[Haley O’Halloran]

in reply to: Medical Leave/Recall #95802

Since you’re federally regulated in Canada, the Canada Labour Code (CLC) governs your employment practices, including recall rights and medical leaves. Here’s a breakdown of your options and obligations:

1. Medical Inability to Return to Work
If the recalled employee has provided valid medical documentation showing they are temporarily unable to return to work, you cannot terminate their employment solely on that basis. Under the CLC:

Employees have protection from dismissal due to illness or injury, particularly if they are on a medically certified leave.

The law requires employers to accommodate medical leaves, unless doing so would cause undue hardship.

This means the employee remains employed but on a medical leave status.

2. Recall Rights During Medical Leave
Recall rights are not automatically forfeited just because the employee is unable to return right now:

If the employee was recalled but is medically unable to report, you should document the refusal as medical leave rather than abandonment or refusal of work.

Their place on the recall list may remain “frozen” until they are medically cleared to return.

This approach avoids discrimination under the Canadian Human Rights Act, which protects against termination due to disability.

3. Can You Move to the Next Person on the Recall List?
Yes. Since the recalled employee is unavailable:

You may move to the next qualified person on the recall list to fill the position in the interim.

The original employee’s recall rights remain intact, assuming their medical condition is temporary and recovery is expected.

4. When Can Termination Be Considered?
Termination may only be lawful if:

The medical condition results in a permanent inability to work, and

You’ve engaged in a thorough accommodation process, and

You can demonstrate undue hardship if accommodation is not feasible.

You must have clear, ongoing documentation and communication with the employee. Terminating recall rights prematurely would likely be seen as discriminatory and could expose you to legal risk.

Recommended Steps
-Acknowledge the medical documentation and maintain the employee’s status as “on leave.”
-Communicate clearly in writing that their recall is deferred due to medical reasons.
-Move to the next person on the recall list for operational needs.
-Continue to monitor the employee’s medical status and request periodic updates.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination in Probation #95741

You’re on the right track in your current approach, but it’s wise to ensure that your termination practices during probation are aligned with employment standards and minimize legal risk. Here’s a detailed breakdown tailored to the skilled trades context in Canada:

1. Probationary Period: Legal Framework
In most provinces, a probationary period typically lasts up to 3 months (90 days) from the start of employment. During this time:

The employee may be terminated without notice or pay in lieu, provided the employer complies with minimum standards legislation.

If the probation period is extended (e.g., 6 months), employment standards still require notice or pay in lieu after the statutory probation (usually 3 months).

Statutory Law
Applicable laws depend on your province, but here are common elements across most jurisdictions (like BC, Ontario, Alberta):

No notice is required if termination occurs within 3 months and there is no just cause.

Beyond 3 months, minimum notice (or pay in lieu) is required, even during an extended “probationary” period.

2. Absenteeism During Probation: Termination Risk
Although you can terminate without notice during statutory probation, you still must not violate human rights laws. That means you:

Cannot terminate due to a protected ground, such as disability (which could be flagged if absenteeism is due to illness).

Should document attendance issues clearly and neutrally to show the decision was business-related and not discriminatory.

If absenteeism is not medically or otherwise legally protected, then:

-A written attendance reminder followed by termination if there’s no improvement is a sound approach.

-Avoid citing “failure to complete orientation” if absenteeism is the core issue—stick with clear language tied to attendance expectations.

3. Progressive Discipline vs. Immediate Termination

Progressive discipline is a best practice for long-term employees but not legally required during the probation period, unless:

Your employment contract or company policy requires it (which would create enforceable expectations).

The behaviour does not justify immediate termination.

That said, having even minimal documentation (e.g., one written warning) can help defend against wrongful or discriminatory termination claims.

4. Reducing Litigation Risk

To mitigate risk:

-Use clear language in contracts that defines the probation period and states that employment may be terminated without notice during this period.

-Ensure attendance policies are included in onboarding materials, and employees sign off.

-Maintain non-discriminatory, well-documented reasons for termination decisions.

-Consult with employment counsel before termination if there is even a hint that absenteeism could be tied to disability or protected grounds.

5. Industry-Specific Considerations
In the skilled trades:

-Training and safety are valid business justifications for strict attendance expectations.

