[Haley O’Halloran]

in reply to: Vacation Accrual during STD/LTD #98018

Great question! Short answer: you generally cannot reduce an employee’s vacation time entitlement while they are on STD or LTD if your policy already grants more than the statutory minimum.

Longer explanation

Because disability leave counts as continuous service, the employee’s vacation time entitlement during STD/LTD is determined by your established policy or contract, not just the statutory floor. If your policy says “all employees receive 3 weeks (15 days) of vacation,” that is the employee’s entitlement as long as the employment relationship continues—whether they are actively working or on an approved leave such as STD or LTD.

Employment standards legislation sets minimums, but it does not allow employers to temporarily roll employees back to the minimum during protected leaves unless your policy explicitly and lawfully allows for that distinction.

So, in your example:

If you start all staff at 3 weeks from day one, and an employee goes on STD or LTD before reaching five years of service, you are required to continue accruing the 15 days of vacation time, not reduce them to the statutory 10 days for the duration of the leave.

Reducing vacation entitlement only during disability leave would likely be viewed as:

-A unilateral reduction of a contractual benefit, and
-Potentially discriminatory, since STD/LTD is a protected leave tied to disability.

Important nuance

You can differentiate vacation pay from vacation time:

-Vacation time continues to accrue at the policy rate (15 days).
-Vacation pay only accrues on actual wages paid by the employer, unless your policy says otherwise.

When could a reduction be possible?

Only if:

-Your written policy or employment contract clearly states that enhanced vacation entitlements apply only while actively working, and
-That policy is applied consistently and does not conflict with human rights protections.

Even then, this is an area where regulators and arbitrators tend to scrutinize employer decisions closely.

Bottom line:
If your organization voluntarily provides 3 weeks from the start, STD or LTD does not allow you to “pause” that generosity and revert to statutory minimums. The safer and more compliant approach is to continue the 15-day vacation time accrual, while limiting vacation pay to actual earnings unless your policy provides otherwise.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Accrual during STD/LTD #98016

Across Ontario, Québec, and Manitoba, employment standards distinguish between vacation time (days off) and vacation pay (percentage of earnings). In all three jurisdictions, vacation time continues to accrue during periods of Short-Term Disability (STD) and Long-Term Disability (LTD) as long as the employment relationship continues. Disability leave generally counts as continuous service, meaning employees do not lose their entitlement to the statutory minimum number of vacation days while on disability.

By contrast, vacation pay is based on wages actually earned during the vacation entitlement or reference year. Where employees are receiving STD or LTD benefits paid by an insurance provider rather than salary from the employer, those benefit payments are not considered wages under employment standards legislation. As a result, statutory vacation pay does not typically accrue during STD or LTD, unless the employer’s contract or policy explicitly provides otherwise.

In Ontario, employees continue accruing their vacation time entitlement during both STD and LTD. If an employee has not yet reached five years of service, they accrue the two-week (10-day) minimum, and if they reach five years of service during leave, they become entitled to three weeks (15 days). Importantly, there is no statutory drop in entitlement when transitioning from STD to LTD; vacation time is tied to length of service, not the type or length of disability leave.

The same general approach applies in Québec and Manitoba: uninterrupted or continuous service during disability supports ongoing accrual of vacation time, while vacation pay is calculated only on actual earnings during the year. Employers may choose to provide more generous treatment through policy or contract, but from a minimum compliance perspective, continuing vacation time accrual without vacation pay during STD/LTD is consistent with employment standards in all three provinces.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Lay Off #98006

The organization is currently managing an employee absence related to a claimed mental health condition, which engages human rights, employment standards, and WSIB considerations. Although the employee’s medical leave has not been formally approved due to the absence of a Functional Abilities Form (FAF), the employee remains protected while medical and WSIB processes are ongoing. The timing of the leave—following a performance discussion—and the existence of a WSIB claim significantly increase legal risk if any employment action is taken prematurely.

At this stage, terminating or laying off the employee would carry a high risk of legal challenge. A termination could trigger allegations of disability discrimination, failure to accommodate, or WSIB reprisal, particularly given the unresolved medical status and active claim. A layoff is not a lower-risk alternative, as layoffs during medical leave are often viewed as constructive dismissal or discriminatory unless clearly permitted by contract and demonstrably unrelated to the employee’s health status.

The employer is entitled to request functional medical information to assess accommodation and return-to-work options, and the employee has a corresponding obligation to cooperate in this process. The absence of a FAF limits the employer’s ability to assess accommodation, but tribunals expect employers to make multiple good-faith attempts to obtain information, provide clear explanations for why it is needed, and allow reasonable time for compliance before drawing conclusions.

