[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

[Haley O’Halloran]

in reply to: Performance Software for Union Organization (120 employees) #94199

Hi there!

Here are a few articles you can check out that offer various options in different price ranges depending on your unique needs:
https://union.dev/blog/articleid/34/top-union-software-tools-for-unions
https://www.unionware.com/news-stories/best-union-software

Learn Which Labor Union Software Works Best For You

-HR Insider Staff

[Haley O’Halloran]

in reply to: Ontario Maternity Leave Employment Insurance Top Up #94210

Hi Sarah, thank you for your question!

Standard Ontario maternity leave pay should be 55% of earnings availed for up to 40 weeks, but one parent can’t receive more than 35 weeks of standard benefits. Extended parental benefits pay 33% of earnings.

In Ontario, your employee must give you at least two weeks’ written notice before beginning a their leave and, if you want to request it, they can be required to provide a certificate from a doctor, midwife, or nurse practitioner stating the baby’s due date so you know when her leave will end.

If you have more questions regarding maternity leave in Ontario, check out these articles to further your understanding:
Maternity Leave Game Plan
Maternity Leave Ask The Expert

-HR Insider Staff

[Haley O’Halloran]

in reply to: Overtime & Compensatory Travel #94103

Hello –

Yes, overtime in Quebec is 40 hours. I was referring to federal overtime hours and apologize for the confusion. So any time worked over 40 hours in your jurisdiction should be considered overtime and paid out accordingly.
Commute time to and from the airport is not considered compensable as the flight is the main form of transportation to the site – you only need to cover flight costs and accommodations, along with travel to and from the work site once the employee is in the area you need them to be in for the job.
If your employee spent the maximum amount of time they are allowed to work on a daily basis on travelling to the worksite and working onsite, then they would be working overtime travelling back home from the work site. Therefore, you would need to account their travel time HOME as overtime. Whether they are working within business hours or not, if it is written into their contract that they can work a maximum of 12 hours a day and any extra is overtime, then you must pay those hours as overtime – even if they are spent in the car and if they are “outside of working hours”. Working hours can vary wildly with temporary work and site work, so that shouldn’t be a huge factor unless you have written it into their contract.
Yes of course – here is the link as plain text so you can paste it easily into your browser: https://www.cnesst.gouv.qc.ca/sites/default/files/documents/labour-standards-quebec.pdf

You are asking great questions – let me know if you have any more and I hope we are helpful in this confusing landscape of temporary employment and overtime!

-HR Insider Staff

[Haley O’Halloran]

in reply to: Promotion/Job Changes – Employment Contracts #94054

Yes, you can. However, be weary. Your employee can accept the new position with conditions attached to it, but you will also need to provide transparency regarding whether their new offer will tack onto their total service time with the company overall since hired. If you are attempting to create a completely new job and reset the employee’s service time, the employee may seek legal action and sorting out their severance when the time comes can get complicated. It is best to avoid probationary periods in employment contracts for already established employees with good records, even if they are changing roles. That being said, there is no law against writing a probationary period into the new contract. Just make the employee aware of this condition and proceed with caution.

-HR Insider Staff

[Haley O’Halloran]

in reply to: unresponsive employee #93933

Hi there!

Firstly, let’s address your employee not providing a doctor’s note per their sick leave for an extended period of time now. Illness or injury leave is employee-initiated and you have respected this by granting the employee their sick leave. Since I am unsure how long this employee has been with your company, I will assume they have been there for a couple of years, meaning they are entitled to take up to 5 paid days and 3 unpaid days of sick leave per fiscal year. Since they have passed their allotted paid and unpaid sick leave days, they are now on an fully unpaid absence. If they are unwilling to provide a doctor’s note explaining why they have been absent (which they should have done as soon as they were capable of doing so), and if they or their emergency contacts will not respond to your messages during working hours, you are absolutely in the correct position to terminate their employment. However, you were inquiring whether you are in the right time frame to assume the employee has quit their job.

Your employee is participating in job abandonment, meaning the employee fails to report to work as required, exhibits an intention of not returning to work, and does not notify the employer of their intention to quit. Unfortunately, alleging job abandonment presents numerous challenges for employers, primarily due to the high burden of proof required and the potential legal ramifications of a wrongful dismissal claim. Fortunately, you have exercised due diligence by contacting the employee and their emergency contacts over the past two weeks.

BC law doesn’t specify a ‘reasonable’ period for unexplained absence before it’s seen as job abandonment. It depends on the circumstances and the employer’s ability to prove the employee’s intent to leave the job permanently. So, you can “assume” your employee has quit their job and go forward accordingly, but that could lead to legal ramifications. My best advice is to just terminate the employee. You are allowed to request a doctor’s note, but your employee is not legally obligated to supply you with one – meaning you should just accept that you will not get back the amount you paid this employee for their (assumed) 5 paid days of sick leave but you will save a lot of money by not having them on your payroll anymore – what they did was disrespectful to you and your business! Give them fair notice, cut them loose when that notice is up, and move on.

In BC, employers can write to an employee to let them know that their job will end by a certain date, but notice cannot *begin* if an employee is on vacation, on leave, or unavailable to work due to medical reasons, amongst other conditions. Their leave has ended, so it is currently voluntary and they are refusing to communicate with you. They won’t provide you with any information regarding their leave or a doctor’s note, so you don’t know if they are unavailable to work due to the extent of their medical condition(s).

