[Haley O’Halloran]

in reply to: Termination #98725

Yes, proceeding with termination immediately after receiving a medical note could expose you to a human rights complaint based on disability (or perceived disability), even if the termination is performance-based.

Once an employee provides a medical note, the employer is on notice of a potential disability. Under Canadian human rights law, you now have a duty to accommodate to the point of undue hardship. Terminating right after that disclosure can look like the medical issue was a factor—even if your intent is unrelated.

However, termination is still possible—but only if you can clearly demonstrate that:
-The decision was already made (or inevitable) before the medical leave.
-There is strong, well-documented evidence of performance issues and prior discipline (which you have).
-The harassment incident was investigated and substantiated.
-The employee was given a fair opportunity to improve and clear warning of termination risk.

Best practice approach:
Pause the termination while the employee is on leave.
Do not finalize or communicate termination during the leave unless there is urgent business justification and airtight documentation.
When they return, assess fitness to return and resume the PIP/disciplinary process.
If termination proceeds, ensure the rationale is clearly disconnected from the medical leave.

Key risk trigger to avoid:
Terminating because of absence or immediately after disclosure without demonstrating accommodation efforts.

I hope this helps.
-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination within probation period #98604

Important note: This situation involves potential exposure under BC employment law, human rights legislation, and WorkSafeBC prohibited action provisions. While the above guidance reflects best practices, you should consider having your response reviewed by an HR professional or employment lawyer to ensure it aligns with current case law and minimizes organizational risk.

You are in a generally defensible position, particularly given that the termination occurred during the probationary period, performance concerns predated the injury, and you made documented efforts to offer modified duties and communicate with the employee. From a risk-management standpoint, the primary areas of exposure are human rights (disability discrimination) and potential WorkSafeBC prohibited action claims, so your response should be carefully framed to show the decision was unrelated to the reported injury while avoiding overly definitive or defensive language.

It is important to maintain the position that this was a without-cause probationary termination, and avoid language that could be interpreted as justifying termination for cause. Performance and attendance concerns can be referenced as context, but the core message should be that the employment relationship was not progressing satisfactorily during probation. Overemphasizing misconduct or non-compliance may unintentionally invite a higher legal threshold or dispute.

When addressing the injury, use neutral and measured language that demonstrates reasonable efforts to accommodate without appearing dismissive. Emphasize that modified duties were offered and that attempts were made to communicate, while noting that no medical information was received to guide accommodation. Avoid framing this as the employee’s failure; instead, position it as a lack of information and engagement that limited your ability to proceed.

Keep the response concise, factual, and non-inflammatory. Avoid overly detailed timelines, emotionally charged language, or statements that could be perceived as argumentative. The tone should reflect a closed, professional position that does not invite further debate, while clearly documenting that the organization acted reasonably and in compliance with its obligations.

Overall, your approach is sound; the key refinement is ensuring the response is carefully worded to reinforce a probationary, without-cause decision, while demonstrating good-faith efforts around accommodation and minimizing risk related to human rights or WorkSafeBC considerations.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Jury Duty Leave #98502

If the meeting qualifies under your policy, the key factor is whether it overlaps with working hours: any portion that displaces scheduled work should be treated as paid leave, and the employee would still be entitled to take their separate 1-hour unpaid lunch later, whereas time that falls entirely within the unpaid lunch does not need to be paid. While an employee’s ability to choose the meeting time can be considered—particularly if they could reasonably schedule it outside working hours—the main priority is applying your policy consistently, so it’s generally safest to focus on whether work time is impacted rather than scrutinizing scheduling flexibility too closely.

[Haley O’Halloran]

in reply to: Jury Duty Leave #98500

In Ontario, “jury duty leave” is addressed under the Employment Standards Act, 2000 (ESA) as part of an employee’s right to take time off to perform civic duties. Specifically, the ESA provides job-protected leave for employees who are summoned for jury selection, serve on a jury, or are required to attend court as a witness. While the legislation guarantees reinstatement and protection from reprisal, it does not require employers to provide paid leave—so your policy offering 15 paid days is more generous than the statutory minimum. Importantly, the ESA language captures both jury service and being summoned or subpoenaed as a witness, without limiting it to matters involving the current employer.