-Absenteeism can reasonably be considered a failure to meet conditions of employment—especially if proper training is missed.

-Your PMs’ desire to move quickly to termination is understandable, but you should ensure the reasons are consistent and documented, even during probation.

Recommended Best Practices
-Reinforce attendance expectations clearly in orientation and in job postings.

-Issue a written reminder or informal warning as soon as absenteeism occurs—even if still within the first few days.

-Track absences and reasons given.

-Terminate during statutory probation if there’s no protected ground involved and improvement does not occur.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Seeking HR Mentor #95590

Hi Nadine, I highly recommend checking out our HRInsider webinars to brush up on your HR knowledge, but we do not provide HR course training or official certificates. LinkedIn learning provides great refresher courses!

Hope this helps.
-HRInsider Staff

[Haley O’Halloran]

in reply to: On-Call at Home – Pay Policy #95528

Hi Aleesha!

You’re right to look closely at how BC’s Employment Standards Act (ESA) minimum daily pay rules apply in complex scheduling scenarios like on-call work following a full shift. Here’s a breakdown of how this may apply in your example:

Under Section 34 of the BC Employment Standards Regulation, the “minimum daily pay” or “reporting pay” rule states:

If an employee reports to work and works less than their scheduled shift, they must be paid for at least two hours, or four hours if scheduled for more than eight hours, unless:

The work is suspended due to circumstances beyond the employer’s control.

On-call work typically only counts toward this reporting pay minimum if the employee is called in and performs work (i.e., not simply being on standby).

Your Scenario: Dispatcher Working + On-Call
You described a dispatcher who:

-Works an 8-hour regular shift.

-Then goes on-call for another 8 hours (4:00 p.m. to 12:00 a.m.).

-Gets called in during the on-call window.

The ESA doesn’t explicitly distinguish how minimum pay applies to “called in” work after a shift ends, so interpretation often depends on case-by-case factors. But here are the main considerations:

Pay Obligation When Called In
Option 1: Pay 2 Hours Minimum Per Call-In
If the call-in is brief (e.g., 30 minutes), and the employee is not scheduled for a second 8-hour shift, but just “on-call”:

You likely owe 2 hours’ minimum pay per call-in (Section 34(1) of the Regulation).

Option 2: Pay 4 Hours If Treated as a Scheduled Shift
If the employee was pre-scheduled to be on-call for 8 hours, and you treat it as a defined second shift, then:

The call-in could be considered part of a scheduled 8-hour shift, so 4 hours minimum may apply if they work less than 4 hours.

However, this hinges on whether the on-call period is considered “scheduled work” under the ESA.

In practice:

The on-call period itself does not count as time worked unless the employee is called in.

Only the hours actually worked (due to a call-in) trigger the reporting pay rule.

Practical Approach
If the dispatcher receives one call during the on-call window, and works less than 2 hours: pay 2 hours minimum.

If they receive multiple call-ins, or work several short shifts during the on-call block:

ESA is silent on cumulative call-ins, but many employers pay 2 hours per call-in, unless calls are continuous (i.e., the work stretches longer).

Recommendations
Clarify internal policy on on-call scheduling—are these blocks considered scheduled work?

Ensure your practice is internally consistent and clearly documented in case of audit or complaint.

Since ESA enforcement can vary by case, you’re absolutely right: getting legal review on your policies is a smart step.

Best of luck with getting started, I’m here if you have any more questions!

-HRInsider Staff

[Haley O’Halloran]

in reply to: On-Call at Home – Pay Policy #95525

Of course! This is, as mentioned, a detailed topic that requires some legal attention, so while I recommend consulting specific questions like these with a lawyer, I can still provide some guidance on your query:

You can specify a “work window” longer than 2 hours (e.g., 3 or 4 hours), but doing so comes with legal and practical risks under the BC Employment Standards Act (ESA) that should be carefully evaluated.

1. Definition of “Reporting for Work”
Under the ESA:

“Reporting to work” includes remote duties if they require an employee to actively perform job functions (e.g., a dispatcher coordinating emergency responses).

Each instance of “reporting for work” may trigger a new 2-hour minimum pay requirement unless part of a continuous block of work.

