[Haley O’Halloran]

in reply to: Employee Preformance #94594

Hi there!

Firstly, I would recommend not divulging sensitive company information like employee names and verbatim messages on an online forum such as this – record these things, but only keep them between you, your colleagues, and a legal entity if necessary.

Secondly, if you are having trouble with an employee’s absenteeism and are seeing no improvement (especially with no explanation for the lateness from said employee), you are in a good position to begin issuing warnings. If they are issued 3 warnings and still show up late, you have grounds to terminate with just cause. If you are worried about legal ramifications that can come with terminating an employee, please consult legal counsel. Read these articles for more information and best of luck when navigating this difficult situation:
Case alert regarding absenteeism and what steps you should take to avoid legal ramifications.
Absenteeism policy to implement at your workplace.
How to control employee absenteeism at your workplace.

-HRInsider Staff

[Haley O’Halloran]

in reply to: vacation #94585

Hi there! An employee’s eligibility to accrue vacation time while on WSIB benefits depends on several factors, including the specific policies of the employer and the laws in the jurisdiction.

If you are in Ontario, where WSIB is commonly applied, employees are typically entitled to accrue vacation time even if they are on WSIB benefits, as long as they are still considered an “employee” of the company during their time off due to a work-related injury or illness. The employee may continue to accumulate vacation days as part of their ongoing employment relationship, even if they are unable to perform their duties.

WSIB benefits replace a portion of an injured employee’s income while they are unable to work. However, these benefits are not considered “earnings” for the purposes of vacation pay. Employers may be required to continue providing benefits like vacation accruals if the employee is still employed during the absence. The WSIB benefit itself does not replace or account for vacation days. Under the Ontario Employment Standards Act (ESA), employees who are on WSIB leave are entitled to the same vacation benefits as other employees. This includes the accrual of vacation days.

-HRInsider Staff

[Haley O’Halloran]

in reply to: sick days carried over during maternity leave #94502

Hello! Sick days typically do not carry over while an employee is on maternity leave; however, since you have a unique policy at your workplace that involves sick time being carried over year by year, the amount of sick days they accrued before going on maternity leave will stay with them while they are on leave and when they return.

Most jurisdictions require employers to continue providing standard employee benefits, including sick leave, during maternity leave. BUT, while on maternity leave, an employee does not accrue additional sick days – so they would only have access to what they accrued before taking leave.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Just Cause Termination/ Alberta #94501

Hi there! Because this question has a lot of legal implications attached to it outside of terminating an employee (posing a threat to a vulnerable client’s bodily harm while on company time, for example), I would highly recommend you seek out legal counsel. This scope is beyond “Ask The Expert” and it appears that this employee not only took advantage of you as an employer, but may be a dangerous individual, especially when working in this field. A lawyer can advise you on how to proceed both with termination and any other counsel you may need to navigate this process. Please also be weary of any action that may be taken by the affected client, as well – document everything and present all of this to a lawyer.

Best of luck and sincerest apologies about this employee’s conduct. It is in no way acceptable.

-HRInsider staff

[Haley O’Halloran]

in reply to: Sick Note #94498

Hi there! Requiring a doctor’s note currently depends on which jurisdiction you reside in – for example, Ontario passed a bill in October banning employers from requiring employees to providing a doctor’s note for sick leave. However, sick leave entitlement as federally regulated currently allows up to 3 days of paid leave and an additional day of paid medical leave at the start of each subsequent month.

If you are based in Ontario, one option you have is writing into your employment contract that you require a doctor’s note stating the LENGTH of the leave so you know when your employee will return to work, as there are length allowances with sick leave. If you reside outside of Ontario, you can request a doctor’s note from your employee. The best repercussion to follow through with is a warning, as there are many reasons an employee may not want to provide a doctor’s note for their short, 3 day paid sick leave (no GP, privacy concerns, embarrassment, unknown diagnosis). If they pass the final day of their sick leave allowance, you can definitely bring up a concern of job abandonment and request a note again (outside of Ontario!)