The lowest-risk approach at this time is to continue formally requesting medical information, maintain communication, document operational impacts and accommodation efforts, and seek clarity on the WSIB claim status. While outsourcing has addressed service and cost concerns, it should not be relied upon as justification for employment action during a protected leave. Employment decisions become more defensible only after sustained non-cooperation, clearer medical conclusions, or resolution of the WSIB claim.

Important note: This is NOT legal advice, and if you are moving forward with these matters, I highly suggest looking into legal counsel.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Mental Health Leave #98003

What you can reasonably expect from the employee right now

An employee who is hospitalized for mental health treatment is not required to provide frequent updates, but they do have an obligation to maintain basic communication about their employment status.

At this stage, it is reasonable for you to expect:

-Confirmation that the leave is ongoing
-An estimated duration of absence, if known
-Participation in the accommodation/RTW process when medically able

What you cannot require:

-Diagnosis
-Treatment details
-Daily or weekly updates while inpatient

Given that you have not heard from him in a week, it is appropriate to move to a more structured request.

Medical verification: when it becomes appropriate

You do not need to accept an indefinite leave based solely on verbal disclosure.

It is reasonable to request medical information when:

-The absence extends beyond a short period (which this has)
-The leave is ongoing and undefined
-You need information to manage accommodation, benefits, or operational impacts

At this point, you are well within your rights to request medical confirmation of ongoing disability-related leave, provided it is:

-Limited to functional abilities and prognosis
-Clearly tied to accommodation and RTW planning

Prognosis vs. diagnosis: what to ask for

You should not ask for diagnosis, but you can ask for:

-Whether the employee is currently medically unable to work
-Anticipated duration of absence (or “unknown / to be reassessed”)
-Functional limitations relevant to work
-Ability to participate in RTW planning
-Recommended restrictions or gradual RTW when appropriate
-Date for reassessment

This is exactly where a Mental Health Functional Abilities Form (FAF) is appropriate.

When is the “right time” to send the Mental Health FAF?

Now. But how you frame it matters.

You are not sending it because you doubt him — you are sending it because:

-The leave has extended
-Communication has paused
-You need medical guidance to meet your duty to accommodate

Even if he is inpatient, the form can:

-Be completed by a treating physician, psychiatrist, or hospital physician
-Indicate “unable to determine prognosis at this time,” which is acceptable

Waiting too long actually puts you at risk, because you cannot manage accommodation or benefits without medical guidance.

Best-practice approach

I recommend a single, supportive, clear email that:

-Acknowledges his situation
-Reaffirms support and confidentiality
-Explains why medical info is now needed
-Sets a reasonable deadline (e.g., 7–10 days)
-Attaches the Mental Health FAF
-Explains EI/ROE separately (don’t bundle pressure)

Move from “checking in” → “administrative necessity tied to accommodation.”

If he continues not to respond

If there is still no response after a reasonable deadline, you may:

-Follow up once more
-Send a registered letter if necessary

You should not discipline at this stage. You may issue the ROE based on available information, and remember to document everything.

Lack of response does not automatically equal abandonment, especially in a mental health context, but it does justify formalizing the process.

RTW obligations — when they actually begin

The employee’s duty to cooperate in RTW:

-Begins once medically able
-Is triggered by requests that are reasonable and accessible

You are not violating this duty by asking for a FAF now — you are setting the groundwork.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Unions and Employment Standards #97998

Across all provinces (and federally), employment standards legislation establishes minimum employment conditions (wages, hours, overtime, vacation, statutory holidays, termination/severance, etc.) that employers generally cannot contract out of or waive. Employers and unions can agree to terms that exceed these minimums, but not terms that provide lesser protection than the statutory minimum.

This is a central principle of Canadian labour law: minimum standards are public policy floors, and agreements below those floors are unenforceable.

British Columbia (BC) — Exception to the General Rule

BC’s approach is a bit different compared to most other provinces:

How BC Works

In BC, if a collective agreement contains provisions that meet or improve on certain parts of the Employment Standards Act (ESA), then those parts of the ESA do not apply in the unionized workplace on those topics.

For example, if the collective agreement covers hours of work/overtime, statutory holidays (except National Day for Truth and Reconciliation), annual vacation, seniority retention, layoff/recall, and termination/layoff and those terms are as good or better than the ESA, then the ESA will not apply to those areas — the collective agreement governs instead.