Based on that, an employee who is subpoenaed as a witness for a matter involving a previous employer would still fall within the scope of ESA-protected leave, since the obligation arises from a legal summons rather than the nature of the employer involved. Your internal policy is actually broader and explicitly includes “attend as a witness by subpoena or summons,” which would reasonably cover this situation. As such, it is consistent—and defensible—to treat these absences as falling within your 15 paid days, regardless of whether the case relates to your organization or a prior employer.

With respect to pre-trial meetings, the key consideration is whether the employee is required to attend due to a legal obligation (e.g., subpoena, summons, or direction from legal counsel in preparation for testimony). If attendance is mandatory and directly tied to fulfilling their role as a witness, many employers interpret this as part of the same protected leave period, even if it occurs outside of formal court time. Since you have already treated the court dates themselves as falling under your policy, extending that treatment to required pre-trial preparation is the more consistent and lower-risk approach, particularly from an employee relations and policy interpretation standpoint.

Finally, if a pre-trial meeting occurs over the employee’s lunch hour or outside scheduled working hours, it generally would not require drawing from paid leave, since it does not result in lost work time. However, if it overlaps with working hours—even partially—it is reasonable to treat that time consistently with how you’ve handled other witness-related absences. Given you’ve already applied the policy to part of this situation, it would be more consistent (and arguably safer) to include the pre-trial meeting under the same leave rather than requiring vacation or other time off for that portion.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: payroll bi weekly semi monthly issues #98499

You’re right to question the tension here—Alberta’s Employment Standards Code requires that employees be paid within 10 consecutive days after the end of each pay period. This effectively limits how far “in arrears” an employer can operate. With a semi-monthly schedule (e.g., pay periods ending on the 15th and last day of the month), organizations can still pay in arrears, but only by a few days—not weeks. In practice, many employers set a short lag (e.g., 3–7 days) between the period end and pay date to allow for payroll processing while staying within the 10-day rule. A longer arrears model (like holding a full extra pay cycle behind) would not be compliant in Alberta.

Biweekly payroll is often preferred because it naturally aligns better with the 10-day requirement while giving payroll teams a predictable processing window (e.g., period ends on a Friday, pay the following week). It’s true this increases payroll frequency compared to semi-monthly, but it reduces compliance risk and administrative strain caused by tight turnaround times. That said, semi-monthly can still work compliantly—you just need efficient cutoffs, possibly estimating and adjusting variable earnings, and tight payroll processing timelines.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Duty to Inquire #98444

Hi Aleesha,

I appreciate you reaching out to us. Situations involving alcohol use in the workplace are generally handled as a combination of HR, workplace safety, and organizational policy considerations. The appropriate response can vary depending on factors like the nature of the role, safety risks, company policies, and any applicable employment or human rights obligations.

Because of those variables, it’s important that these situations are assessed based on your organization’s policies and in consultation with a qualified HR professional or legal advisor, especially if there are potential safety concerns or disciplinary implications.

From a general best-practice perspective, employers should ensure they have clear policies in place regarding impairment at work and follow consistent, documented procedures when concerns arise.

If you don’t currently have HR support, this may be a good time to consult with an HR professional to ensure you’re handling the situation appropriately and compliantly. You have submitted quite a few inquiries over the past couple of months and I want to remind you that I am not a licensed lawyer and this resource is not a suitable replacement for a Human Resources team at your job site.

Let me know if you’re looking for general resources or policy guidance—I’m happy to point you in the right direction.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Accrual during STD/LTD #98404

Yes, statutory vacation entitlement generally continues to accrue during LTD, and it is difficult to stop accrual of the minimum statutory vacation time while the employment relationship continues. When the employee eventually returns to work, the statutory vacation time technically still exists, but employment standards legislation usually allows some flexibility in scheduling vacation, since employers ultimately control when vacation is taken (subject to minimum standards). Practically, employers often work with the returning employee to schedule the accrued vacation over time, rather than requiring all of it immediately. However, the statutory minimum vacation generally cannot be waived by the employee, because employment standards minimums cannot be contracted out of. In other words, even if the employee prefers not to take it, the employer typically must still provide the minimum vacation entitlement.

