other roles were also eliminated.

5. Alternatives to Termination
If there are concerns about performance or fit:

Use a performance improvement plan (PIP) before considering dismissal.

Consider reassignment, if available.

Offer a mutual separation package, if appropriate.

I am not a lawyer, and this is a matter that could result in a wrongful dismissal claim, so of everything written here, I hope your biggest takeaway is to speak with a legal professional who can guide you through this complicated matter. Best of luck!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Accommodating a return to work from maternity leave. #95335

Here’s a detailed overview of what your company needs to consider under Canadian employment and human rights laws (I have gone for Federal compliance as you did not specify your jurisdiction) when accommodating an employee returning from maternity leave who is requesting to work from home due to child care needs:

1. Duty to Accommodate under Human Rights Law
Employers have a duty to accommodate employees based on protected grounds—including family status—to the point of undue hardship. This includes accommodating parental obligations such as child care.

Key Considerations:
The employee’s request to work from home to care for her infant is a family status accommodation request.

The employee has made reasonable efforts to find child care (e.g., registering with daycares), which shows she’s not avoiding returning to the office.

You must engage in an individualized, good-faith assessment of whether and how the accommodation can be provided.

2. Assessing the Work-from-Home Request
The company should assess:

Whether the employee’s job duties can be effectively performed remotely.

Whether working from home will cause undue hardship to the organization—this could include significant operational challenges, costs, or safety risks.

If there’s no undue hardship, then accommodation should be granted—possibly with clear timelines and reassessment periods (e.g., after 4 months).

Tip: Document all steps of the interactive accommodation process.

3. Privacy for Breastfeeding / Pumping Milk
Employers are legally required to support breastfeeding in the workplace. This includes:

Providing a private, clean space (not a washroom) for pumping.

Ensuring access to a refrigerator for milk storage.

Providing reasonable breaks for pumping, without penalty.

Your small boardroom sounds like a viable option if it can be made private and scheduled for regular access.

4. What The Company Cannot Do
You cannot terminate or penalize the employee for requesting accommodation due to child care or breastfeeding needs.

You cannot refuse the accommodation request without a legitimate undue hardship analysis.

You cannot force the employee to return if she has not been reasonably accommodated under family status or medical needs.

5. Suggested Steps for the Company
Engage in a dialogue with the employee about her needs and your operational capacity.

Assess remote work feasibility, and if possible, grant the work-from-home arrangement for a defined period (e.g., 4 months), with periodic check-ins.

Set clear expectations for remote performance and communication.

Designate and prepare a private space for breastfeeding/pumping upon her return to the office.

Document all discussions and steps taken in the accommodation process.

6. Additional Supports
Consider an Employee Assistance Program (EAP) if available, to support work-life transitions.

If feasible, offer flex hours or staggered return-to-work schedules to help with the transition.

Check out these resources from HRInsider: Return To Work Policy, Work From Home Policy, Maternity Leave Policy, and our recent Ask The Expert submission about Returning Back To Work After Maternity Leave.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination #95327

Hello! Given that your situation is occurring in Ontario, here’s a detailed breakdown of how the law generally treats such cases and the key considerations you should keep in mind regarding potential wrongful dismissal claims in the province:

Probation and Termination in Ontario
Probation period legalities:

Under Ontario’s Employment Standards Act, 2000 (ESA), employees can be terminated without notice or pay in lieu during the first three months of employment (assuming no contract provides otherwise).

After the three-month mark, even probationary employees are entitled to at least one week’s notice or pay in lieu, unless termination is for just cause.

“Probation” doesn’t mean automatic termination rights — employers must still act in good faith, and the employee must be given a reasonable opportunity to meet expectations, especially beyond the 3-month mark.

Performance Concerns and Just Cause
Just cause termination — the standard required to terminate without notice — is very high in Ontario. It typically requires:

Serious misconduct (e.g. dishonesty, insubordination, gross incompetence),

Documented progressive discipline (i.e., warnings, opportunities to improve),

Clear evidence of failure to meet expectations despite support.

From your description: The employee’s issues relate to consistent errors and lack of accountability, but unless you’ve documented these with warnings, coaching, or performance improvement plans (PIP), just cause is unlikely to be upheld. The fact that they are job searching is not cause for dismissal, unless it’s accompanied by misconduct (e.g., job searching during work hours or disclosing confidential information).

So, unless you have robust evidence of misconduct and have followed due process, it is safer to terminate with notice or pay in lieu, not for cause.

