[vickyp]

in reply to: Answer for Paid time off for COVID-19 Vaccinations #87344

Funny you should ask. We just wrote extensively on this topic a couple of weeks ago. As you may know, Sask adopted paid COVID vaccination leave (3 hours) and there’s talk of BC’s doing the same. If you can’t find the two pieces on the HRI site, let me know and I’ll gmail them to you. glennd@bongarde.com.  As for the last part of the question, no, I haven’t seen any paid vaccination leave policy but I’ll look around. That’s something we should probably include as part of the HRI service. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Is a termination clause enforceable? #87343

By “termination clauses,” I trust you mean contract clauses saying that if the employee gets terminated without cause, he/she agrees to waive common law notice rights and accept termination notice required by the ESA? If so, the enforceability of the clause all depends on how it’s drafted. As you may know, there’s a steady stream of litigation challenging the legality of these clauses, especially in Ontario. And employees almost always win.That’s because courts are EXTREMELY PICKY about these clauses and won’t enforce them if they’re in any way unclear or ambiguous or if they can be interpreted in any way as depriving an employee of any of his/her ESA rights, even if that troublesome language isn’t relevant to the employee’s case. There was a major case out of Ontario called Waksdale that you might want to check out. At least, you might want to check out our analysis of it. https://hrinsider.ca/employment-contracts-ontario-case-casts-doubt-on-enforceability-of-termination-notice-limits/
The good news is that your lawyers surely know all about Waksdale and all of the other cases. And if they’ve carefully reviewed the clause and are confident in its validity, I would never, ever second guess them. Glenn

[vickyp]

in reply to: Answer for ONT #87342

Great questions. Everybody’s so hepped up over mandatory vaccination that they’re overlooking the obvious point that your question raises: Are employers allowed to ASK employees if they’ve been vaccinated? The answer is, in your case, maybe to probably.
Explanation: Whether an employee has been vaccinated is personal medical information that employers aren’t normally allowed to ask their employees to provide. But, as we all know, pandemic is different. Employers DO have leeway to ask about vaccination to serve a compelling workplace health need; and ii. They keep the question as narrow as possible to solicit only the info they need to serve the safety purpose and keep the information confidential.  Employers in healthcare have the most leeway as far as compelling need is concerned. But food processing is right up there. As for the second part, the best thing I can do is provide you guidance from the one government agency that has actually addressed this issue, the Sask Office Information Privacy, which works equally well in Ontario or any other part of Canada.
The answer to the second question is pretty much the same as the first. It’s all about a compelling health need. Being in food processing puts you in a stronger position to require vaccination. The fact that you’re only making this demand of employees who have been exposed to a COVID case would really strengthen your case for mandating vaccination. Again, though, the privacy rules would apply.
Here’s the guidance from the Sask OIPC
Can employers ask employees whether they have received the vaccine or request proof of vaccination?
The OIPC did not say that asking employees about their vaccine status, or asking for proof of vaccination, was prohibited. In fact, the OIPC implied that employers may do so in some circumstances and with appropriate privacy protection measures in place. While employers in Saskatchewan, and all provinces, have an obligation to ensure the health, safety and welfare of its workers, this must be balanced with the employee’s right to privacy. Employers should evaluate whether implementing a vaccine verification program is integral to providing a safe workplace and ensure that such a program does not unreasonably infringe on an employee’s privacy expectations.
Key Principles
If an employer determines that a vaccine verification program is integral to the health and safety of its workers, the OIPC advises that, regardless of whether an employer is subject to privacy legislation, the following key principles are best practices:
(1) Establish the purpose and authority for asking for the information and notify employees of the purpose
Employers should determine the purpose for collecting information about an employee’s vaccination prior to implementing any vaccine verification program. Is it to keep the workplace safe? Is it to prevent transmission of COVID-19 being spread from employee to employee, customer or patient?
Once employers have decided to implement a vaccine verification program, the OIPC suggests that employers develop a policy on COVID-19 vaccinations. The OIPC recommends employers use a privacy impact assessment (“PIA”) to assist organizations in assessing whether a proposed measure complies with privacy legislation. However, the OIPC recognizes that current times may demand that employers take a faster approach. So, either a shortened version of a PIA or a policy statement regarding COVID-19 vaccinations is recommended. At minimum, the OIPC says the policy should contain:

• authority for the collection;
• a statement of the purpose;
• a statement as to whether employees will be asked to show a vaccination certificate;
• a statement on possible actions taken based on whether the employee has the vaccination or not;
• a statement on where information will be stored;
• a statement as to who it will be shared with (with public authorities or not); and
• a statement on when the information will be destroyed.