[Haley O’Halloran]

in reply to: Overtime #98391

For hours below the statutory overtime threshold (e.g., 36–44 hours in Ontario), the legislation generally treats these as regular hours, so there is more flexibility. You can set a policy that these hours are banked as time off in lieu at 1:1 rather than paid out, provided employees agree to the arrangement and are ultimately compensated for the time worked. In this situation, you typically do not have to offer a choice between pay and time off—it can be structured as the employer’s policy—as long as it is clearly communicated and acknowledged by employees.

For statutory overtime hours, the rules are stricter. Provinces such as Ontario allow overtime to be taken as time off in lieu only if there is a written agreement with the employee, and the time must be credited at 1.5 hours for each overtime hour worked and used within the legislated timelines. The legislation generally requires the employee’s written agreement to bank overtime, but it does not necessarily require the employer to offer both options (pay or lieu) each time overtime occurs. An employer can have a policy that overtime is banked as lieu time, provided employees have agreed in writing.

If some employees decline to agree to banking overtime, then overtime generally must be paid out in wages instead. In other words, you can implement a policy that defaults to lieu time, but employees must voluntarily agree to it, and if someone does not agree, you would need to pay overtime instead. From a practical standpoint, many employers implement a written overtime/lieu-time agreement as part of the policy acknowledgment so that the arrangement applies consistently unless an employee opts out.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Overtime #98389

Yes — those hours still have to be compensated, but they do not necessarily have to be paid in wages if you and the employee agree to bank them as time off in lieu.

Employment standards legislation in Ontario, Manitoba, and Quebec requires employees to be paid for all hours worked, but it does not require that compensation be in cash if there is a lawful time-banking arrangement. The statutory rules around overtime banking (e.g., written agreement and 1.5× credit) apply specifically to hours that qualify as overtime under the legislation. For hours below the overtime threshold (such as 36–44 hours in Ontario when overtime starts at 44), the legislation generally treats them as regular hours, so employers have more flexibility in how they structure compensation, provided the employee ultimately receives equivalent paid time off or wages.

In practice, this means you could implement a policy where hours worked beyond your standard 35-hour work week but below the provincial overtime threshold are banked as time off at a 1:1 rate, provided employees agree to the arrangement. Many employers structure this as “flex time” or “time-in-lieu of extra hours” rather than overtime banking. The important distinction is that once statutory overtime thresholds are reached, the stricter rules apply (including 1.5× credit and written agreement requirements, as well as provincial timelines for using the banked overtime).

From a policy perspective, it is best to clearly separate the two categories:

1. Extra hours (36–OT threshold) → may be banked at 1:1 or paid as regular hours according to policy.

2. Statutory overtime hours → must follow provincial overtime rules, including 1.5× compensation and legislated timelines for taking lieu time.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Overtime #98386

Because your standard work week is 35 hours, but statutory overtime thresholds are higher (e.g., 44 hours in Ontario), employment standards legislation generally does not require any premium compensation for hours worked between 36 hours and the provincial overtime threshold. Those hours are simply considered regular hours under employment standards. As a result, providing time off in lieu at a 1:1 rate for hours between 36 and the overtime threshold is a policy choice rather than a legal requirement. The key requirement is that once an employee exceeds the provincial overtime threshold, the time must be compensated at 1.5× pay or 1.5 hours of paid time off in lieu for each overtime hour.

Regarding travel outside regular working hours, whether it must be counted as work time depends on the circumstances (for example, whether the employee is required to travel for work rather than commuting). If the travel counts as work under employment standards rules, it should be included when calculating weekly hours toward the overtime threshold. However, there is no requirement to provide a premium rate for those hours unless they push the employee past the applicable overtime threshold.

For time off in lieu of overtime, provincial employment standards generally require a written agreement with the employee, and the banked time must be credited at the appropriate rate (typically 1.5 hours for each overtime hour). Legislation also sets timelines for when this time must be used—for example, in Ontario it must generally be taken within three months of the week it was earned, or within up to 12 months if the employee agrees in writing. Because of these statutory limits, employers cannot replace them with their own shorter expiry rules, though they may set reasonable internal processes for scheduling and using lieu time within those legislated periods.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Accrual during STD/LTD #98385

Generally, when employees are on STD or LTD and not receiving wages, they may still accumulate vacation time (the entitlement to time off) because their employment relationship continues during a leave. However, they often do not accumulate vacation pay because vacation pay is typically calculated as a percentage of wages earned, and no wages are being earned during unpaid leave.