Employment Standards Branch therefore has no jurisdiction to enforce those terms — disputes go to the grievance/arbitration process in the collective agreement.

BC’s statute essentially allows the collective agreement to replace portions of the ESA where it meets or exceeds the statutory standard — a model sometimes referred to as “ESA superseded by collective agreement.”

This is the fact sheet your organization likely referenced.

Alberta — ESA Always Applies as Baseline

Alberta’s Employment Standards Code sets out minimum rights that apply to all employees, including unionized ones. A collective agreement or employment contract cannot lawfully provide terms that are less than these minimum standards — any such provision is void as against public policy.

Even if a collective agreement is silent on a specific standard (like overtime, holidays, vacations, termination, etc.), the Code still applies. If a collective agreement doesn’t cover a subject (or is silent), the Code still governs that subject.

Alberta’s Employment Standards Code is specifically designed so that the Code floor always applies — you can’t “contract out” of ESA rights via a collective agreement.

Ontario — ESA Always a Floor

Ontario generally follows a similar model to Alberta:

Ontario’s Employment Standards Act (ESA) sets minimum employment conditions that must be met by employers and cannot be overridden by contract or collective agreement to provide lesser protection.

Any contractual term (individual or collective) that offers less than the ESA minimum is unenforceable, but parties remain free to negotiate terms that exceed the minimums.

This means an employee is always entitled to at least ESA protections regardless of agreement language.

Québec

Québec’s LSA (Labour Standards Act) imposes statutory minimums that cannot be contracted out of. Like Alberta and Ontario, any agreement that provides less than required minimums is generally void. (This principle is implicit in how Québec law applies employment standards.)

Other Provinces & Territories

While we haven’t pulled specific provisions for every province, the general pattern outside BC is:

-Minimum employment standards apply to all employees.
-Collective agreements cannot reduce these minimum rights — only improve them.

Where a collective agreement does not cover a topic, the employment standards legislation still applies. Any term in a collective agreement less favourable than the statute is void.

Why BC Is Different

BC’s ESA is somewhat unique in that it expressly states that where the collective agreement provides equal or better terms, the statutory provisions are replaced by or displace the corresponding statutory provisions rather than operating in addition to them.

Alberta, Ontario, Québec, and most other provinces do not have an equivalent “replace” mechanism in their standards legislation — they simply say the standards are minimum entitlements, period.

Takeaways for HR/Labour Relations Teams

Outside BC:

Collective agreements must meet or exceed statutory minimum standards. If you see a clause that purports to offer less than statutory minimums, it’s likely unenforceable. The ESA applies in addition to the collective agreement if the agreement is silent.

In BC:

Review collective agreements carefully to see which ESA sections have been displaced. Understand that disputes on displaced topics must go through the grievance/arbitration process rather than the ESA branch.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Internal Organization Health Spending Accounts #97989

Can HR/Finance request invoices/receipts for an internally administered HSA?

Yes—it’s generally appropriate for an employer administering its own HSA/PHSP-style reimbursement plan to require receipts/invoices to confirm the expense is eligible under the plan and properly supported for tax purposes.

Two key guardrails:

CRA/tax substantiation: PHSP/HSA reimbursements are typically treated as non-taxable when paid under a qualifying private health services plan and for eligible medical expenses, and the employer should be able to support what was reimbursed. CRA guidance frames this in the context of medical expenses paid under a PHSP.

Alberta privacy (PIPA): Alberta’s Personal Information Protection Act (PIPA) allows collection/use/disclosure of personal information only for purposes a reasonable person would consider appropriate. The Government of Alberta’s PIPA business guide also emphasizes notifying individuals of the purpose for collection (before or at the time of collection).

Your proposed “minimum fields” approach is on the right track. Limiting verification to provider name, date of service, service/expense type, and amount aligns with privacy data minimization and “reasonable purpose” thinking under PIPA.

That said, “service provided” can still be highly sensitive (e.g., psychotherapy, fertility treatment). Even without diagnoses, it can reveal intimate health information—so treat it as sensitive personal information and tighten handling accordingly.

How to make the verification process ethical + privacy-compliant

If you’re self-administering, your biggest risk is internal over-collection and over-access. Consider these controls:

Write it into the plan + claim form: State why receipts are required, what fields are needed, and that employees should black out diagnoses / clinical notes and any unnecessary details. (You may still need enough description to confirm eligibility.)