-HRInsider Staff

[Haley O’Halloran]

in reply to: Mental Health Accommodation #94453

Hi there! It sounds like you have done everything you can beyond a reasonable doubt to provide this employee with accommodations that would help them perform better at work and take care of their mental health. If they are not willing to disclose what they are struggling with and it continues to affect their work performance, it is within your rights to suggest a leave of absence to allow the employee to take care of their health. If they deny there are any issues and you continue to see poor performance every day, issue warnings before jumping to termination.

If an employee discloses a disability and requests accommodations, you must engage in a process to provide reasonable accommodations. However, if the employee does not request accommodations, you are not obligated to make changes based on mental health conditions. If the employee’s performance is not meeting expectations, you can manage the situation as you would with any other employee struggling with performance issues. This could include setting clear expectations, providing feedback, offering additional training or support, and possibly following up with progressive discipline if necessary.

Termination should always be a last resort, especially when an employee is suffering, but if they give you nothing in terms of transparency so you can provide proper accommodations or an improved work performance, they will be leaving you with no other choice but to issue 3 warnings and then resort to just cause termination. Of course, it’s crucial to document your interactions with the employee, including any conversations about performance and accommodations. This documentation will help protect your organization in case there are future concerns regarding potential discrimination or claims of inadequate support.

Best of luck and remember to always lead with empathy – hopefully this employee opens up to you and finds the help they need for both themselves and their workplace!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Leave of Absence Length / Long-term illness and injury / Alberta #94434

As you know, Alberta’s Labour Standards provide that an employee is entitled to up to 16 weeks of long-term illness or injury leave within a calendar year. After this, you do not have an obligation to maintain the employee’s position unless there are specific accommodations or extensions under the law. As an employer, you are not required to extend the leave beyond 16 weeks.

However, employers have a duty to accommodate employees with disabilities up to the point of undue hardship. 18 months is an exceptionally long duration and likely constitutes undue hardship, especially for a non-profit with a critical role to play in delivering services. You are not legally required to keep the position open for the full 18 months unless the employee’s absence is due to a recognized disability, and the absence results in a situation that can be accommodated reasonably.
After the 16-week period, you could explore other forms of accommodation (such as a reduced work schedule or an alternate position). I would suggest, if you really want to keep this employee and respect their wishes of an 18 month leave, that you present them with a new employment contract that contains provisions on long-term leave and benefits provided beyond Alberta’s minimum standards, or you can agree that the employee will be dismissed if they do not return after 16 weeks as that is the amount of time legally allowed for ALL employees to take regarding injury/illness leave in Alberta, whether that workplace is a non-profit or a major bank. This law applies to all workplaces.

Given the complex nature of this case—combining health leave, a long absence, and the specific needs of your non-profit, it would be wise to consult with a lawyer specializing in employment law to ensure that you are handling the situation properly and in full compliance with both the ALS and the duty to accommodate. Remember to keep detailed records of all communications with the employee, including discussions about their leave, the medical notes, and any accommodations offered. This will ensure that your organization is fully prepared in case any disputes arise.

Warm regards and best of luck!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Long Term Disability Premiums- Employee pays tax #94431

If the employer is paying the premiums, the benefits received by the employee from an LTD claim are generally taxable to the employee. The employee will be taxed on the LTD benefits received when they make a claim. If the employee were paying the premiums themselves (through payroll deductions, for example), the LTD benefits they receive would typically be non-taxable. This is because they have already paid for the premiums with after-tax money.

Since your company is paying the majority of the premiums on behalf of your employee, it likely means that the employee’s LTD benefits, if they make a claim, will be taxable to them. The employee pays the tax on the benefits, but the fact that you are paying the premiums generally means that the LTD benefits are treated as taxable income for the employee when a claim is made.

Thank you for your question!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Climate Leave Canada #94404

Hi there!

In Canada, we do have an adverse weather policy available on the site here. It is completely up to an employer or institution to decide on when weather conditions are too severe for workers to come into the office or perform work on the job site. If you are an employer, it is best to make this decision with the safety of your workers in mind – especially those with a longer commute who may risk dangerous driving or those who are walking and could suffer from cold temperatures or dangerous conditions.

