[Haley O’Halloran]

in reply to: Fit for duty #98182

Yes. An employer has the right to request updated fit-for-duty information when circumstances change. Even though the employee initially provided a return-to-work note, the later disclosure of ongoing treatments and continued absences means the original confirmation may no longer reflect their current ability to reliably perform the essential duties of the role.

You can ask the attending physician for functional information, not a diagnosis. This includes whether the employee can work full duties consistently, whether restrictions or accommodations are needed, how long limitations may last, and whether there is a predictable pattern to absences or treatment needs—especially in a specialized teaching role with limited coverage.

The “serious family situation” requires more care. Family stress alone is not automatically a medical issue, so you generally should not request a medical fit-for-duty note unless the employee is claiming a medical impairment or requesting accommodation on that basis. However, family status obligations can trigger accommodation duties, and you may request reasonable documentation confirming the need for accommodation without asking for private details.

A supportive and defensible approach is to meet with the employee, clarify whether accommodation is being requested for medical reasons, family responsibilities, or both, and request updated documentation accordingly. At the same time, you may set clear expectations about attendance and operational needs, since accommodation is required only to the point of undue hardship and does not require the employer to absorb ongoing unpredictability that jeopardizes program delivery.

-HRInsider Staff

[Haley O’Halloran]

in reply to: PIP’s and Accommodation #98167

A Functional Abilities Form can be an appropriate next step, but it should be tailored to the situation. In accommodation cases involving neurodevelopmental conditions like Asperger’s syndrome (now known as Autism Spectrum Disorder), the focus should be on functional restrictions and workplace needs rather than a diagnosis or primarily physical limitations. If your current internal form is heavily geared toward physical capabilities, it may not capture the relevant information. You may want to provide a more general functional assessment form or a letter template that asks the employee’s healthcare provider about work-related impacts (e.g., pace, consistency, sensory/environmental factors, need for structured instructions) and what accommodations may support performance.

With respect to undue hardship, the threshold is quite high. In most Canadian jurisdictions, additional cost alone does not automatically meet undue hardship unless it is significant enough to threaten the viability of the business or substantially impact operations. The fact that you may need to hire another installer could be a relevant factor, but you would be expected to explore other accommodation options first (modified supervision, adjusted scheduling, task reallocation, assistive supports, clearer work processes, etc.). Undue hardship requires objective evidence, not speculation, and must consider whether accommodation can be implemented without fundamentally compromising the business or safety.

Finally, it is important to continue the accommodation process in good faith alongside the PIP. Once a disability is disclosed, performance management must account for the duty to accommodate to the point of undue hardship. Since the employee has demonstrated she can meet targets at times, this may suggest accommodations could help with consistency rather than eliminating expectations altogether. Document all steps taken, seek only functional information, and consider obtaining legal or HR advice before making termination decisions, as disability-related performance matters carry a higher legal risk.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Remote/ Hybrid Work Research #98164

We predominantly provide compliance-related content, so I can share some policies and guides with you, but we wouldn’t have anything specific to trends in non-profits or sports organizations.

Here are some resources, but best of luck in your research and I hope the presentation goes well!
Hybrid Work is Here To Stay
Remote & Flexible Work Tools
Hybrid Work Strategy for Canada

-HRInsider Staff

[Haley O’Halloran]

in reply to: No-show to work after non-work related injury #98162

Based on the information provided, you appear to be on solid footing to proceed with termination for job abandonment, provided your final communication clearly demonstrates procedural fairness. While the employee initially advised of a non-work-related injury, the primary issue is the ongoing lack of communication, failure to attend scheduled shifts, and failure to provide any medical or functional abilities information despite repeated employer outreach.

Your final notice to the employee should clearly outline the concerns in neutral terms, including the dates of missed shifts, unanswered contact attempts, and the absence of medical documentation. It is important to acknowledge the employee’s earlier reference to an injury and confirm that the organization remains willing to consider accommodation should appropriate medical information be provided. This helps demonstrate that the decision is not related to the injury itself, but rather to the employee’s failure to maintain communication.