Need-to-know access: Restrict review to a small, designated role (often one person in Finance/benefits admin), not general HR. Keep managers out entirely.

Separate storage: Store HSA receipts separately from the personnel file, with stricter permissions and audit logs.

Retention + disposal: Keep only as long as needed for plan administration and any tax recordkeeping needs; then securely destroy.

Escalation path: If a receipt looks questionable, escalate to a defined process (benefits admin → HR/Legal) rather than broad sharing.

If you can, use a third party: Even when the employer funds the HSA, outsourcing adjudication can significantly reduce internal exposure to sensitive information (often the cleanest privacy posture).

These steps map well to PIPA’s “reasonable purpose” standard and the requirement to be transparent about collection purposes.

If an invoice is falsified, can that be cause for termination?

Potentially yes, but it’s very fact-dependent and the bar for “just cause” is high.

Canadian courts apply a contextual approach to dishonesty: not every lie or irregularity equals just cause; the question is whether the misconduct fatally damages the employment relationship (trust).

Falsifying receipts to obtain benefits is often treated as serious dishonesty/fraud, and courts have upheld cause in cases involving fabricated benefits/claims—especially where there’s deception during the investigation.

Alberta-focused commentary consistently stresses employers carry the onus and cause is “capital punishment” territory—so process and proportionality matter.

What helps make “cause” more defensible (if you go that route)

A clear written policy that claims must be truthful/accurate and that fraud may lead to discipline up to termination.

A fair investigation: give the employee a chance to explain (mistake vs. intent), review documents, keep good notes, and avoid rushing.

Proportionality: amount involved, role/trust level, prior discipline, whether it’s a one-off error, whether the employee admitted promptly, whether they tried to mislead you afterward.

Consider whether you can prove intentional falsification rather than a misunderstanding about eligibility.

If intent is uncertain, many employers choose to discipline and/or terminate without cause (with appropriate notice/pay) to reduce wrongful dismissal risk.

One more nuance: “internal HSA” design risk

If you’re running the HSA internally, make sure the plan is documented and administered consistently as a PHSP-style arrangement; CRA expects the plan terms to be clear and followed in practice.

I hope this helps.
-HRInsider Staff

[Haley O’Halloran]

in reply to: HR Process – Workplace Investigations #97977

Yes — your understanding aligns with typical practice in British Columbia, with some important context and nuance:

In BC, employers are expected to share a written outcome summary with both the complainant and the respondent after a workplace investigation (especially for harassment, bullying, discrimination, or other serious misconduct). This summary typically:
-Communicates whether the allegations were substantiated
-Outlines corrective or remedial actions (if any)
-Provides enough information for both parties to understand the outcome without exposing private details about other individuals or evidence sources.

This reflects best practice rather than a specific statutory requirement — BC’s system is less prescriptive than, for example, Ontario’s explicitly mandated summary-sharing rules. BC’s approach is enforced through WorkSafeBC’s bullying/harassment policies and general obligations under the Workers Compensation Act and related OHS policies to investigate complaints promptly, fairly, and confidentially.

Confidentiality of the Full Report
The full investigation report (with detailed evidence, interview notes, witness statements, and investigator analysis) is generally treated as confidential internal documentation. Employers typically do not automatically provide the full report to the complainant or respondent because:
-It often includes personal information about others (witnesses, third parties).
-BC employers must balance transparency with privacy obligations under common law and privacy principles.
-Releasing full reports can risk damaging confidentiality and discourage candid witness participation.

Rather, employers usually:
-Retain the full report internally
-Provide redacted versions only if legally required (e.g., in litigation, tribunal proceedings, or as ordered by a court/regulator)
-Share pertinent parts of the report with external counsel when necessary for legal defense.

Legal/Privacy Considerations
BC courts have recognized the privacy interests of witnesses and third parties in workplace investigation reports and may restrict disclosure in civil proceedings where privacy outweighs probative value.
Employers are also expected to protect confidential information and not disclose details that are not necessary for the parties’ understanding of outcomes.

When Full Reports May Be Shared
There are limited circumstances where a full or more detailed report may be disclosed:
Litigation or tribunal proceedings — a court or adjudicator may order production after balancing privacy and relevance.
Union/collective agreement rights — where the collective agreement entitles the union or the employee to more detailed documentation.
Regulatory requests — if a regulator (WorkSafeBC, BC Human Rights Tribunal) specifically requires it.