2. Risk in Extending the Window
The ESA doesn’t define an exact duration for what constitutes a single report or a “block of work.” Therefore:

A 2-hour grouping aligns with the ESA’s minimum standard and is generally seen as a defensible interpretation.

Expanding to 3 or 4 hours increases legal risk, particularly if the calls are sporadic, require significant employee attention, or occur after a long uninterrupted rest.

3. Jurisprudence and ESA Guidance
Courts and arbitrators typically look at:

Whether the calls are part of an uninterrupted chain of related tasks.

The degree to which the employee’s time is restricted or disrupted.

Whether the employee can reasonably return to personal activities between calls.

If, for example, an employee is called at 10:00 PM and again at 1:30 AM:

A 4-hour window might seem to group both under one report, but the employee may have had time to go back to sleep or resume personal activity in between.

Treating it as one call-out could be interpreted as non-compliant.

Recommendation
If you wish to define a “work window”:

Use 2 hours as the default grouping window, in line with ESA minimums.

You may extend this slightly (e.g., up to 3 hours) if:

You clearly define it in policy.

You document call logs precisely.

The calls are operationally related or tightly spaced.

Avoid 4-hour windows unless there’s a compelling operational justification and legal backing.

You might use wording such as:

“Calls received within 2 hours of the initial on-call engagement will be considered part of the same call-out period for purposes of minimum pay. Calls received after this window will be treated as separate call-outs and subject to a new two-hour minimum pay, if job duties are performed.”

Risk Mitigation
Keep detailed logs of all on-call activity, including timestamps of calls and actions taken.

Allow exceptions or overrides if a later call is significantly disruptive or unrelated to the first.

Have the policy reviewed by legal counsel with experience in BC employment standards.

While the ESA is silent on the precise duration that defines “a report for work,” any policy that reduces entitlements below the ESA’s intention—especially where duties are performed—should be conservative and well-documented to withstand scrutiny.

-HRInsider Staff

[Haley O’Halloran]

in reply to: On-Call at Home – Pay Policy #95520

You’re absolutely right to seek clarity here—on-call pay policies can be challenging to align with employment standards, particularly in British Columbia, where laws under the Employment Standards Act (ESA) have specific provisions for hours of work, rest periods, and compensation. Here’s a breakdown of your questions and relevant legal considerations:

1. Two-Hour Minimum Pay Requirement for On-Call Shifts
Your Proposal:
You want to apply the two-hour minimum pay only to the first call received during an on-call window (e.g., 10 PM–7 AM). Subsequent calls within or outside the initial two-hour block would be paid only for the actual time worked, potentially at overtime (OT) rates if applicable.

Legal Consideration:
Under BC’s ESA, when an employee reports for work, even if sent home immediately, they are entitled to a minimum of 2 hours’ pay (or 4 hours if scheduled for more than 8 hours), unless the work is suspended due to reasons beyond the employer’s control (like a power outage).

The key term is “reporting to work”, which has generally been interpreted to include remote work or phone-in/on-call duties, depending on how disruptive they are.

If a dispatcher must take a call and perform job duties (e.g., coordinating responses), they are likely “reporting to work.”

Therefore, each separate call that requires actual work could potentially be interpreted as a separate “report,” especially if spaced apart by several hours.

Your Policy Proposal Legality:
Risky. Stipulating that only the first call in a shift qualifies for the 2-hour minimum may conflict with ESA if later calls require actual work. You might reduce legal risk by:

Clarifying that “calls within a continuous block of work are treated as part of the same call-out period”.

Using reasonable spacing guidelines (e.g., all calls within 2 hours are one report).

2. 24-Hour On-Call Shift – Are They “Working” the Entire Time?
Your Question:
Is an at-home dispatcher on-call from 8 AM to 8 AM (24 hours) considered “working” the entire time?

Legal Consideration:
No, not automatically. Being “on-call” does not equal “hours worked” unless:

The employee is restricted in a way that prevents them from using the time freely (e.g., required to stay at home and respond within a few minutes).

ESA and jurisprudence focus on the degree of control and interruption.

If the dispatcher can sleep, run errands, and generally go about personal activities, then only the actual time spent working (taking calls) is compensable.