The communication should include a specific deadline for the employee to respond and clearly state that failure to do so will result in termination due to job abandonment. It should also specify what is required to avoid termination (e.g., contacting the employer and/or providing a medical update) and list acceptable methods of response such as phone or email. Sending the notice through more than one method, where possible, is considered best practice.

Provided these steps are taken and your documentation is complete, the organization is acting reasonably and in line with Canadian non-union HR best practices. Continued attempts to contact the employee beyond a clear final deadline are not required where there has been no response and a break in payroll has occurred.

Important note: This does not count as legal advice, and I always recommend contacting legal counsel to remain fully compliant and know your rights as an employer.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Workplace Accommodation – Employee not providing medical documentation #98159

In Ontario, the duty to accommodate is a shared process. While the employer must explore and implement reasonable accommodations, the employee also has a duty to cooperate, which includes providing timely and appropriate medical information (such as an updated Functional Abilities Form) when their medical status changes. Since you’ve learned the employee had surgery in January, it is reasonable and appropriate to request an updated FAF because their functional restrictions may have changed and you need accurate information to maintain a safe and appropriate accommodation.

You are entitled to request updated information about functional limitations and abilities, including restrictions, what tasks can/cannot be performed, expected duration, and whether limitations are temporary or permanent. You should avoid requesting diagnosis or treatment details. Given the employee’s pattern of delayed cooperation, it is appropriate to move from informal reminders to a clear written expectation with a firm deadline for submission (e.g., within 7 calendar days), including a request that the employee notify you immediately if there are delays.

Your communication should also include that, without updated medical information, the organization may not be able to continue, adjust, or verify the current accommodation. You can keep this non-disciplinary in tone while still making expectations clear. To remove barriers and show good faith, offer to send the FAF directly to the clinician, accept an interim medical note while the FAF is pending, and provide job demands information if needed.

To support the goal of returning the employee to full duties, consider shifting the focus from ongoing accommodation to a structured return-to-work plan with milestones and regular review dates (every 2–4 weeks). If the information continues to be vague, inconsistent, or not updated despite significant medical events, it may also be appropriate (with careful consideration and possible legal review) to explore whether an independent medical examination is justified.

Finally, ensure your documentation is thorough: track all requests for updated FAFs, deadlines provided, employee commitments, missed deadlines, and the impact on your ability to provide safe accommodation. This will strengthen your position if the matter escalates into a dispute or requires more formal action due to continued failure to cooperate in the accommodation process.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Workplace Harassment Investigation Form #98104

Workplace Harassment Investigation Checklist
Let me know if you need any other tools or templates, we have a lot of content on harassment in the workplace.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Rehire #98097

Hi! Do you have a specific question pertaining to this example?

-HRInsider Staff

[Haley O’Halloran]

in reply to: Alberta – Long term illness leave #98092

“Within a reasonable amount of time” is intentionally flexible in LTI (long-term illness or injury) leave provisions, because legislators recognize that medical circumstances don’t unfold on a fixed timeline. In general, an employee’s obligation to provide a medical certificate is balanced against the realities of accessing health care, the severity of the condition, and the employee’s capacity to comply. Tribunals and courts have consistently interpreted “reasonable” to mean as soon as practicable in the circumstances, rather than immediately or within a rigid number of days.

Supportive guidance from employment standards decisions and arbitral case law shows that delays are more likely to be considered reasonable when they are connected to factors outside the employee’s control—such as difficulty securing a timely medical appointment, hospitalization, recovery from surgery, or cognitive or psychological impairment. Conversely, delays may be considered unreasonable where an employee is medically able, has been clearly informed of the requirement, has access to a health-care provider, and still fails to provide documentation without explanation or communication. Employers are generally expected to assess reasonableness case-by-case, rather than applying blanket timelines.

Importantly, decision-makers tend to look at conduct, not just elapsed time. An employee who communicates regularly, explains delays, or provides interim information is far less likely to be found unreasonable—even if the certificate itself arrives weeks later. By contrast, silence or refusal to cooperate, especially after reminders, can weigh against the employee. Many rulings emphasize that employers should request documentation proportionately and allow extensions where circumstances justify them.

As a best practice, employers can reduce ambiguity by clearly documenting requests, setting indicative (but flexible) timeframes (e.g., “within 7–14 days where possible”), and inviting employees to advise if they are unable to meet them. This approach aligns with human rights and employment standards principles and is more defensible than treating any fixed delay as automatically unreasonable.