In terms of employees receiving time off, that is once again up to the employer. They may give you paid or unpaid time off for the day, or they may find alternative work arrangements to ensure deadlines are still met.

Hope these answers and resources help! What is happening in Spain is very scary and unprecedented – we wish every resident of the nation well and hope the floods let up soon. The amount of destruction, property damage, and lives lost has been a tragedy to say the least.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Terminate with cause? #94394

Hi Mirella! I am so sorry to hear about these incidents – this is very difficult to deal with as an employer and you have been very forgiving. Since these are dealing with legal matters like property damage and safety concerns for your clients and other employees, I would highly consider not just termination but also seeking out legal advice. This is beyond an Ask The Expert and I don’t want you to suffer any more as an employer or a company! You want to follow the best legal pathway possible and avoid any turmoil.

Wishing you all the best.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Ontario Family caregiver leave #94393

Ontario’s Family Caregiver Leave under the Employment Standards Act (ESA) allows employees to take unpaid, job-protected leave to care for a family member who has a serious medical condition. This employee fulfills the key factors for eligibility (the family member being their parent, this family member having a serious medical condition assumingly confirmed by the medical practitioner, and the length of the leave they will be taking.)

Ontario family caregiver leave is up to 8 weeks per calendar year. In terms of your question about taking leave across two calendar years, the employee can take the 8 weeks in 2024 and then continue the leave into 2025. However, the leave entitlement resets at the start of each new calendar year. This means the employee would have up to 8 weeks of leave in both 2024 and 2025.

Thus, the employee could potentially take up to 8 weeks in 2024, and then, once January 2025 begins, they can take another 8 weeks of Family Caregiver Leave, assuming the medical condition continues to require their care and the necessary documentation is provided.

Hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Entitlements when Returning from Leaves #94391

When crafting a vacation entitlement policy that addresses employees returning from maternity/paternity leave and STD/LTD leave under Ontario’s employment standards, there are several considerations to ensure fairness, compliance with the law, and consistency in your benefits offering.

Ontario’s Employment Standards Act (ESA) does not specifically address how vacation time should be handled during maternity/paternity or disability leaves. However, it does state that employees on these types of leave should continue to accrue vacation time.
Both maternity/paternity leave and disability leave are job-protected under the ESA, and employees on these leaves are entitled to accrue vacation during their time off. Employees returning from disability leave should be treated similarly to those returning from maternity/paternity leave in terms of vacation entitlement. If your company policy provides vacation upfront for the calendar year and employees are unable to take their vacation due to being on leave, there are a few options to consider:

Option 1: Pro-rated Vacation Entitlement:
If an employee takes an extended leave, such as STD/LTD, for part of the year, you may choose to pro-rate their vacation entitlement based on the number of months they worked. However, this approach can be administratively complex and may lead to disputes, particularly if the employee’s leave extends into a new vacation year.

Option 2: No Pro-ration (Full Entitlement Given):
Under this option, employees would continue to receive their full entitlement (e.g., 4 weeks) for the year, even if they were absent for part of the time due to STD/LTD. This approach helps ensure that employees don’t lose out on vacation time due to illness and is viewed as a more generous practice. The downside is that employees might not have the opportunity to use their full entitlement, and there could be potential carryover issues if employees don’t use all their vacation days.

Accrual during leave:
While your policy doesn’t currently allow for vacation accrual (vacation is given upfront), Ontario’s ESA does require that employees continue to accrue vacation time during their leave (unless the employee is on a leave that exceeds 12 months). This means you may need to adjust your policy to reflect vacation accrual, particularly for employees who are out on STD/LTD leave.