Your Policy:
Stating that only one call per 24-hour period triggers the two-hour minimum is highly problematic unless you can guarantee that all other time is truly unrestricted and that subsequent calls are de minimis or non-disruptive. Multiple substantive call-outs during a shift would likely need to be treated as separate events.

3. Section 36(2) – 8 Hours Free from Work Requirement
Your Question:
Does at-home on-call duty count as “working time” for purposes of the required 8 consecutive hours of rest before the next shift?

Legal Consideration:
Yes, if they perform work during the on-call period, that time counts toward total hours worked. Therefore:

If someone works 8 hours during the day, gets called during their on-call period (say, from 2 AM to 3 AM), and is then asked to return to work at 8 AM, they may not have had 8 consecutive hours off, violating Section 36(2).

Section 36(2) requires at least 8 consecutive hours free from work between shifts unless an emergency or exception applies.

Implication:
You must track when the employee was actually working and ensure that 8 hours of uninterrupted off-duty time is provided before their next scheduled shift, or risk a non-compliance issue.

Recommendations
Structure Your Policy Around Actual Work Performed:

Document how calls are logged and when they start/end.

Define a “report for work” window clearly and reasonably (e.g., grouping close-together calls).

Pay Two-Hour Minimum for Each Distinct Work Period:

If work is performed hours apart, it’s safest to assume they’re separate and should be paid accordingly.

Respect ESA Section 36:

Ensure employees get 8 consecutive hours of rest after any period of work, including on-call duties, before their next scheduled shift.

Seek Legal Review:

Before implementing the policy, have it reviewed by a BC employment lawyer or HR consultant experienced in ESA compliance.

This last part is the most important – I cannot provide legal advice so seeking out legal counsel and an HR director to help you navigate this complex situation is key. Best of luck and I hope this information leads you down the right path!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Salaried OT #95503

This is a nuanced situation involving the intersection of employment contract terms, overtime eligibility, and managerial exemption status under employment standards legislation. Here’s a structured breakdown to help guide your response and potential next steps.

1. Overtime Entitlement Under the BC Employment Standards Act (ESA)
In British Columbia (assuming your organization operates under the BC ESA), overtime pay is required unless an employee meets certain exemption criteria.

General Overtime Rules:
Employees must be paid time-and-a-half after working 8 hours in a day and double time after 12 hours in a day.

For weekly overtime: time-and-a-half after 40 hours in a week.

Salaried Status:
Being salaried does not automatically exclude an employee from overtime pay. What matters is job duties, not the method of compensation.

2. Managerial Exemption
The ESA exempts managers from overtime if they primarily perform managerial or supervisory duties. The Act defines a “manager” broadly, but in practice:

An employee is only exempt from overtime if managing is their principal function—not simply because they perform some managerial tasks.

Criteria (based on ESA Policy Interpretation Manual):
The employee directs the work of other employees, makes disciplinary decisions, hires/fires, or directly represents the employer.

The employee has the authority to make independent decisions about matters of significance.

Occasional supervision or a “lead hand” role is not enough for exemption.

So if your employee only meets “some” of these criteria and also regularly performed physical or routine work, they may not qualify as exempt, making them entitled to overtime.

3. Contractual Considerations
You mentioned the employment contract states 9-hour days. If that was a flat schedule (e.g., no mention of OT pay or averaging agreement), and the employee consistently worked beyond those hours, then the ESA’s daily and weekly overtime provisions may apply.

If there was no written averaging agreement under the ESA, allowing workdays to exceed 8 hours without triggering OT, then overtime is likely owed for any hours over 8/day or 40/week.

4. Out-of-Town Work and Tracking Hours
You noted the employee worked out of town. This complicates matters:

Travel time to a remote worksite may count as work time, especially if travel is outside of the regular commute.

If the employee was effectively “on duty” for extended periods (e.g., being responsible for safety or site operations at all times), this may strengthen their claim.

However, the onus is on the employee to substantiate the overtime claim with credible time records or corroborating evidence (emails, reports, witness statements, etc.).