I hope that helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Frustration of Contract #97975

No — receiving another medical note extending the leave on or after Feb. 15 would not automatically amount to frustration of contract. However, you are approaching the zone where frustration may become arguable, particularly given:
-the length of absence (≈12 months),
-the seniority and operational impact of the role,
-the repeated pattern of return-to-work dates not materializing, and
-limited communication from the employee.

That said, terminating on frustration without very careful steps would carry legal risk, especially if the employee now has medical evidence suggesting recovery.

Key legal principles you need to know
1. Frustration of contract is a high threshold

In Canada, frustration due to illness generally requires that:
-The employee is unable to return to work in the reasonably foreseeable future, and
-There is no reasonable prospect of return, even with accommodation.

Courts look at:
-Total length of absence
-Medical prognosis (not just dates, but likelihood)
-Nature of the role (critical vs replaceable)
-Size of the employer and operational impact
-Past patterns of leave and extensions
-Whether the employer acted reasonably and patiently

A new medical note stating “full recovery expected by Feb. 15” works against frustration, not in your favour.

2. A single missed return-to-work date is not enough

Even if:
-You send a letter confirming Feb. 15 as the expected return date, and
-The employee later submits another note extending the leave,

That alone does not establish frustration, especially if the new note still suggests recovery within a defined timeframe (e.g., reassessment in 12–14 weeks). Courts are very cautious about employers who act immediately after an updated medical note.

3. The pattern does matter — but you must document it properly

What does strengthen your position over time is:
-Repeated projected return dates that are missed
-Vague or shifting medical information
-Lack of engagement or cooperation from the employee
-Increasing hardship to the organization

However, to rely on this, you must show that you:
-Requested clear, functional medical information
-Communicated expectations
-Considered accommodation and phased return
-Gave the employee opportunities to engage

If you jump straight to frustration without these steps, a court may see it as premature.

What you should do now (recommended approach)
Note: this does not count as legal advice. I am not a lawyer, and before proceeding, you should consider legal counsel.
1. Yes — send a Return-to-Work Expectation Letter

This is reasonable and appropriate.

The letter should:
-Acknowledge receipt of the doctor’s note
-Confirm Feb. 15, 2026 as the anticipated return date
-Ask the employee to confirm availability
-Request updated functional abilities information (not diagnosis)
-Flag that the role is operationally critical
-State that if the return date changes, you require timely medical clarification

Do not frame it as an ultimatum or threat of termination.

2. If another note arrives extending the leave

At that point, do not immediately terminate.

Instead:
-Review the new note carefully:
-Does it say unable to work at all?
-Is there a prognosis or just “reassess later”?
-Does it address ability to perform essential duties?

If vague, request clarification. Ask specifically:
-Is the employee capable of any work?
-Is a graduated return possible?
-Is there a realistic return window?

This step is critical to protecting yourself.

3. When frustration becomes more defensible

Frustration becomes more realistic if:
-The employee cannot provide a reliable return timeframe
-Medical evidence becomes indefinite or speculative
-Accommodations are not feasible
-The absence continues well beyond 12 months with no certainty
-The business impact is demonstrably severe

Even then, legal advice before termination is strongly recommended.

Important human rights overlay

Across Canada:
Illness = protected disability

You have a duty to accommodate to the point of undue hardship. For a 31-employee organization, undue hardship can occur sooner than in large employers — but you must show:
-Operational strain
-Inability to backfill
-Cost
-Impact on leadership and compliance

Document this carefully.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Abuse protocol #97974

Hi! This depends on what you mean by “abuse” – this could mean workplace violence or sexual harassment or discrimination and bullying. There are many resources if you search on this site or our sister site, OHSInsider, such as:

-All of these resources regarding workplace violence
–Navigating Workplace Harassment
-Our Alberta Jurisdiction page, where you can find everything that concerns your specific rules and regulations
–Harassment Prevention Game Plan
-and our SafetyNow eLearning site, where you can find more content and training modules pertaining to any topic

Click around and find what you need!
-HRInsider Staff

[Haley O’Halloran]

in reply to: safe driving at work #97973

Hi! Here are some resources to help aid in your training of supervisors for safe employee driving:

OHS Transportation/Traffic/Driving Resources
Employee Use of Company Vehicles Policy
Car Allowance Policy
Travel Policy
Company Vehicle Use Policy
Automobile Use by Employees
SafetyNow eLearning, where we offer even more content and courses on safe driving on and off the work site

-HRInsider Staff

[Haley O’Halloran]

in reply to: Employee on Accommodation on full pay, working limited hours #97965

Happy New Year! Below I’ve provided some general HR guidance, but this should not be mistaken for legal advice.