If your policy offers upfront vacation time, and the employee has already used some of their 4 weeks (for instance, by taking vacation before the leave), you may want to clarify how much vacation the employee will receive once they return to work. Here are a few ways to address this:
Full entitlement, no proration: Continue giving the full 4 weeks of vacation as if the employee had not been on leave.
Prorated vacation: If you prefer a proration model, you would give the employee a fraction of the annual vacation time based on the portion of the year they were present for. For example, if they were on leave for 6 months, they could receive 50% of their total entitlement, or 2 weeks, for the year.
Carryover Policy: Your current carryover policy allows 5 paid vacation days to carry over to the next year, with any unused time beyond that being forfeited. This needs to be addressed carefully for employees who were on extended leave (STD/LTD, maternity/paternity). Since they may not have had the opportunity to use their vacation time, you should consider whether your carryover policy still applies to them or if it should be adjusted to allow for additional carryover or extensions for these employees.

One option could be to extend the carryover period for employees returning from leaves to allow them more time to use their vacation days.
Alternatively, you could consider making an exception to your forfeiture rule for employees returning from leaves, granting them the ability to carry over unused vacation for a longer period.

If an employee is on STD/LTD leave and has already used some of their vacation entitlement, consider allowing them to retain their full vacation entitlement for the year (without proration) to avoid penalizing them for being on leave. Clearly state that vacation time is accrued during STD/LTD, even if the employee is on leave for a prolonged period. For unused vacation days, extend the carryover period or adjust the forfeiture rule to accommodate employees returning from long-term leave.

Employees on maternity/paternity leave should also continue to accrue vacation during their leave, in line with ESA requirements. Provide full vacation entitlement for the year, regardless of leave, unless the employee was on leave for the entire year.

The best approach is likely to continue providing employees with their full vacation entitlement (without proration) during both STD/LTD and maternity/paternity leaves. You should update your policy to ensure clarity around accrual during leaves, vacation carryover, and the handling of unused vacation upon return. Let me know if you have any more questions!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Severance #94314

Hi Jenny! Two questions before I can properly answer this – in which jurisdiction do your workplace and employees reside, and had you written into the probationary employees’ employment contracts that they would not be offered severance payment until they reached/passed probation?

[Haley O’Halloran]

in reply to: Vacation Accrual during a sick leave #94302

Hi there! Firstly, this is a difficult situation to go through as an employer and I am sorry to hear that this has happened.

You did everything correctly from asking for her to apply for long term disability to asking for return-to-work dates. However, even if she did supply a return-to-work date of 9 months from the beginning of her leave, she still left her job. For employees on unpaid leaves, they will typically not earn vacation pay because they have not earned wages upon which they would earn paid vacation. However, employees on unpaid leaves will still earn vacation time as per their minimum ESA entitlement – it will just be unpaid. So, if she stayed with the company, she would still have UNPAID vacation time to use up – but she is no longer with the company and you owe her nothing but a severance package (with only the applicable monetary amounts, if any) and a farewell!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Overtime & Compensatory Travel #94055

Hello!

If your employee works any amount of time past 44 hours in a week, they are entitled to overtime pay no matter the type of employment they possess.
According to labour and employment law in Quebec, “The employer is required to reimburse an employee for reasonable expenses incurred where the employee must travel or undergo training at the employer’s request.” Therefore, you will need to compensate this employee for the time it takes them to travel from their “home base” (the main office/their main place of work – even if that is their home) to the site, along with any additional charges like fuel.
I know that in provinces like Ontario, travel time is counted towards weekly hours – so if their travel to and from the work site pushes their hours over the edge of 44 per week, you are entitled to pay them overtime pay. It must all fall under standard hours worked.
The worker does not need to be compensated for the time that it takes them to get to the airport, they would just need their flight and accommodations compensated for by the company. The flying would be their main means of travel to the work site, so you should not worry about how they get to the airport – that is not on company time (they could arrive 3 hours early for their flight and that would be on your dime, if this was the case).

You have quite a few questions and this can be a difficult situation to navigate. I can’t give you an outright answer regarding exempt status, but I can provide you with some resources that will answer all of your questions and then some. At the end of the day, create an employment agreement that works well for both parties and is time and cost effective! Communication is key and respect goes both ways. Check these links out for more information:
CNESST Labour Standards in Quebec
Overtime Exemption For Managers – HR Insider
All About Quebec – HR Insider
Overtime Exemption Rules

I hope this helps and best of luck!

-HR Insider Staff

[Author]

Posts