5. Next Steps and Risk Assessment
Short-Term:
-Assess whether the employee truly meets the ESA definition of “manager.”
-Review the employment contract for clauses about hours of work, overtime, averaging agreements, or waivers (although waiving OT rights is not enforceable under ESA).
-Request evidence of the claimed 500 OT hours and cross-check with project logs or supervisor notes.

Medium-Term:
Consider consulting with an employment lawyer or HR consultant to:

-Evaluate liability risk
-Determine possible settlement or remediation strategies

Review and revise employment contracts for future hires to:
-Clarify OT eligibility or exclusions
-Include ESA-compliant averaging agreements if needed

Based on your description, there is a strong chance this employee is entitled to overtime, unless:

They were truly a manager under ESA standards, and a valid averaging agreement was in place.

A careful legal review is recommended before rejecting or accepting the full 500-hour claim. Ensure to consult with a legal professional and HR director before moving forward. I hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Release letter for BC #95499

Hi Karoline – after discussing with our team, we have a high volume of content to produce this month so I will refer you to the government of BC’s Release Form template and a Consent & Release Template for the time being. We will have this template created within the next few months and I really appreciate your valued suggestion!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Employee termination #95495

In British Columbia, employee terminations are governed by both:

Employment Standards Act (ESA) – which sets out minimum statutory requirements for notice or pay in lieu.

Common law – which may provide a greater entitlement based on factors like age, tenure, position, and availability of similar employment.

For severance calculations, employers must consider both, and provide at least what is required under the ESA, though common law entitlements are often higher unless a valid employment contract limits them.

Statutory (ESA) Approach:
ESA would consider Jan 2022 as the rehire date and exclude previous service due to the resignation (i.e., break in service).

Therefore, under ESA: ~2.5 years of service (Jan 2022 – current date, excluding mat leave).

Common Law Approach:
Courts sometimes treat the employment as continuous if the resignation and rehire were connected (e.g., personal reasons but rehired within a few months under similar terms).

However, a 5-month break (Aug 2021–Jan 2022) may break continuity unless:

-The resignation was induced or prompted by the employer,
-There was a mutual understanding of return,
-No formal release was signed, and
-The job duties and terms were substantially similar upon return.

If you treated her as a new hire in Jan 2022, this will likely limit her claim under common law, unless challenged and continuity is argued.

Severance Pay Guidance
1. Minimum ESA Notice or Pay in Lieu:
For 2.5 years of service, the ESA minimum is:

-2 weeks’ notice or pay in lieu (as she hasn’t reached 3 years).

2. Common Law Reasonable Notice:
More generous than ESA, based on Bardal factors:

-Age (not provided, but relevant if 45+),
-Position/role (seniority/responsibility matters),
-Years of service (arguably 2.5 or 5+ depending on continuity),
-Availability of similar employment.

Typical awards range from 2–6 weeks per year of service, often totaling 2–6 months for short-to-mid-term employees in professional roles.

If treating her as having 2.5 years of service, a reasonable common law notice could be:

-2 to 3 months’ pay in lieu of notice.

If arguing continuous service from Aug 2018, that could increase to:

-4 to 6 months’ pay in lieu (depending on her age and role).

Recommendations
If her contract limits her to ESA minimums: 2 weeks’ pay in lieu (safe and compliant).

If no limiting contract and no claim of continuous service: consider offering 2–3 months’ pay in lieu to align with common law expectations.

If continuity may be challenged (and you want to mitigate risk): a more generous package of 3–4 months’ pay in lieu could help prevent litigation.

Document your rationale clearly, especially if you do not recognize pre-2022 service.

Suggested Next Steps
Review her current employment contract – Does it limit severance to ESA minimums?

Consult an employment lawyer – Especially if there is a risk of the employee asserting prior service.

Prepare documentation – Include a written breakdown of service periods and basis for your severance calculation.

Refer to the HRInsider Termination Letter Template and our Severance Agreement Template after speaking to legal counsel to ensure you are following through with these actions compliantly!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Body Odour #95493

This can be an awkward issue to address with any team member, whether it be body odour or using too much perfume – especially as the weather gets warmer. You are clearly coming at this situation with an empathetic viewpoint, and I think you have all the correct measures in place. If possible, I would send out a reminder via email and posted on any community bulletin boards in common areas as such: “Hey team, as the weather warms up we want to remind everyone to maintain good hygiene, apply deodorant at least once daily, and ensure you are not spraying too much perfume/cologne on yourself before work – it helps show respect for your coworkers and keep this a pleasant space to work in! Please refer to our respectful workplace policy and body odour policy if you have any questions or need more information.” This way, you are not singling out the employee.