I hope this helps!
-HRInsider Staff

[Haley O’Halloran]

in reply to: Termination Contractually Req – On Medical Leave #98072

This situation sits at the intersection of ESA medical leave protections, unionized employment, and mandatory safety disqualification under a third-party Safety Management Plan (SMP). In British Columbia, although collective agreements generally govern unionized employees, ESA minimum standards still apply where a collective agreement is silent or provides lesser protection, including job-protected medical leave. As a result, the employee’s unionized status does not remove ESA considerations from the analysis.

ESA medical leave protections prevent an employer from terminating or disciplining an employee because they are on medical leave. However, these protections do not insulate an employee from independent, legitimate employment consequences unrelated to the leave itself. Where a decision is driven by objective safety requirements, applied consistently, and required by an external contractual obligation—such as FortisBC’s SMP—ESA does not automatically prohibit employer action.

The primary legal risk in this scenario is not ESA compliance alone, but the perception of reprisal or discrimination, particularly given the timing of the audit outcome while the employee is on leave. Any review by a union, arbitrator, or tribunal will focus on whether the employee would have been removed from the field regardless of the medical leave, and whether the leave played any role, directly or indirectly, in the decision.

It is critical to distinguish this situation from discipline or performance management. A permanent removal from the field based on failure to meet mandatory safety audit requirements should be characterized as a loss of qualification to perform essential duties, not misconduct. Where the SMP provides no discretion and safety-critical work is involved, this framing significantly reduces legal exposure compared to a disciplinary approach.

Despite this, the employer’s duty to accommodate under human rights legislation remains. Before concluding that termination is unavoidable, the employer must consider whether alternative non-field work, reassignment, or retraining is possible without undue hardship, and whether the collective agreement permits such options. Thorough documentation of this analysis is essential, particularly where no viable alternatives exist.

Overall, while there is legal risk, it is manageable if the employer can clearly demonstrate that the decision is driven solely by mandatory safety requirements, applied consistently, and unrelated to the medical leave. The defensibility of the outcome will depend less on the decision itself and more on the process, documentation, and language used, including careful avoidance of any suggestion that the employee’s leave influenced the outcome.

Important note: I am not a lawyer and this advice does not count towards contacting legal counsel.

-HRInsider Staff

[Haley O’Halloran]

in reply to: Vacation Accrual during STD/LTD #98020

Great question — this is exactly where the vacation time vs. vacation pay distinction really matters.

Short answer
Yes, you would generally need to pay out accrued vacation pay, but only to the extent it actually accrued.
If no vacation pay accrued during STD/LTD, then there may be little or nothing to pay out, even though vacation time continued to accrue.

How this plays out in practice

When employment ends (including termination after STD or LTD), employment standards in Ontario, Québec, and Manitoba require employers to pay out any accrued but unpaid vacation pay.

However:
Vacation time (days) ≠ money owed on termination
Vacation pay is the monetary entitlement, and it is calculated as a percentage of wages actually earned

If the employee:
-Was receiving STD or LTD benefits paid by an insurer, and
-Was not receiving wages from the employer during that period,
No statutory vacation pay accrues during that time, unless your policy or contract says otherwise.

So at termination:

-You must pay out any vacation pay that accrued before the disability leave, and
-Any vacation pay that accrued on wages paid during the leave (if any), and
-Nothing further for the vacation time that accrued during STD/LTD without wages behind it.

Why this is not a problem legally (do not accept this as legal advice, though)
Employment standards legislation does not require a payout based on days accrued. It requires a payout of vacation pay earned. Vacation time continuing to accrue preserves the employee’s right to time off if they return, but it does not magically convert into money when no wages were earned.

Make sure your policy clearly states:

-Vacation time continues to accrue during approved leaves
-Vacation pay accrues only on wages paid by the employer
-STD/LTD benefits paid by insurers are not wages for vacation pay purposes

Bottom line:
On termination after STD/LTD, you pay out vacation pay actually earned, not vacation time that accrued without wages. In many LTD cases, that means the payout is minimal or zero beyond pre-leave earnings.

[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

[Author]

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