Informal Remote Work Agreement
You mentioned that the original manager informally stated that remote work could be possible post-probation, and the employee began working remotely, seemingly without formal authorization.

Key points here:

Even if the agreement was informal, continued acceptance of remote work (i.e., no objections from the employer) may be seen as implicit approval.

However, since no written policy or offer letter guaranteed remote work, and performance concerns have surfaced, it is unlikely to form a contractual entitlement.

Thus, withdrawal of remote privileges is unlikely to be considered a breach — especially if the role can be reasonably expected to be onsite.

Salary Increase Expectations
Promises of salary increases contingent on performance are not guaranteed entitlements.

If performance is objectively lacking and no formal contract promises a raise, withholding the raise is lawful.

Ensure communications about this are clear and supported with performance evaluations or manager notes.

Risk of a wrongful dismissal claim? I would say there is high risk if you claim just cause termination because your lack of documentation weakens your defense, and if you claim the termination was due to the employee working remotely, there is a moderate risk whether the court finds your informal agreement binding. However, I am not a lawyer and these are very legal questions.

Here is what you need to do next:
Document the employee’s performance issues and any conversations about expectations or warnings.

Consult legal counsel before proceeding, especially to determine the length of notice or severance required under ESA or common law.

Prepare a termination letter that:

Avoids mention of “just cause” unless legally justified.

Clearly outlines final pay, any severance, and return of company property.

Be respectful and consistent in all communications to minimize risk of reputational harm or claims.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Employment Disqualification Question #95309

In Ontario, Canada, the rights of applicants regarding background checks—especially when those checks are performed by a third party or used to make an adverse employment decision—are governed by privacy and human rights legislation, and in some contexts, consumer reporting laws.

Here’s what you should know:

Obligation to Disclose: Consumer Reporting Agencies (if involved)
If the background check was performed by a consumer reporting agency (as defined under the Ontario Consumer Reporting Act), and the employer/client relied on that report to make a decision (like rejecting a candidate), certain legal obligations apply:

Written Notice of Adverse Action: If a decision is made based on a consumer report, the applicant has a right to be informed that a consumer report was used.

Right to Access the Report: The applicant is entitled to request and receive a copy of the report from the consumer reporting agency that prepared it.

So, if your client used a third-party background screening company, and that company qualifies as a consumer reporting agency, then the applicant must be informed and can request the report.

Employer-Led Verifications (Non-Consumer Report)
If the employer conducted the verification themselves (e.g., called schools or past employers directly), and no consumer reporting agency was involved:

There is no clear legal requirement under Ontario law for the employer to disclose the details of the verification results.

However, withholding reasons entirely can raise transparency and fairness concerns, especially if the applicant disputes the result.

Human Rights Considerations
If the applicant believes they were denied employment due to discriminatory reasons (e.g., race, age, disability, etc.), they may file a complaint with the Ontario Human Rights Commission.

A lack of transparency could make it harder for an employer to defend against such a claim.

Privacy Law Implications
While Ontario does not have a general private-sector privacy law (like PIPEDA in federal jurisdictions), PIPEDA may still apply if your staffing company operates federally or deals with clients across provinces. Under PIPEDA:

Individuals have the right to access personal information collected about them.

You (as the staffing agency) may have an obligation to provide access to what was shared or learned—unless an exception applies (e.g., confidentiality or legal restrictions).

Recommended Actions
Clarify with your client whether a consumer reporting agency was used. If so, your applicant may be entitled to the report.

Advocate for transparency: Ask your client if they can at least confirm whether the verification failure was due to education, employment, or another factor—without disclosing confidential sources.

Document communications with the client and the applicant in case the issue escalates.

Consider including clear language in your staffing contracts that outlines how background verifications will be handled and what disclosures will be made to applicants.

Here is our background checking policy, which you can implement going forward to avoid any confusion and non-compliance in the future.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination #95235

Hi there!

Firstly, as an employee and someone who writes about this everchanging landscape every day, I truly appreciate this question. You are leading with empathy first and that is a great step during this extremely difficult time. Navigating terminations due to economic circumstances is incredibly tough – both emotionally and organizationally. Your intent to approach this with empathy, transparency, and compliance is absolutely the right starting point. Here are best practices broken into three key stages:

1. Communicating with Impacted Employees
Before the Conversation:
Plan thoroughly. Review employment contracts, severance obligations, and employment standards (e.g., BC Employment Standards Act).
Ensure leadership alignment. All managers should deliver consistent messaging.
Consider timing and setting. Choose a private, respectful setting and avoid Fridays (as it limits access to support).