If the issue persists, it is okay to have a one-on-one meeting with this employee in a private setting about your concerns. You have approached this topic with sensitivity and I am sure you will do the same when addressing it with your team and, if it leads to it, with the individual in question. Check out our article “Talking About Hygiene Concerns In The Workplace” and you can adapt our Scented Products In The Workplace Policy to address body odour and hygiene concerns. Best of luck and I hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Pay Out #95481

Alright, let’s break this down.
-The employee lives in Ontario, so Ontario Employment Standards Act (ESA) applies.
-Less than 5 years of employment.
-Vacationable earnings: $180,000 (assumed to be annual earnings for 2025).
-Only 1 vacation day taken in 2025.
-Termination date: May 31, 2025.

Relevant ESA Rules (Ontario)
For employees with less than 5 years of service:

-Entitled to 2 weeks of vacation per year.

Vacation pay = 4% of gross wages (i.e., vacationable earnings).

If vacation time was not taken, unused vacation days must be paid out at the time of termination.

Step-by-Step Calculation
1. Annual Vacation Entitlement in Days
Assuming a 5-day workweek:

2 weeks = 10 vacation days per year.

2. Vacation Pay Accrual (for Jan 1–May 31, 2025)
Time worked: 5 months out of 12 = 5/12 of the year.

Vacationable earnings from Jan 1–May 31:

5 over 12 × 180,000 = 75,000

Vacation pay earned:

4% × 75,000 = 3,000

3. Vacation Taken
1 day taken = 1/10 of annual entitlement.

That’s equivalent to:

1 over 10 × 4% × 75,000 = 300

4. Vacation Pay Owing
Total accrued: $3,000

Already used (1 day): $300

Owing at termination:

3,000 − 300 = $2,700
​
Final Vacation Pay Owing: $2,700
This amount should be paid in addition to any other wages owing at the time of termination.

Additional Notes
If the employee’s vacation pay is paid on each paycheque (some employers do this), ensure you check if any of the $3,000 has already been paid.

Always double-check employment contracts or company policies for any enhanced entitlements. Learn more about vacation pay calculation requirements and how to calculate vacation pay on the HRInsider site.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Fixed Term Contracts – Duty to Accommodate #95480

This is a nuanced situation involving fixed-term employment, layoffs, and accommodation obligations under human rights law. Here’s a detailed breakdown of the legal and practical considerations:

1. Human Rights and Duty to Accommodate
Under the BC Human Rights Code and WorkSafeBC policies, employers have a duty to accommodate employees who are injured or disabled, to the point of undue hardship. This obligation can extend beyond the original term of employment, especially when the employee was still participating in a return-to-work program due to a workplace injury.

Key Implication:
If you are recalling other laid-off employees, excluding the accommodated employee could be seen as discriminatory, especially if the only reason for exclusion is their disability status or ongoing accommodation needs.

2. Fixed-Term Contract Expiry During Layoff
The expiry of the fixed-term contract during the layoff is significant, but it does not automatically end your duty to accommodate. Courts and tribunals have recognized that employers cannot rely solely on contractual terms to avoid human rights obligations.

If you are effectively reinstating the same role or a similar one, and you extended contracts for others, failing to do the same for the accommodated employee could expose the organization to legal liability (e.g., for discrimination or failure to accommodate).

3. Recall Obligations and Layoffs
If the employee was laid off with others due to lack of inventory, this in itself is not discriminatory. But once the recall process starts:

If you are recalling others to similar roles, you should give serious consideration to recalling the employee on accommodation.

This is especially important if the position still exists or is being reoffered.

Even if the original fixed-term contract expired, you may be viewed as offering a new employment opportunity, and you must do so in a non-discriminatory manner.