Employers are encouraged to be open and transparent with their employees and should advise them that they will be asking whether the employee has received the vaccine, has a vaccination certificate and inform them of the purpose.
(2) Collect the least amount of information to meet the purpose
Employers should collect only what is necessary to achieve the purpose of implementing the vaccine verification program. Examples given by the OIPC of varying degrees of collection include: (i) accepting an employee’s verbal confirmation that they have been vaccinated, or (ii) requiring proof of vaccination but not making a copy of the vaccination certificate.
(3) Share information with only those who need to know
Employers should check relevant legislation prior to using the information collected for any purpose other than the one identified for implementing the vaccine verification program. The OIPC recommends that very few people will need to know whether an employee has received the vaccination and instead only statistical information as to how many employees have received the vaccination should be shared. Employers should not include names or identify who has or has not been vaccinated. This information should be treated like other sensitive health information and as confidential.
(4) Store the information, keep it secure, and destroy it when no longer needed
The OIPC recommends either storing employee information related to vaccinations: (i) in each employee HR personnel file, or (ii) in a separate folder for all employees. Employers subject to privacy legislation have an obligation to protect and secure this information (such as a locked file cabinet or on a computer that is password protected, encrypted and on a secure network). Employers not subject to privacy legislation should still follow best practices.
Personal information should only be kept in accordance with applicable privacy legislation and should only be kept for as long as required to fulfil the identified purpose.
Generally, it is a good practice to destroy any personal information as soon as it is no longer needed. Holding on to personal information unnecessarily increase the risk of a data breach and the severity of data breach that does occur.
*****
Hope that answers your questions. Glenn

[vickyp]

in reply to: Answer for Termination of ill employee within their probation #87341

Oh my! I know how you feel but you have to do your job. These are the situations that make me feel that HR directors are underpaid. Before I answer the question, I want to stress that this is my personal opinion and NOT legal advice, which I’m neither allowed nor qualified to provide. So, if you can run this by counsel, you should.
Heartless as it may sound, I believe you may terminate the employee for lack of suitability since the employment is still probationary and her CLC benefit entitlements haven’t yet vested. This is assuming that there are no employment contracts or other written agreements promising the employee benefits more generous than the CLC minimums. Another risk to consider is whether you made any verbal promises or assurances of benefits. If so, the employee may seek to hold you to them.
Of course, there’s more to these things than having the law on your side. I usually urge questioners to do what they feel is right, even if it’s not legally required. The problem is that it’s tough to figure out what the right thing to do with an employee who was with you for only such a period of time. I just hope this little analysis contributes in some way to alleviating what is truly a brutal situation. Lets hope that she makes a full recovery and is able to return to work for you in the near future. Take care.

[vickyp]

in reply to: Answer for If you discover an issue, how far back to you need to amend T4’s for your employees (in Ontario?) I cannot find a straight answer. #87340

Here you go. This comes from our payroll expert, Alan McEwan.
There are really two answers:

1. The employer’s obligation is to report the correct amounts on each T4 slip. If one of the boxes has been reported with an incorrect value, its as if the slip itself was never filed. There is no expiry date on the requirement to file a slip, so if an error is discovered an amended slip is required, no matter how old the error is.
2. So long as there is no fraud involved, i.e. the deliberate misrepresentation of income, then the dates that limit the CRA’s ability to re-assess income apply or 6 years. In other words, for the 2014 T4s, no amendment would have to be file after December 31, 2020.