During the Conversation:
Be direct but compassionate. Clearly explain the reason (economic downturn, restructuring) without overexplaining or blaming.
Acknowledge emotions. Allow space for reaction, and be prepared for shock, sadness, or anger.

Share next steps clearly. Include:
Final working day
Severance/notice details
Benefits continuation, if any
Return of equipment
Outplacement or referral support

After the Conversation:
Follow up in writing. Provide a termination letter outlining all discussed items.
Assign a point of contact. Someone who can handle logistical questions post-meeting (e.g., HR or senior admin).

2. Supporting Transition for Departing Employees
Provide emotional and career support:
Offer outplacement services (if budget allows) or connect them with community employment programs.
Share job leads or write reference letters proactively.
Provide access to counselling/EFAP services.

Be flexible where possible:
Allow employees to say goodbye or leave quietly, depending on their preference.
Consider extending benefits or providing lump sum payments, if feasible.

Maintain dignity and respect:
Avoid publicly announcing individual names unless they consent.
Frame communication positively (e.g., “We are grateful for their contributions”).

3. Maintaining Trust and Morale Among Remaining Staff
Hold a team-wide meeting soon after.
Be transparent about the reasons behind the decision.
Reaffirm the organization’s mission and commitment to staff.
Share what the future looks like and how the team will move forward.
Acknowledge the emotional impact.
Recognize the loss of colleagues and how it might affect morale.
Invite people to talk openly or access EFAP/counselling services.

Empower remaining staff:
Clarify roles and responsibilities—avoid overburdening them.
Provide support, flexibility, and space to adjust to the new normal.
Check in frequently.
Managers should schedule one-on-one conversations to gauge how team members are feeling.
Be visible and approachable.

Here are some HRInsider resources I would recommend you look through to navigate both termination legality/maintaining compliance and the current economic state we are in as employers and employees:
Ensuring the Psychological Health and Safety of your Workforce during US Tariffs
Workplace Management Through a Tariff Downturn
Navigating Workplace Planning through a US-Canada Trade War
How Tariffs will Affect Workforces and HR Managers
Avoiding Legal Pitfalls with Proper Workplace Communication
and here is a webinar from a litigation lawyer on how to properly and compliantly conduct terminations in the workplace.

Best of luck during this difficult time – this is easy on nobody and I hope these resources can at least help guide you in the right direction to make this transition as smooth as possible.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Can employer terminate operator on disability while business depletes #95141

These are nuanced employment law questions, and while I can offer a general overview, your organization should seek legal counsel for advice specific to your situation and jurisdiction.

That said, here are general principles relevant to both of your questions:

1. Employee on LTD — Can the Employer Terminate with a Package Due to Layoffs?
General rule:
Yes, an employer can terminate an employee on long-term disability (LTD) if the termination is unrelated to the disability and is instead part of a bona fide layoff or restructuring (e.g., loss of major business, eliminating positions by seniority).

Conditions:

The termination must be non-discriminatory (i.e., not because of the disability).

The LTD status doesn’t grant immunity from layoff or restructuring if the decision is not based on the disability.

A reasonable severance/termination package must be provided, aligned with employment standards, contract terms, and common law (where applicable).

It’s recommended to document the reason for termination (e.g., seniority-based layoff) clearly and neutrally.

Caution:

If the person is permanently disabled and not expected to return, the employment relationship may be considered frustrated, which can also be grounds for termination. In that case, reasonable notice or severance is still typically owed, though possibly reduced.

Terminating someone while on LTD always carries a higher legal risk, especially under human rights law, so it’s best to consult an employment lawyer before proceeding.

2. Inactive Employee Wants to Return with Medical Clearance for Modified Work — Must Employer Accommodate?
Yes, generally — if an employee presents documentation that they are medically cleared to return to work (even with modified duties), the employer has a duty to accommodate up to the point of undue hardship (under human rights law).

However:

If the organization is undergoing legitimate layoffs or restructuring, and there is no available work (or no modified work available), the duty to accommodate may not require the creation of new roles or bumping other employees.

If accommodation would cause undue hardship — financially, operationally, or with safety risks — the employer may not be obligated to proceed.

If layoffs are occurring by seniority, and the returning employee is not senior enough to displace others or be retained, they may still be subject to layoff (though again, not due to the disability).

Best Practices:
Document all decisions clearly and neutrally.

Engage in the interactive accommodation process with the returning employee (i.e., discuss options, ask for medical details within reason, explore modified duties).

If no suitable work exists, explain and document why accommodation isn’t possible at this time.