From a compliance perspective, employment standards legislation does not require that vacation accrued during a leave be used during the leave itself. Normally, vacation must be taken after it is earned and within the legislated timeframe (often within 10 months after the end of the vacation entitlement year in Ontario). Practically, this means vacation earned during STD/LTD is usually held until the employee returns to work, unless the employee requests to take it earlier and the employer agrees.

Employers can set reasonable policies around when vacation must be used, including requiring employees to take accrued vacation within a certain period after they return to work. However, you cannot eliminate or apply “use-it-or-lose-it” rules to the statutory minimum vacation entitlement. Such limits can only apply to additional vacation provided above employment standards minimums, and the policy must be clearly communicated and applied prospectively.

With respect to capping accrual during long LTD absences, this is generally permissible if the entitlement being limited is above the statutory minimum and the policy is clearly set out in advance. Many employers structure policies so that employees stop accruing additional vacation after a defined period (e.g., 12 months on LTD) while still respecting minimum statutory entitlements. As with benefits and RRSP contributions, the key considerations are ensuring the policy does not breach employment standards minimums and that it is clearly documented and communicated before it takes effect.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Employee on Gradual Return to Regular working hours #98375

During a gradual return-to-work (GRTW) period, employers generally cannot prevent employees from attending medically necessary appointments, particularly when they relate to the condition being accommodated. However, it is reasonable to ask that appointments be scheduled outside of working hours where possible, especially when the employee is already working a reduced schedule (e.g., six hours per day). If an appointment cannot reasonably be arranged outside of work hours, the employee should notify the employer in advance and the time should be accommodated. This approach supports the goal of the GRTW plan—rebuilding work capacity and consistency—while still allowing access to necessary medical care.

If appointments become frequent or significantly disrupt the work schedule, the employer may seek limited clarification, such as whether the appointments relate to the accommodated condition and whether they must occur during working hours. The focus should remain on operational planning and functional limitations, rather than questioning the legitimacy of the treatment or requiring unnecessary medical details.

Vacation or personal leave requests can still be made during a gradual return to work, but they do not need to be approved automatically. Employers may apply their normal leave approval processes and consider operational needs when reviewing such requests. Because a GRTW is intended to gradually rebuild routine and stamina, frequent time away from work may interrupt the progression toward regular hours and may require a reassessment of the return-to-work plan.

Overall, a balanced approach is to allow necessary medical appointments, ask that they be scheduled outside working hours where reasonably possible, and review vacation or personal leave requests using standard workplace policies. Employers should ensure that decisions remain neutral, well-documented, and focused on supporting both the employee’s accommodation needs and operational requirements.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Accrual during STD/LTD #98373

Thank you for the additional info. With that in mind:

Because your organization is provincially regulated (ON/MB, with employees in ON/MB/QC), the relevant framework is provincial employment standards legislation, not the Canada Labour Code. Short-term disability (STD) and long-term disability (LTD) benefits themselves are income replacement programs under an employer’s insurance plan, not statutory leaves. Employment standards obligations—such as continuing benefits—are triggered when an employee is on a job-protected leave under provincial legislation (for example, Ontario’s long-term illness leave). During a statutory leave, employers are generally required to maintain participation in benefit plans (such as health, dental, and pension) as if the employee were actively employed, unless the employee elects in writing not to continue their share of contributions.

If an employee is receiving STD or LTD but is not on a statutory protected leave, employment standards legislation typically does not require benefit continuation. However, many employers continue benefits during STD or LTD because the insurance plan requires it, or because the employer’s policy or past practice provides for it. As a result, STD often overlaps with a statutory medical leave, particularly early in an absence.

With respect to RRSP matching, employers are generally not required to continue contributions during STD/LTD if the plan is structured as a match based on employee payroll contributions and the employee has no earnings or contributions during the leave. During a statutory leave where pension participation must continue, contributions are typically required only to the extent they would normally occur. However, if the organization has consistently provided employer contributions during STD in the past, that practice could create expectations unless the policy is clearly updated and communicated prospectively.