[vickyp]

in reply to: Answer for Flextime Policy – MB #87339

Here’s one I found on our website. Hope it helps.
Summer Flextime Policy
The operating days and hours of [Name of Company] are Monday through Friday, 8:30 a.m. to 5:00 p.m. All
employees are expected to be at work during these hours. Flexible work schedules are not permitted, except
during the summer months, starting the week in which Victoria Day is observed and ending the week in which
Labor Day is observed.
The summer flextime policy at [Name of Company] allows employees to work extra time Monday through
Thursday in order to leave at 1:00 p.m. on Friday. The time of arrival and departure may not differ from the
standard operating hours by more than two hours, except for the Friday early departure. For example, a typical
summer flextime arrangement is Monday through Thursday arriving at 8:30 a.m. and departing at 6:00 p.m. and
on Friday arriving at 8:30 and departing at 1:00 pm.
Supervisors approve flextime on a case-by-case basis. An employee must first discuss possible summer flextime
arrangements with his or her supervisor, then submit a written request using the Summer Flextime Request
Form. The supervisor will approve or deny the flextime request based on staffing needs, individual job duties,
employee work record, and the employee’s ability to temporarily or permanently return to a standard work
schedule when needed.
A summer flextime arrangement may be suspended or cancelled at any time. Exempt employees must depart
from any flextime schedule when needed to perform their job duties. Nonexempt employees may be asked to
work overtime, regardless of a flextime schedule.

[vickyp]

in reply to: Answer for terminating-a-contract-employee #87338

Direct from our payroll, expert: Hope this helps. Glenn
You’d have to look at the exact terms of the contract, but SK seems to be an exception to the rule that notice is not normally required for a person hired as an employee with a fixed-term contract.
Subject to what the contract actually says, I would expect the employer is liable for the greater of the remaining contract term and the notice required under the SK employment standards.
For example, if the contract is a simple one that says the person will be employed for XX months, at a fixed salary of YY dollars per month, and there are no provisions for ending the contract before these months expire, then the person is owed the salary for those months.
I would also add that the employee does not have to sue in the courts to have the contract enforced. The SK employment standards can write an order enforcing the payment of any monies owing under a contract of employment.

Alan R. McEwen
Alan McEwen & Associates
855 Berwick Road South, Qualicum Beach, BC  V9K 1R3
250-228-5280 in the Pacific time zone
https://alanrmcewen.com

[vickyp]

in reply to: Answer for BC -Is consent required to send messages (bulletins, info from the company) to the employee’s personal cell phone #87337

Rule 1: You can’t collect, use or disclose an employee’s protected information without consent
Rule 2: One of the many exceptions to Rule 1 is that you don’t need consent if the collection, use and disclosure is essential to carry out a legitimate employment purpose and you limit the amount of information to the minimum reasonably necessary to meet that purpose.
OK, let’s look at how all this applies to your question. The first thing you need to figure out is whether the “personal cell information” you reference is protected. Since I don’t know what this information is, I can’t answer this. However, in general, information is deemed protected if it identifies the individual, either directly, ie, name, or indirectly such that somebody could use the info to figure out who the person is.
Next, what are you using the info for? Are these uses legitimate employment functions? If so, do you really need the cell phone info to perform them? And if so, are you using just the info you need to perform the function.
Hopefully, this gives you a framework you can use to figure out if you need consent. Feel free to contact me directly at glennd@bongarde.com if you want to follow up. Glenn

[vickyp]

in reply to: Answer for Tuition Reimbursement #87336

Some language: MODEL A: MARATHON OIL
H. Repayment Requirements
The Marathon Petroleum Tuition Assistance Repayment Agreement is a provision that requires
an employee to repay amounts received for Tuition Assistance in the event the employee
voluntarily separates employment from the Company. (Repayment requirements apply to
non-degree courses and courses taken as part of a Degree Program.)
By signing the Repayment Agreement, an employee agrees to repay Tuition Assistance benefits
received under this Plan based on the following schedule, should the employee voluntarily
terminate employment with the Company:
Time Elapsed
The amount of time between the date(s) of the Tuition
Assistance reimbursement and the employee’s
termination date.
Percentage of Repayment
Applicable to the amount of Tuition
Assistance received during the
24 months prior to the employee’s
termination date.
6 months or less 100 percent
More than 6 months, but less than 12 months 75 percent
More than 12 months, but less than 18 months 50 percent
More than 18 months, but less than 24 months 25 percent
Under this provision, the Company may withhold from an employee’s final paycheck (base salary,
bonuses, vacation pay, and/or expense reimbursements), to the extent permitted by applicable
law, monies up to the amount due the Company for any Tuition Assistance paid within the above
timeframes.
MODEL B: BP
An employee will be reimbursed 90% of the cost of tuition, books and certain other fees up to the policy
maximum of $5,250 as long as:
 the employee is actively at work at the time an approved course is completed, or the employee is
terminated in conjunction with an ABSC action (relocation or termination due to re-organization) while
participating in an approved course; or the employee must go on an unforeseeable leave of absence
while participating in an approved course, or the employee’s status changes from full-time to parttime after a course has been approved and the coursework begun but not yet completed (all other
policy requirements still apply);

http://hrcpdocctr.conocophillips.com/Documents/HR-documents/TuitionRefundPolicypage09242008.pdf   Addresses this as FAQ at end of general policy. One approach you could use.