4. Best Practices
To avoid allegations of discrimination:

-Offer re-employment to the accommodated employee, assuming the role is available and can support the accommodation.
-Document your efforts to accommodate and your rationale for any decision made.
-If you have concerns about operational feasibility of accommodation under the new circumstances, you should assess and document the undue hardship involved.

You may also want to consult legal counsel or an employment law expert to confirm your specific risks and obligations.

Read more about the duty to accommodate here.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Ontario Medical Leave #95479

Based on the situation you described, here is a detailed overview of medical leave and job protection entitlements under Ontario’s Employment Standards Act (ESA) and Canada’s Employment Insurance (EI) system, as they relate to an employee who became incapacitated on February 24, 2025, after four months of employment.

1. Ontario’s ESA: Sick Leave and Job Protection
Under the Ontario Employment Standards Act (ESA):

Sick Leave Entitlement
Employees are entitled to up to 3 unpaid days of job-protected sick leave per calendar year after 2 consecutive weeks of employment.

Since your employee had 4 months of service, they would have been eligible for this leave at the time of hospitalization.

However, this leave only protects 3 days, and does not extend job protection beyond that period.

Critical Illness Leave / Family Medical Leave / Infectious Disease Emergency Leave (IDEL)
Other longer ESA-protected leaves (e.g., Critical Illness Leave, Family Medical Leave) require:

-6 months of continuous employment, which your employee did not meet.

Infectious Disease Emergency Leave (IDEL), created during COVID-19, is only available in specific pandemic-related situations and likely not relevant here unless hospitalization was due to COVID.

Conclusion under ESA
ESA would have provided job protection for only 3 unpaid sick days.

Because the employee was absent and uncommunicative for over 2 months with no medical communication, you were within your rights under ESA to conclude employment after reasonable attempts at contact.

2. Federal EI Sickness Benefits
Employment Insurance (EI) Sickness Benefits provide temporary income support if an individual cannot work due to medical reasons.

Eligibility Requirements
-600 insured hours of work in the 52 weeks before the claim or since the last EI claim.
-A medical certificate confirming the illness/injury.
-Apply within 4 weeks of becoming unable to work.

Key Issues in This Case
If the employee only worked 4 months (approx. 16 weeks), and assuming full-time hours (e.g., 37.5–40 hrs/week), they may have reached around 600 hours.

However, if they were part-time or casual, they may not have accumulated enough hours.

The late application could be problematic. EI applications normally must be submitted within 4 weeks of work interruption, but:

Late applications can be accepted with a valid reason—e.g., hospitalization and no phone access could be a sufficient explanation. They would need to provide proof of hospitalization and reason for delay.

Benefit Details
-Up to 26 weeks of sickness benefits (as of recent changes).
-Paid at 55% of average weekly earnings, up to a maximum.

3. Human Rights Consideration
While not directly part of ESA or EI, under the Ontario Human Rights Code, employers have a duty to accommodate disability, including mental or physical illness, to the point of undue hardship. However:

The duty to accommodate is triggered only when the employer is made aware (or should reasonably be aware) of the disability.

In your case, if the employee never informed the employer until May 9 and you had no evidence or reason to know they were hospitalized, your duty to accommodate would not have been triggered earlier.

Next Steps
EI Application Support:

You may wish to support the employee in submitting an EI sickness benefits application and a late application explanation.

Provide a Record of Employment (ROE) if not already submitted.

Consider Reinstatement:

Reinstatement is not required under ESA or EI.

However, if feasible, you could consider re-hiring or accommodating the employee based on medical documentation and operational capacity.

Seek Legal Advice:

Given potential human rights implications and the sensitive nature of a medical leave claim, it’s wise to consult employment legal counsel for your jurisdiction to assess risks and options. While you navigate this matter, you can also check out resources on the HRInsider site, like our Special Report on navigating sick leave.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Workers Compensation Coverage – Remote Workers #95477

In your situation, where the company is registered and has a physical office in Ontario but employs remote workers who live and work in Alberta (including global travel), you will need to register and maintain WCB coverage in Alberta for those employees.

Alberta WCB Coverage Requirements
Who Must Register
The Workers’ Compensation Board – Alberta (WCB-Alberta) requires any employer with workers in Alberta to register, even if:
-The business is based in another province (e.g., Ontario).
-The workers are remote and work from home.
-There is no physical office in Alberta.