Ensure the layoff or termination is consistent with how other employees in similar roles/seniority are being treated.

Seek legal review before terminating or refusing to accommodate a returning employee, especially during downsizing — the legal risks are higher.

[Haley O’Halloran]

in reply to: Can an employer search employee bags/purses a the end of a shift #95138

In Canada (and specifically in British Columbia), employers do not have an automatic right to search an employee’s bag or purse after a shift. Such searches raise significant privacy and human rights concerns, and employers must carefully balance their business interests with an employee’s reasonable expectation of privacy. Basically, it’s legal to ask, but it’s also legal for an employee to deny your request to search their bag.

Generally speaking, workplace searches of employee lockers, bags and other searches would be subject to the same principles that apply to drug testing under the Supreme Court Irving Pulp ruling.

First, random searches are highly problematic and not allowed unless: 1. the workplace and workers searched are safety-sensitive; and 2. you can demonstrate that there’s an actual–not just theoretical–drug problem causing safety issues at the site, e.g., via records showing a large number of accidents and injuries caused by drug impaired workers at the site
For-cause searches would be easier to justify. You’d still need a safety-sensitive workplace. Ideally, you’d limit searches to safety-sensitive personnel.
A clear, for-cause bag searching policy should include:

Notifies employees of your right to conduct such searches;
States that employees have limited privacy expectations with regard to those possessions at the workplace;
Explains the reasons for the policy
Bottom line: Avoid random searches unless you’re sure you satisfy the above Irving conditions–recognizing that almost no employer ever does, at least based on the post-Irving cases. If you don’t believe me, just ask Suncor. They thought they had a solid case for random testing of oil sands workers at sites with over 1,500 drug-related safety incidents but the Alberta court still shot the policy down.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Health and Safety Representative #95056

In British Columbia, the requirements for health and safety representatives or committees are determined by the number of workers at each workplace location:

Workplaces with 9 or fewer workers: No formal requirement for a health and safety representative or committee.​

Workplaces with 10 to 19 workers: A worker health and safety representative is required.​

Workplaces with 20 or more workers: A joint health and safety committee must be established.​

Given that your organization operates two locations—one with 12 staff and another with 30 staff—you are required to have a worker health and safety representative at the 12-staff location and a joint health and safety committee at the 30-staff location. ​

Selection of Representatives and Committee Members:

Worker Health and Safety Representative: For non-unionized workplaces, the representative should be selected by the workers through a secret ballot. If workers do not select a representative, the employer must seek out and assign one. ​

Joint Health and Safety Committee: Members should be selected according to procedures established by the union (if applicable) or, in non-unionized settings, by the workers they represent, typically through a secret ballot. ​

Compensation and Training:
Compensation: Employers are required to compensate worker health and safety representatives and committee members at their regular rate of pay for time spent performing their duties, including attending meetings and carrying out related functions.
​
Occupational Health and Safety Law
Training: Worker health and safety representatives must receive four hours of training and instruction, while joint health and safety committee members are required to receive eight hours of training. Additionally, all representatives and committee members are entitled to eight hours of annual education leave to attend occupational health and safety training. ​

There is no requirement to pay additional salary beyond the regular rate for these roles. The compensation pertains to the time spent fulfilling health and safety duties during working hours.​

For comprehensive information and resources, you can refer to WorkSafeBC’s guidelines on joint health and safety committees and worker health and safety representatives. I would always highly recommend consulting an HR professional or legal counsel to guide you through a fully compliant healthy and safety process to ensure there are no roadblocks.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation/sick days/personal days #95046

I’ll do a quick run-down of the various requirements in each of those jurisdictions for you:

Ontario:
Under Ontario’s Employment Standards Act, 2000 (ESA), employees are entitled to several types of unpaid, job-protected leaves, including:​
Sick Leave: Up to 3 days per calendar year for personal illness, injury, or medical emergency. ​
Family Responsibility Leave: Up to 3 days per calendar year for illness, injury, medical emergency, or urgent matters concerning certain family members. ​

These leaves are distinct from vacation days. Since your company offers 5 sick days, which exceeds the ESA minimum, and does not have a policy on personal days, you can require the employee to use a vacation day for personal reasons not covered under the ESA. However, it’s advisable to ensure consistency and fairness in applying such decisions.​

British Columbia:
The BC Employment Standards Act provides for various job-protected leaves, including:​
Illness or Injury Leave: After 90 consecutive days of employment, employees are entitled to up to 5 paid days and 3 unpaid days per year for personal illness or injury. ​
Family Responsibility Leave: Up to 5 unpaid days per year to attend to the care, health, or education of a child or immediate family member. ​
There isn’t a specific provision for personal days unrelated to illness or family responsibilities. Therefore, in BC, you can require an employee to use a vacation day for personal matters not covered by these leaves.​

Quebec:
Quebec’s Act Respecting Labour Standards provides for:​
Absence for Family or Parental Reasons: Employees may be entitled to leaves for various family or parental reasons, but there isn’t a specific provision for personal days unrelated to these reasons. ​
In the absence of a specific personal leave provision, you can require an employee in Quebec to use a vacation day for personal reasons not covered by the Act.

