[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

[Haley O’Halloran]

in reply to: Changing Job Titles and Fresh Consideration #93389

Hi there! Yes, you should provide fresh consideration to this employee as you are presenting them with a new employment contract. Fresh consideration makes the new contract binding and enforceable. Thank you for your question!

-HR Insider Staff

[Haley O’Halloran]

in reply to: Internal Interviews with Employees on Leave #93385

Thank you for providing more information! In this case, you are fully within your rights to contact the employee with a short message inquiring when their leave will end. Let them know that you are only asking because of the interview process and do not intend to make the employee feel rushed or pressured to return before they are ready. Go ahead with the interview process as normal but set aside a spot for him so he has a fair chance at the position, especially if he takes his time when responding to your message. According to the OHRC, “Employers are entitled to contact employees on leave if it is reasonably required. For example, contact may be needed to assess the length of absence or to find out if there is a potential return to work date.” Be as kind as you were in asking these questions and I’m sure everything will go smoothly.

-HR Insider Staff

[Haley O’Halloran]

in reply to: Internal Interviews with Employees on Leave #93383

Hi there!

I think we will need a bit more information to answer this question. Is this person already employed by your organization or are they a new candidate? Which jurisdiction are you located in?

Additionally, the specifics of your employee’s mental health leave should be agreed upon by both the employee and the employer. If you require a time frame and a doctor’s note, that can be within your rights and will leave you without confusion in the future. Was this more of a one-sided conversation before the employee went on their leave?

-HR Insider Staff

[Haley O’Halloran]

in reply to: Cancelling casual employee shift #93350

Hi there! Two days is ample notice for a casual employee, especially considering the minimum time requirement usually falls between a few hours to one day for most jurisdictions. If they were a permanent full-time employee, you would need to give them at least 48 hours notice of their shift cancellation or else you would have to pay them for 3 hours of their scheduled shift. Since you gave them fair warning about the cancelled appointment and they are hired as a casual employee, you are not required to pay them for the shift unless there is something written in their contract that would expressly go against that policy. Thank you for your question!

-HR Insider Staff

[Haley O’Halloran]

in reply to: Embarrassment Cases/ Investigations In An interview #93031

Hi there! Since you asked the candidate a general question regarding conducting investigations, it sounds like she didn’t need to divulge as much information as she did. Sharing the results is somewhat concerning, but if she went out of her way to not mention any names or specific details that could put those involved in the case at risk of breaching their privacy, I do not think she has committed a breach of privacy. However, I would consider if you want to hire someone who is so willing to share such sensitive information and how that may impact your own company in the future.

We also need to understand the candidate’s perspective – she may have thought you wanted more information to prove the validity of her work experience, especially in regards to specifically conducting investigations. You may want to be more thoughtful with your questioning going forward and request that they not share any specific details or outcomes so you don’t find yourself in a sticky situation. Since I don’t know which jurisdiction your are writing from, which questions you asked during the interview, and the breadth of the details this candidate shared, you can also contact the previous employer (especially if they are listed as a reference on her resume/cover letter) and ask what their confidentiality agreement states to see if she was within her legal rights to share that information. It is always a good idea to check references and previous employers before hiring someone, especially if they speak negatively of a past employer or share information that may be deemed sensitive.

If you think this candidate is the right fit for the role and just had a brief lapse in judgement, check out our posts about employee privacy breaches to make her more aware of what information she is allowed to share and protect your own information and privacy in the future.

Thank you for your question and best of luck during the hiring process!

-HR Insider Staff

[Haley O’Halloran]

in reply to: How can company respond to non-approved leave? #93030

Without knowing your company’s PTO policy and where you are located, I will be going off of the Canada Labour Code rules for vacation days. Since this employee has been with the company for over a year, they are legally allowed 2 weeks of vacation days (14 days). However, you say that the manager of the company only wants to approve 8 accrued days – indicating the employee has already used some of their vacation days. You can learn more about the minimum and maximum amount of vacation days an employee is allowed to take here.

I think the details for this specific situation are a bit lacking and it would be best to speak with the employee one-on-one. However, you are fully within your rights to deny vacation time that goes beyond the allowance set up for this employee – which currently stands at 8 days. I would recommend suggesting that the employee take the 8 days to visit their family and work remotely for the remainder of the 12 days, if that is possible within your company. Or, they can submit a separate request for manager-approved leave for the remaining 12 days.

If you are considering terminating this employee because of the potential threat of them not showing up for work, you are also within your rights to do that (within certain circumstances). If the manager approves a request for 8 vacation days and they take 20, you can terminate that employee for not showing up to work. However, if they use their 8 vacation days and end up being sick for 12 days, resulting in unpaid time off, you cannot terminate the employee. You can request a doctor’s note, as the timing would be quite suspicious. Unfortunately, your employee can deny your request for a doctor’s note if they find your request to be unreasonable.