Remote and mobile workers who are based in Alberta are considered “working in Alberta,” and therefore, WCB-Alberta coverage typically applies.

Relevant WCB-Alberta Guidance
WCB-Alberta specifically states that:

“If you hire workers who live and work in Alberta (even from a home office), you must register with WCB-Alberta, regardless of where your business is headquartered.”

Ontario WSIB Considerations
If your company is already registered with WSIB in Ontario for employees working out of the Ontario office, that coverage applies to Ontario-based employees only.

WSIB coverage does not extend to employees residing and working in Alberta.

Interprovincial coverage is not automatically portable, meaning each province typically requires separate registration with its respective workers’ compensation board.

Global Travel Element
Employees who travel internationally but are based in Alberta for their home office still fall under Alberta jurisdiction for WCB purposes.

If they sustain a work-related injury while abroad, Alberta WCB would generally provide coverage.

You may also want to check for any necessary supplemental international travel coverage or health insurance for business travel.

Penalties for Non-Compliance
Failure to register with WCB-Alberta when required can result in:
-Fines.
-Retroactive premiums.
-Denial of coverage for injured workers.
-Legal liability in case of workplace injuries.

You should:
-Register with WCB-Alberta as an out-of-province employer with workers in Alberta.
-Maintain your WSIB registration in Ontario for Ontario-based employees.
-If applicable, consider securing travel or global accident insurance for traveling workers.

You can contact WCB-Alberta directly or visit https://www.wcb.ab.ca to confirm your classification and complete registration.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Disciplining employee post investigation retaliation #95440

Here are some recommended actions to take based on best practices:

1. Acknowledge and Take the Complaint Seriously
The first and most important step is to formally acknowledge the complaint from the complainant and thank her for bringing it forward. Emphasize that retaliation of any form is strictly prohibited under your organizational policy and applicable employment and human rights legislation (e.g., in BC or Canada more broadly, retaliation is prohibited under both the Human Rights Code and Occupational Health and Safety regulations).

2. Assess the Nature and Evidence of the Retaliation
Before issuing disciplinary measures, conduct a preliminary assessment of:

-Specific behaviors reported (dates, incidents, people involved)

-Context of those interactions (e.g., are there patterns, was there intent?)

-Any supporting documentation or witness observations

-Whether these behaviors violate your anti-retaliation or respectful workplace policies

Even if the alleged behaviors seem “subtle” (e.g., coldness, exclusion), they may still qualify as retaliatory if they can be shown to negatively impact the complainant’s work environment because she participated in the investigation process.

3. Interview the Alleged Retaliators
Call the named individuals in for a confidential meeting. This is not yet a disciplinary step, but an opportunity to:

-Inform them of the concern (without disclosing confidential details)

-Remind them that retaliation is a serious matter and is grounds for discipline

-Ask them to provide their side of the story

-Reiterate expected workplace conduct going forward

Avoid rushing to a written warning unless you’ve substantiated that retaliation likely occurred and that the individuals had reason to know that their behavior would be perceived as punitive.

4. Take Proportionate Corrective Action
If the facts support that retaliation occurred, a written warning may be appropriate, especially if:

-The behavior was intentional

-The individuals had been previously warned

-The impact on the complainant was significant

In less clear-cut cases, a verbal warning documented internally and a reiteration of expectations may suffice. Also consider:

-Mediation or facilitated dialogue, if appropriate and safe

-Monitoring the situation, including checking in with the complainant regularly

5. Follow Up and Document Everything
Keep detailed, confidential records of:

-The complaint

-Any interviews held

-Outcomes and decisions made

-Communicate to the complainant what actions were taken (in general terms, maintaining confidentiality of others)

Make clear that retaliation is being taken seriously and that she should continue to report any concerns.

6. Reinforce Organizational Culture and Training
This case highlights the need for:

Refresher training on harassment, retaliation, and respectful workplace behavior

Clear internal policies that outline:

-What retaliation is

-How it will be addressed

-Everyone’s responsibilities post-investigation

I hope this helps and best of luck with this process!
-HRInsider Staff

[Author]

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