In short, I would stick with my original advice – you’re going about this the right way but ensure you have measures in order in case you need to create a policy to address increased personal day requests! It sounds like you’re going about this the compliant way and should come across no issues.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation/sick days/personal days #95044

Yes, since your company does not have a specific policy for personal days, you can require the employee to use a vacation day instead. However, before making a decision, consider the following:

Check Employment Contracts & Jurisdictional Laws – Ensure that there are no legal requirements in your jurisdiction that entitle employees to personal days or leave flexibility.

Consistency & Fairness – If other employees have been allowed to take personal days without using vacation time, denying this request may seem unfair or inconsistent.

Employee Morale & Flexibility – While you are within your rights to ask the employee to use a vacation day, consider whether offering flexibility or implementing a new option for employees to take personal days might improve employee satisfaction and workplace culture.

Clarifying a Policy Moving Forward – If personal day requests are becoming common, it may be helpful to establish a formal policy to avoid confusion in the future. If you need any help with that policy, we have a handy AI Assistant on the HRInsider site that will create one for you and allow you to download it as a Word doc or PDF format.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Unlimited PTO Policy & Maternity Leave #94991

Hi there! Let’s go through these questions one by one:

1. Is the employee entitled to be paid for statutory holidays that occur while on leave?
No. Under Ontario’s Employment Standards Act (ESA), employees on an unpaid statutory leave of absence (such as maternity leave) are not entitled to statutory holiday pay. Since the employee is on maternity leave and not actively working, they do not meet the requirement of having earned wages in the four workweeks before the holiday, which is typically required for statutory holiday pay eligibility.

2. With an unlimited PTO policy, does the employee technically accrue sick time while on leave?
This depends on the company’s internal policies and whether “unlimited PTO” includes accrual tracking for sick time.
In Ontario, employers are required to provide a minimum of three unpaid sick days per year under the ESA (if the company does not already provide a more generous policy).
If the company does not track sick time accrual under its unlimited PTO policy, there may be no technical “accrual” of sick days during maternity leave.
If the company does track or imply accrual, it would need to clarify whether employees continue accruing PTO (including sick time) during leaves.

3. With an unlimited PTO policy, does the employee technically accrue vacation time while on leave?
Yes, but only in terms of vacation pay.
Under Ontario’s ESA, vacation time does not accrue during statutory leaves, but vacation pay does accrue if it is based on a percentage of earnings. Since the employee is on maternity leave and receiving only 13 weeks of top-up (but otherwise unpaid), their vacation pay accrual would be limited to the earnings during those 13 weeks.
If the company’s unlimited PTO policy does not use a vacation accrual system, then there may not be any formal accrual at all, and instead, vacation is granted at the company’s discretion once the employee returns.

Let me know if you have any more questions!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Terminations/Voluntary #94923

If an employee continues to receive payments (e.g., severance or termination pay) beyond their last working day, the interruption of earnings — and thus the requirement to issue an ROE — occurs only after these payments conclude. This means that ADP’s policy of not producing an ROE until the employee stops receiving payments aligns with Service Canada’s guidelines.

To expedite the issuance of an ROE from your payroll provider, consider the following steps:

Review Internal Policies: Ensure that your organization’s policies align with Service Canada’s requirements for ROE issuance, particularly concerning the timing of final payments and the definition of an interruption of earnings.

Communicate with ADP: Reach out to your ADP account representative to discuss your specific needs and any potential adjustments to your payroll processing that could facilitate timely ROE issuance.

Utilize ROE Web: If immediate issuance is necessary and feasible, consider using Service Canada’s ROE Web platform to manually issue ROEs. This secure online service allows employers to create and submit ROEs directly to Service Canada.
CANADA.CA

By proactively managing the timing of final payments and maintaining open communication with your payroll provider, you can help ensure compliance with ROE issuance requirements and support your employees’ access to Employment Insurance benefits.

[Author]

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