[Haley O’Halloran]

in reply to: Company Assigned Vehicle Policy #94737

Hi there! Please check out the HRInsider resources below:

Calculating Costs of Company Vehicle Use
Company Vehicle Use Policy
Company Vehicle Policy with Vehicle Log
Safe Use and Attendant Liability for Company Vehicle Use Document

If you are looking for anything else, just search key terms like “vehicle use” “taxable benefit form” or “company vehicle policy” on the site and you will find what you are looking for!

-HRInsider Staff

[Haley O’Halloran]

in reply to: unused vacation accrual payout #94661

Vacation pay is governed by both federal and provincial employment laws, and the specific requirements can vary depending on your jurisdiction. However, I can provide general guidance based on Canadian employment standards.

It is generally legal for employers to have a policy that unused accrued vacation pay is paid out only when an employee leaves their employment. This type of policy is common and acceptable as long as it aligns with the relevant labour laws in your province. However, the specifics may vary depending on the province, so it is essential to ensure that the policy does not contravene any local employment standards. For instance, under the Canada Labour Code (which applies to federally regulated employers), employees must receive vacation pay at least once a year, either taken as vacation time or paid out. Similarly, provincial employment standards may have requirements about how vacation pay should be accrued, when it should be paid, and whether it can be cashed out while employed.

Employees do not automatically have the right to request a payout of a portion of their vacation pay while they are still employed unless otherwise stated by the employer or applicable legislation. In most provinces, vacation pay is intended to be taken as time off, and the general expectation is that employees should take their vacation leave. However, if employees request to cash out their vacation time before leaving employment, it is usually at the discretion of the employer. Employers can choose to allow the payout, but they are not obligated by law to do so unless specific provisions are in place. For example, if an employee has accrued 30 days of vacation pay, the employee may request to have part of that paid out (e.g., 10 days), but the employer is not required to approve such a request unless there is a policy or contractual agreement that allows it. As mentioned, if there is no policy allowing vacation pay cash-out during employment, the employer has the discretion to deny the request.

The basic legal framework regarding vacation pay in Canada is as follows:
Federal jurisdiction: Under the Canada Labour Code, employees are entitled to two weeks of vacation after completing one year of employment. Employees must be given the opportunity to take their vacation (or paid out) at least once per year.

Provincial jurisdiction: Each province has its own set of laws about vacation entitlements, but they typically provide a minimum of two to three weeks of vacation per year, with a 4% to 6% payout of earned wages for vacation pay.
In most cases, vacation pay can either be taken as time off or paid out when the employment ends. But unless otherwise agreed to or outlined by an employment contract or policy, employees generally cannot demand payment of unused vacation pay until they leave the company.

Employers like you are within their rights to determine their vacation pay accrual and payout policies, as long as these policies comply with employment standards in their jurisdiction. Employers have the right to set the following:

-The timing of when vacation pay is paid out (i.e., whether it is paid out upon termination or if employees are allowed to cash out vacation pay while still employed).
-Whether employees are required to take vacation or if they can accumulate it over time (some offices have accrued vacation days carry over into the following year, while others have a use it or lose it policy, meaning the vacation days reset every fiscal year for everyone no matter how little or how much was used).
-Whether an employee can request a payout of accrued vacation pay or must take time off instead.

Therefore, it is best to abide by the labour laws of your specific jurisdiction, speak with your team and your HR director about how your company would like to approach vacation day accrual and vacation payout, and you may even want to consult legal counsel to dot all i’s and cross all t’s to avoid any complications or frustrations down the road. You may set your policies on how vacation pay is managed and cashed out, but you cannot violate the statutory minimum vacation entitlement required by law.
You should ensure that your vacation pay policy complies with the specific provincial or federal employment standards applicable to your business.

I hope this helps!