To let go of this employee, your options are to:

-Give the employee 2 weeks of written working notice.
-Pay the employee for 2 weeks and let them go immediately, or
-Give the employee 1 week of working notice and 1 week of pay.

Since your employee is not working, I would give them 2 weeks of pay and let them go. Hopefully this never happens again!

-HR Insider Staff

[Haley O’Halloran]

in reply to: Vacation Time Question #93582

Hello there!

Unless you have an unlimited paid time off policy, the vacation time your employee has earned for a certain year or period must be taken within 10 months after completing that year. Therefore, if your employee does not use their vacation time within that 10 months, the proverbial slate is wiped clean and they cannot tack on their old vacation days onto this new work period.

As an employer, you also have the right to schedule a vacation for your employee and have that discussion with them to ensure those days are taken before they expire. It sounds like you have a very hardworking employee on your hands – which is amazing, but you also want to provide them with open communication about time off that they are entitled to. Vacation pay must only be payed out to the employee at the end of the year if it is before the 10 month period where their vacation time expires, and if they quit or are terminated. If they stay with the company, you do not need to pay anything out at the end of the year.

Instating ETO or UTO would mean rewriting your employee’s contract and would not be the best step in my opinion. It is up to your employee when they take their vacation days and how many of them they take – if they choose to not use them, that is their choice. The specificities of vacation pay can become convoluted, so I highly recommend checking out this article navigating vacation pay contract options and our vacation pay compliance game plan, as the answer to this question can also vary depending on the jurisdiction your are in. I hope this answer helps!

-HR Insider Staff

[Haley O’Halloran]

in reply to: creating one policy for a company that works in multiple provinces and states #93580

Hello! You should create policies that are specific to each jurisdiction, as laws and employment terms can vary from province to province, let alone province to state. Thankfully, HRInsider posts policies for all provinces when certain subjects are concerned, easily found through our search bar. It is always a best practice to ensure each employee is given documents and contracts that regard the jurisdiction wherein they live and work – their place of work is where their rights lie, and although it is a tedious task, you must respect that as an HR manager. Best of luck!

-HR Insider Staff

[Haley O’Halloran]

in reply to: Timesheets for Ontario Employees #93577

Hello! It sounds like you are tracking their billable working hours – whether it’s through having your employees clock in or through digital tracking. So long as you record and retain the dates and times your employees work in some form, you do not need to keep a timesheet or something similar. You just need to be aware of when and for how long your employees work, along with when they are taking time off or are working outside of full-time hours. Technically, a work schedule is a form of a timesheet, for example.

If your employee works outside of the typical 40 hour work week – especially on a consistent basis – both you and them can keep track of this overtime to ensure they are compensated accordingly. Otherwise, traditional digital logs or HR software that tracks who is going to be in the office and who is not on any given day suffices for tracking billable working time.

For audit purposes and to prevent time theft, I suggest you keep a record of overtime hours and who is working when. You don’t need to keep a strict timesheet, but it is handy to have a system in place for knowing how many vacation days an employee has in the bank, for example, by having something everyone can reference for timekeeping purposes (your HR manager will know some good programs to use, like Humi). However, legally you do not need to keep a “timesheet”.

When you don’t have a specific timesheet in place, you can suffer from some pitfalls – to avoid these, check out this article on HRInsider. So long as you follow those tips and track time in your own way, you should be perfectly fine. Thank you for your question!

-HR Insider Staff

[Haley O’Halloran]

in reply to: Changing Job Titles and Fresh Consideration #93393

Since you mentioned they will be receiving a different job description and job title, I would highly recommend presenting them with a new employment contract. Refer to this policy to know what you should include in your contract, and remember that the offer letter is a separate document from the contract itself!

-HR Insider Staff

[Haley O’Halloran]

in reply to: Safety for Remote Employees #93391

This is a great question. Many employers believe their remote workers do not require health and safety training because they will not be on-site, which is not true. There are potential risks in any home office space, but your job as an employer is to provide materials (reading, eLearning, and meetings) that help your remote workers identify risks that can come from working at home (such as ergonomic safety and eye strain) and ensure your job site is safe. Since their home is not your job site, you do not have to perform assessments.

However, health and safety still needs to be appropriately managed for employees who are working from home. In certain circumstances, injuries sustained at the employee’s home can be classified as workplace-related. In order to minimize the risk, your remote work policy should:

-Define where the workplace extends to and how the workplace extends into the employee’s home;
-Indicate when the employee is considered to be in the work environment and when they are not;
-Make it clear that breaks are time away from work; and
-Establish that the employee is expected to maintain a safe work area in their home in a manner similar to the office environment and free of safety hazards.

One of the most important health and safety questions that should be answered when working at home is who will be responsible for health and safety issues and worker’s compensation if the employee is injured. To avoid complications, there should be a written agreement between the employer and the employee clarifying these matters. Where possible, aim to maintain appropriate health and safety standards at home by checking in with your remote employees regularly.

Health and safety issues include:

-What parts of the house will be considered the ‘workplace’? Is the bathroom and/or kitchen included?
That employee must immediately report any incident or injury to their supervisor (just as they would at the office).
-How will incidents be investigated?

Of course, there will be significantly reduced health and safety supervision of employees that are working remotely. This further stresses the importance of regular communication between employers and employees to ensure that employees remain safe and healthy and that they continue to comply with the guidelines, practices and procedures implemented by the employer in respect of remote work.

-HR Insider Staff

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