What Ontario Says
a) Duty to Accommodate (Human Rights Code)

You must accommodate disability-related limitations to the point of undue hardship. Accommodation is about work performed, not income replacement. Paying full salary for reduced hours is not required under the Code unless it is part of a benefit plan or collective agreement. Continuing full pay has been a discretionary, goodwill measure, not a legal obligation.

b) Employment Standards Act (ESA)

ESA does not require you to maintain full salary when hours are reduced due to accommodation. You must pay at least minimum wage for hours worked and comply with overtime rules (which won’t apply here).

c) Constructive Dismissal Risk

A reduction in pay can trigger constructive dismissal unless:
-It is directly tied to medically supported accommodation; and
-It is implemented carefully, transparently, and with notice.

Courts and tribunals generally accept reduced pay when it flows from reduced hours due to medical restrictions, especially when supported by ongoing FAFs.

Why Your Position Is Reasonable

You are on solid footing because:
-The FAFs consistently limit him to 6 hours/day, 5 days/week
-There has been no medical progression toward increased hours
-You have already provided months of enhanced accommodation (full pay since April 2025)
-You are not withdrawing accommodation — only aligning pay with hours worked

This is not a discipline or performance issue; it is a sustainability and equity issue.

Best Practice Approach
Step 1: Confirm Medical Status

Before making the change:
-Ensure the most recent FAF confirms the same hour limitation
-Consider asking one clarifying question on the FAF: “Is there a foreseeable timeline for increased hours?”
This demonstrates ongoing procedural accommodation.

Step 2: Frame the Change Correctly

The messaging is critical. The change should be framed as a transition from a temporary goodwill measure, not a withdrawal of accommodation and not related to performance.

Avoid language like:
“We can no longer afford this”
“You must return to full hours or lose pay”

Use language like:
“Aligning compensation with medically approved hours”
“Continuing accommodation within sustainable parameters”

Step 3: Provide Reasonable Notice

There is no fixed legal rule, but best practice is:
-2–4 weeks’ written notice
-Longer notice (e.g., 4 weeks) further reduces risk given his long service

Notice should include:
-Effective date of the change
-Confirmation that accommodation remains in place
-Confirmation that benefits remain unchanged (if applicable)

Final Step: Document the Rationale

Your internal file should clearly show:
-Ongoing medical support for reduced hours
-Duration of full-pay accommodation
-Business rationale (sustainability, consistency, fairness)
-Continued willingness to revisit hours if medical status changes

This documentation is critical if challenged.

How to Communicate the Change (Sample Structure)

You may wish to communicate this in a meeting followed by a letter.

Key points to include:
-Acknowledge his service and contributions
-Confirm continued accommodation at 6 hours/day
-Clarify that full pay was temporary and discretionary
-Explain that compensation will align with hours worked
-Reconfirm openness to revisiting hours if medical status changes

Example language:

“Since April 2025, we have continued your full salary while accommodating your reduced hours as a supportive, temporary measure. Based on the ongoing medical information confirming a 6-hour workday, we will be transitioning to compensation based on actual hours worked, effective [date].

Your accommodation remains fully in place, and we will continue to review any updated medical information should your functional abilities change.”

Additional Risk-Reduction Measures (Optional but Helpful)

Confirm benefits continuity (very important for optics and morale). Offer to review:
-Sick leave
-Disability benefits (if applicable)
-Invite the employee to raise concerns or ask questions
-Avoid unilateral tone — emphasize collaboration

What Not to Do

-Do not require increased hours without medical clearance
-Do not characterize this as a “demotion”
-Do not suggest the employee should resign or go on leave
-Do not stop the accommodation itself

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination Pay #97956

ESA basics: vacation pay when it’s paid at 4% each pay

Because the employee receives vacation pay on each paycheque (4%), the ESA treats vacation pay as already paid as it is earned.
That means on termination, there is no accrued but unpaid vacation for the notice period unless:
-vacation pay was not applied correctly, or
-there is unpaid vacation from prior earnings.

Vacation pay **must still be paid on:
-wages earned up to the termination date, and
-ESA statutory notice pay**, because statutory notice is considered “wages.”

So for the 2 weeks ESA notice, vacation pay does apply (4% of the statutory notice pay).

Enhanced / gratuitous 4 weeks pay — does vacation pay apply?

This is where employers often get tripped up.

Key rule:

Vacation pay is only required on “wages” under the ESA. A gratuitous or ex gratia payment is not ESA wages if it is clearly identified as such.