To keep a complex situation short, communication is key. Make sure to reinstate your company’s PTO and vacation day policy to the employee, make them aware of the time that they have left to take off, and do not approve their request for 20 days of vacation. Be understanding of their situation and try to come to an agreement with them, whether it involves doing work remotely, only taking 8 days to visit their family, or suggesting that they take a leave of absence if such a large amount of time off is absolutely necessary. If your employee finds the rejection of their vacation time request upsetting and refuses to find a compromise that works for everyone, you can consider terminating that employee for excessive absenteeism.

Hopefully your situation does not come to that and you are able to find common ground. You can learn more about vacation time pay and compliance here, along with termination rights of employers below.

If you choose to go down the path of termination, ensure you follow these steps:
1. Review employment contracts and company policies: Check the terms of the employment contracts to understand the conditions under which termination can occur. Also, review your company’s policies on employee termination to ensure you are following the proper procedures.
2. Communicate with the employee: If an employee has not worked for days when they should have been working, it’s essential to reach out to them and attempt to understand the reason for their extended absence. There could be legitimate reasons, such as medical issues or another form of approved leave, which may not be immediately apparent.
3. Investigate and document: Conduct an investigation into the employee’s absence and document your findings. This may include reviewing attendance records, medical documentation (if applicable), and any communications with the employee about their absence.
4. Consult with HR and legal: Involve your human resources department and legal counsel to ensure that you are complying with all applicable labor laws and regulations. Termination decisions must be made in accordance with local laws to avoid potential legal issues.
5. Consider alternatives: Before proceeding with termination, consider other options, such as offering a voluntary separation package.
6. Follow proper termination procedures: If termination is the appropriate course of action, ensure you follow the established termination procedures, which typically include providing written notice to the employee and handling their final paycheck and any outstanding benefits.
7. Conduct exit interview: Offer an exit interview to the employee to provide them with an opportunity to share feedback and discuss the termination process.
8. Address the team: Communicate the termination with the rest of the team in a sensitive and respectful manner to avoid any negative impact on employee morale.

Best of luck and thank you for your question!

-HR Insider Staff

[Haley O’Halloran]

in reply to: Illness and Injury (British Columbia) #92917

Hi there! Thank you for your question. Whether the employee is part-time or full-time, your company must provide them with up to 5 days of paid sick leave per year, and you must pay this employee their regular wages for those days. Employees are also entitled to 3 more days of sick leave, but those would be unpaid. Your employees are not entitled to any further compensation during sick days, and this includes a 15% in-lieu. Therefore, you only owe your employees a maximum of 5 paid days of sick leave – nothing else. In-lieu often refers to a certain percentage of payment given after providing a termination notice, so if these employees are sticking around, you shouldn’t worry about that.

Hope that helps!
-HR Insider Staff

[Haley O’Halloran]

in reply to: Restructuraion #92745

Since this employee is demoting to a team still involved in your organization, this process may be easier to navigate than you think. Your legal obligations in Quebec to manage the demotion of your team leader involve:
-Giving the demoted team leader a new opportunity to join a different team, which you have already done.
-Take steps to familiarize this employee with their new team to ensure their comfort during the demotion process.
-Communicate with the employee fully about their new role and responsibilities, along with creating a new contract that addresses these duties and any changes in compensation and benefits that should be addressed.
-Communicate with the team this employee is joining, introducing them to their colleague and letting them know what their responsibilities will be (and how they can assist in this transition). You can send a short message that communicates these points perfectly by using this template:
“[TEAM MEMBER] has been asked to fill a new role in the team. I am pleased that we are able to continue to benefit from their . . . (skills, experience, or knowledge). People and organizations experience change and we are no different. [TEAM MEMBER]’s new role will allow them to focus their time on __________ (highlight the key aspects of their new role).”

Even with a good and well-managed return to work plan, a demoted employee may struggle with adjusting to the new role. Over the first two to three weeks, it will be the small acts of positive reinforcement and support that can make all the difference. Encourage the demoted employee by indicating the opportunity to receive a promotion is possible in the future.

Identify the employee’s strengths and focus on applying and using the strengths during the first couple of weeks of transition. When possible and appropriate, provide positive, casual, and public acknowledgement of the demoted employee’s contributions. The better able your organization is to help the demoted employee relax, believe he/she is valued and get back to work, the more the entire team will benefit. Learn more about the specifics of navigating a workplace demotion in Quebec here. Thank you for your question!

-HR Insider Staff

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