Finally, it is important to distinguish between statutory leave and disability benefits. An employee may be receiving STD or LTD benefits while also being on a protected leave under employment standards legislation, but the two are legally separate. Once the statutory leave period ends, benefit continuation requirements under employment standards may also end, though the employer must still comply with human rights obligations to accommodate disability to the point of undue hardship.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Accrual during STD/LTD #98369

Employees who are on a statutory protected leave—such as medical leave—are entitled to continuation of employment and participation in benefit plans. During a protected leave, employers must continue contributions to pension, health, and disability benefit plans, unless the employee chooses in writing not to continue paying their portion. Therefore, if an employee’s absence due to illness or injury qualifies as CLC medical leave, employer-paid health and dental benefits generally must be maintained during that period.

Short-term disability (STD) and long-term disability (LTD) benefits, however, are income replacement programs and are not themselves statutory leaves. An employee receiving STD or LTD may also be on protected medical leave under the CLC, but the two are legally distinct. If the employee is on CLC medical leave, statutory benefit continuation obligations apply. If the protected leave period has ended but the employment relationship continues (for example, during extended LTD), statutory benefit continuation may no longer be required under the CLC—though human rights obligations related to disability accommodation remain relevant.

With respect to RRSP matching, the Canada Labour Code requires continuation of pension contributions during protected leave, but only to the extent that contributions would normally be made. If RRSP matching is structured as a voluntary contribution tied directly to employee earnings, and the employee has no earnings or is not contributing during STD/LTD, employers are generally not required to continue matching contributions unless a contract, policy, or past practice creates that obligation. However, consistently providing employer RRSP contributions during STD in the past may create expectations or potential contractual risk if the practice is changed without notice.

Finally, disability is a protected ground under the Canadian Human Rights Act. Even where statutory leave obligations end, employers must avoid discriminatory treatment and must accommodate employees to the point of undue hardship. Before discontinuing benefits or RRSP contributions during STD or LTD, employers should review plan documents, employment contracts, and past practice, ensure changes are applied prospectively with clear notice, and confirm whether the employee’s absence qualifies as protected medical leave under the Canada Labour Code.

-HRInsider Staff

[Haley O’Halloran]

in reply to: AI Generated Interview Notes #98364

Using AI-generated interview transcripts and summaries does not remove or reduce your legal obligations; once created and relied upon in hiring, they become “personal information” under federal privacy law. For federally regulated employers (and many private-sector organizations across Canada), the Personal Information Protection and Electronic Documents Act (PIPEDA) applies. If you used a Teams Co-Pilot transcript and summary as part of your assessment, both the full transcript and the AI summary form part of the candidate’s recruitment record. Under PIPEDA, organizations must retain personal information only as long as necessary to fulfill the purposes for which it was collected, but also long enough to allow individuals a reasonable opportunity to access it. In practice, if human rights legislation requires records to be kept for at least six months (to respond to discrimination complaints), many organizations retain recruitment records for one year to align with best practice and limitation risk. If the transcript informed the hiring decision, it is prudent to retain both the transcript and summary for at least the longest applicable retention period.

Under PIPEDA, candidates have a right to request access to their personal information in your custody or control. This would generally include interview notes, AI transcripts, and AI-generated summaries, subject to limited exceptions (for example, information protected by solicitor-client privilege or confidential commercial information). You may redact information about other candidates or internal comparative evaluations where appropriate, but you would typically need to provide the individual with access to their own transcript and summary within the statutory response timelines. Importantly, if the AI summary contains evaluative opinions about the candidate, those opinions are still considered their personal information.

There are additional compliance considerations when using AI tools. You must ensure meaningful consent—candidates should understand that AI transcription and summarization is being used, what information is collected, how it will be used, where it will be stored (including any cross-border data transfers), and how long it will be retained. Under PIPEDA’s accountability principle, your organization remains responsible for personal information processed by third-party service providers (such as Microsoft), so vendor contracts, data security safeguards, and clear internal policies are important. You should also ensure human oversight of AI summaries to mitigate accuracy issues or unintended bias that could raise human rights concerns under federal or provincial human rights legislation.

Finally, from a risk management perspective, treat AI-generated records the same as traditional interview notes: apply your documented retention schedule, restrict access on a need-to-know basis, and securely destroy records once the retention period expires. Ensure your recruitment and privacy policies expressly address the use of AI tools. Consistency, transparency, and documentation will be key if your organization needs to respond to a privacy access request, a complaint to the Office of the Privacy Commissioner of Canada, or a human rights allegation.

I hope this helps!
-HRInsider Staff

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