Practical outcome:

ESA notice (2 weeks):
Vacation pay must be included

Enhanced 4 weeks (gratuitous portion):
Vacation pay is NOT required, if
-the payment is clearly described as ex gratia / gratuitous / without prejudice, and
-it is not characterized as notice, severance, or wages

Many employers intentionally exclude vacation pay from the enhanced portion to avoid unintentionally increasing ESA entitlements.

How to word this clearly in the termination letter

The goal is to:
-Meet ESA requirements
-Clearly separate statutory entitlements from the enhanced payment
-Avoid accidentally creating ongoing obligations

Sample wording

Termination and Statutory Entitlements

Your employment with [Company Name] will end effective [date].

In accordance with the applicable Employment Standards legislation, you will receive:

Two (2) weeks’ pay in lieu of notice, and

Vacation pay at four percent (4%) on all ESA-required earnings, including statutory notice pay, as vacation pay has been paid on each paycheque during your employment.

Enhanced / Gratuitous Payment

In addition to your minimum statutory entitlements, [Company Name] is offering you an ex gratia payment equivalent to four (4) additional weeks of base pay, less applicable statutory deductions.

This payment is gratuitous, is not wages, and is not subject to vacation pay, and is provided without prejudice and without admission of liability.

Final Pay Clarification

Your final pay will include all outstanding wages earned up to your last day of employment, statutory notice pay, applicable vacation pay, and the ex gratia payment described above.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Suspension Letter Template #97954

Hi! We have a suspension letter template for all jurisdictions available on our sister site, OHSInsider, that you can find here.

-HRInsider Staff

[Haley O’Halloran]

in reply to: HR Process – Workplace Investigations #97950

While legislation and policies vary slightly, regulators and courts expect a procedurally fair, reasonable, and timely process. From HR’s perspective, the process generally unfolds as follows:

Step 1: Receipt of Complaint
Complaint may be written or verbal.

HR documents:
-Who is involved
-Nature of allegations
-Date(s), location(s)
-Desired outcome (if stated)
-Immediate assessment of risk (e.g., violence, harassment, reprisal).

Step 2: Initial Assessment / Triage
HR determines:
-Does this fall under policy (harassment, discrimination, misconduct)?
-Is a formal investigation required, or could informal resolution be appropriate?
-Are interim measures required?
(e.g., schedule changes, temporary reporting changes — not disciplinary)

Step 3: Decision to Proceed with a Formal Investigation
-Confirm investigator (internal or external).
-Define scope and allegations.
-Create an investigation plan.

Step 4: Notify the Respondent (Accused)

This should occur before the respondent interview. Best practice is to notify them:
-That a complaint has been made
-The general nature of the allegations
-That an investigation is underway
-That they will have an opportunity to respond
-Expectations around confidentiality and non-retaliation

This notice does not need to include every detail, but must be sufficient for the respondent to understand the case against them and prepare a response.

Step 5: Interview the Complainant
-Clarify allegations.
-Gather details, witnesses, documents.
-Explain investigation process and expectations.

Step 6: Interview the Respondent
-Provide full opportunity to respond.
-Ask open-ended questions.
-Allow them to identify witnesses and evidence.
-Maintain neutrality.

Step 7: Interview Witnesses
Make sure interviews are based on information gathered and maintain confidentiality to the fullest and most necessary extent possible.

Step 8: Evidence Review and Findings
Assess credibility using accepted factors (consistency, plausibility, corroboration). Make findings on a balance of probabilities.

Step 9: Investigation Report

This typically includes:
-Allegations
-Methodology
-Evidence summary
-Findings
-Conclusion (policy breach or not)

Step 10: Outcome & Communication
HR or leadership determines corrective action (if any).

Communicate outcomes:
Complainant: whether allegations were substantiated (limited detail)
Respondent: findings and consequences (if applicable)

Is HR Required to Notify the Accused Before Meeting With Them?
Yes — as a matter of procedural fairness and best practice.

While most Canadian statutes do not prescribe exact sequencing, natural justice principles require that the respondent:
-Is informed of the allegations before being asked to respond
-Has a meaningful opportunity to prepare
-Is not ambushed or misled

Calling someone into a meeting without prior notice of allegations creates risk, particularly if:
-The matter could lead to discipline
-Notes are taken
-The meeting is later characterized as an “investigation interview”

Written vs. Verbal Notice

Written notice is strongly recommended, especially for:
-Harassment
-Discrimination
-Serious misconduct

Verbal notice may be acceptable for lower-risk matters, but should always be documented afterward.