-HRInsider Staff

[Haley O’Halloran]

in reply to: Tax Forms for Remote Workers #94653

Great catch – we are currently working on some pieces regarding this new CRA policy. To answer your question now, employees who physically report for work at an establishment of their employer are subject to the payroll deduction rates of the province in which such establishment is located. Based on the CRA’s new policy that you mentioned, employees working remotely on a full-time basis will now be subject to the payroll deduction rates of the province in which their employer has an establishment that the remote employee could reasonably be considered attached to. But what does it mean to be attached to an work location as a remote employee?

The Policy sets out primary and secondary indicators to consider when you have a full-time remote employee and are trying to figure out which tax forms to file for them:

Primary indicator:‎ whether the employee would physically attend at that establishment to carry out employment duties and functions, were it not for the full-time remote work agreement. If an employee used to physically report to an establishment of the employer for work immediately before entering into a full-time remote work agreement, that establishment is generally the one that the employee is considered to be attached to, unless the employee’s circumstances or the nature of their duties have changed.

Secondary indicators include:
-The establishment where the employee receives work-related materials or instructions;
-The establishment where the employee obtains instructions regarding their duties;
-The establishment responsible for supervising the employee; and
-The establishment aligned with the nature of the employee’s duties‎.

Employers should examine their fully remote work arrangements to ensure that the payroll deductions align with the province or territory of employment of the establishment in which the remote employee is reasonably attached to. For example, I work fully remote in Ontario, but HRInsider is based in British Columbia. The company sent office supplies to my address, and I take all work direction from my home in Ontario. Therefore, they will still file taxes based on the province wherein my work is done – Ontario.

[Haley O’Halloran]

in reply to: Employee Preformance/ Bonus #94626

Under Ontario’s Human Rights Code, if an employee is denied a bonus due to alleged poor performance, but their team members receive it and there is no documented record of misconduct or performance issues, several potential legal implications arise:

Discrimination: The Ontario Human Rights Code prohibits discrimination in employment on various grounds, including race, gender, disability, sexual orientation, and other protected characteristics. If the employee is being treated unfairly due to one of these protected grounds, it could be seen as discriminatory.

Failure to Apply Fair and Consistent Standards: If the bonus is typically awarded based on performance but there is no documentation or evidence to show that the employee’s performance was subpar, the employer may be acting arbitrarily or without clear justification. The employee could argue that the decision was unfair or inconsistent, particularly if their colleagues received the bonus despite similar or poorer performance.

Constructive Dismissal: If the denial of the bonus leads to a significant and unfair change in the employee’s compensation or terms of employment, the employee may argue that they have been constructively dismissed. This occurs when an employer makes a significant, unilateral change to the terms of employment, essentially forcing the employee to resign. In this case, the reduction in compensation or perceived unfair treatment could be seen as a change to the terms of employment.

Breach of Implied Terms of Good Faith and Fair Dealing: Under employment law in Ontario, there is an implied duty of good faith and fair dealing in every employment relationship. If the employee feels that the denial of the bonus was unjust or based on unfounded allegations of poor performance, it could be seen as a breach of this implied duty. Employers are expected to treat employees with fairness, respect, and transparency.

Lack of Documentation and Due Process: If the employer has made a decision based on alleged poor performance but has no documented evidence of misconduct or performance issues, it may indicate a lack of due process. An employer is generally expected to document and communicate performance issues clearly, especially if they are used as a basis for compensation decisions like bonus awards. Without such documentation, the employee might have grounds to claim the decision was not based on objective or justifiable criteria.

The employee in question could:
Request clarification from you regarding the reasons for being denied the bonus, and ask to see any documented performance records.
File a human rights complaint with the Ontario Human Rights Tribunal if they believe the denial is due to discrimination.
Seek legal advice on whether there has been constructive dismissal or a violation of employment standards.
Ultimately, there could be legal ramifications when handing out a bonus to some employees on a team but not all. Seek legal counsel to correctly navigate this process, document everything, and always try to lead with fairness first.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Employee Preformance #94598

Please read advice above!

-HRInsider Staff

[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

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