If HR Failed to Notify First — How to Rectify (While Investigation Is Ongoing)

This is recoverable if addressed promptly and transparently.

Immediate Corrective Steps
1. Pause the Investigation Process
Do not rely on statements obtained under flawed process as final evidence.

2. Issue a Formal Written Notice to the Respondent
Include:
-Acknowledgement that a complaint has been made
-Clear outline of allegations (dates, nature, policy area)
-Confirmation that no conclusions have been reached
-Explanation of their right to respond fully
-Confidentiality and anti-reprisal reminder

You do not need to admit fault, but you should clarify the process.

3. Re-Interview the Respondent
Clearly state:
“This meeting is part of the formal investigation. You are being given a full opportunity to respond to the allegations.”

Allow them to:
-Amend or clarify prior statements
-Provide new information
-Identify witnesses or evidence

If notes were taken previously:
-Treat the earlier meeting as informational, not determinative.
-Document that procedural fairness has now been restored.

4. Document the Correction

Internally note:
-What occurred
-How fairness was restored
-That the investigation remains open and unbiased

This documentation is critical if:
-The matter is challenged
-There is a grievance, complaint to a regulator, or legal review

4. Key HR Risk Considerations

Failing to notify the respondent first can expose the organization to:
-Allegations of bias or predetermined outcome
-Breach of procedural fairness
-Findings being overturned by tribunals or courts
-Damaged credibility of the investigation
Rectifying the issue before conclusions are reached significantly reduces risk.

5. Do’s and Don’ts

Do:
Notify respondents before interviewing them
Provide sufficient detail to allow response
Use written notice
Correct process errors immediately

Avoid:
Surprise investigation meetings
Treating early conversations as “off the record”
Relying on flawed interviews without remediation

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: alberta maternity leave #97948

This is a very common point of confusion, so you’re not alone – you were actually almost there already.

The key issue

Alberta Employment Standards (ESC) and EI (federal) use different concepts and timeframes. ESC is about job-protected leave, while EI is about income replacement.

Why Alberta ESC says “no more than 16 weeks”

Under the Alberta Employment Standards Code, leave is split into two distinct types:

1. Maternity Leave (birth parent only)
-Up to 16 weeks
-Can start as early as 13 weeks before the estimated due date
-Ends no later than 16 weeks after birth
-This is specifically tied to pregnancy and recovery from childbirth. That’s why the Code says “not more than 16 weeks” — it is only maternity leave, not the full time away from work.

2. Parental Leave (after maternity leave)

After maternity leave ends, the employee may take parental leave:
-Up to 62 weeks (if maternity leave is taken)
-Up to 63 weeks (if maternity leave is not taken)
-Must begin immediately after maternity leave, unless the employer agrees otherwise

So in practice for a birth parent:

16 weeks maternity leave
up to 62 weeks parental leave
= Up to 78 weeks of job-protected leave

Where the 12-month vs 18-month leave comes from

This part is not employment standards — it’s EI.

EI options:
Standard EI
-15 weeks maternity EI
-35 weeks parental EI
≈ 12 months paid

Extended EI
-15 weeks maternity EI
-61 weeks parental EI
≈ 18 months paid (at a lower weekly rate)

EI does not change Alberta job-protected leave entitlements — it only affects how long benefits are paid and at what rate.

Why your SOP wording felt confusing

Your sentence stops at maternity leave, which makes it sound like the employee can only be off for 16 weeks: “entitled to a period of not more than 16 weeks…”

That’s technically correct but incomplete without the parental leave piece.

Suggested SOP wording

Under the Alberta Employment Standards Code, eligible employees are entitled to maternity and parental leave as follows:
• Maternity Leave: Up to 16 weeks for a birth parent, which may begin at any time during the 13 weeks immediately before the estimated date of delivery.
• Parental Leave: Following maternity leave, an employee is entitled to up to 62 weeks of parental leave, for a combined total of up to 78 weeks of job-protected leave.

Employees may choose to receive EI benefits under either the standard (approximately 12 months) or extended (approximately 18 months) EI option. EI benefit duration does not affect job-protected leave entitlements under Alberta Employment Standards.

Bottom line
-16 weeks = pregnancy/recovery (maternity leave)
-Parental leave is what extends the time off
-12 or 18 months = EI benefit choice, not ESC limits

I hope this helps!
-HRInsider Staff

[Author]

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