Hope this helps. Glenn

[vickyp]

in reply to: Answer for Employment Agreements #87335

While model policies and procedures are great, I’m always uncomfortable with templates and model agreements pertaining to an individual case since every situation is different. This is especially true for Last Chance Agreements, which vary depending on what precipitated the discipline–drugs, attendance, performance, etc. Anyway, here are a couple of decent things I was able to find.
http://astscorp.com/downloads/last_chance.pdf
https://www.templateroller.com/template/2075479/last-chance-agreement-template.html

[vickyp]

in reply to: Answer for Employment Agreements #87334

After shopping around, I thought this was the only decent template I could find. If you’d like, we can poll our members and ask if they’d be willing to share, especially a temporary contract. I’ll check again tomorrow also.

Regular Employee: https://www.lawinsider.com/contracts/qiRBPfAzLO

[vickyp]

in reply to: Answer for Employment Agreements #87333

Can you please tell me which province you’re in–or if you’re federally regulated? Thanks.

[vickyp]

in reply to: Answer for Mandatory Policies #87332

This list is unofficial, but my checklist of mandatory HR policies would include:
I. Code of Conduct that Includes: *Anti-Harassment and Bullying; * Respectful Workplace; *Employee Use of Work Computers, Internet and Social Media; *Conflict of Interest; *Confidentiality; *Personal Appearance and Dress Code; Client Gifts and Perks; Anti-Discrimination and Equal Opportunity; *Workplace Accommodations Policy and Procedure; Privacy, Data Security (passwords, IT access, etc.)
II. Drug/Alcohol Policies, including: *Fitness for Duty; *Alcohol Drug Testing; *Self-Disclosure (optional);
III. Attendance and Work Time Policy that addresses: Attendance and Punctuality; How you deal with absenteeism; Sick Days and sick leave; work hours and work scheduling and reporting; unpaid leave; vacations; stat holidays
IV. Wages Compensation, including overtime, methods of payment, pay schedules, bonuses, commissions, etc.
V. Progressive Discipline
VI. Performance Standards and how you enforce them, including how you deal with poorly performing employees, Performance Review
VII. OHS Policies, including Worker and Supervisor OHS Rights, Workplace Violence, Work Refusals, Reporting Hazards or Incidents, Hazard Assessment, Training and hazard- and operation-specific policies like Slips/Trips/Falls, Electrical Work, Confined Spaces, Machine Safety, WHMIS, and lots of others
I’m probably forgetting something but this is a pretty good start. Hope it helps. Glenn

[vickyp]

in reply to: Answer for Layoff – does it mean willful neglect of duties if employee refuses to return on a set date from layoff? #87331

From our payroll expert, Alan McEwan:
It all depends on the scope of the refusal to return to work.
If the person is saying he or she needs some reasonable time before a return to work, that is one thing. If it’s a flat out refusal to return at all that’s another.
The other factor is that the person is rapidly approaching the 13-week threshold for converting a temporary lay-off into a termination. According to my calculations, this would be March 15, 2021. That’s the general rule. There are exceptions related to benefit continuance, union membership, etc.
But basically,

1. If the person has flat out refused to return to work, that eliminates any employer obligation to pay notice under the employment standards. Any vacation pay or banked overtime, etc., would still have to be paid out.
2. If the person just needs a reasonable amount of time to accommodate the return to work, the employee and employer could agree on a return date.
3. Failing such an agreement, once March 15 has passed with no return to work, the person has effectively been terminated and notice pay, vacation pay, etc. is owing.

In any event, unless there is a collective agreement with return to work provisions, the employer is under no obligation to keep this person’s job for him or her.

[vickyp]

in reply to: Answer for What is employer obligation for wage on MAT leave returning to work? #87330

That is more than generous, Mirella, considering that we kept you waiting for over a week. But I’m glad we were able to help. There was an unusual situation that temporarily limited our access to payroll expertise. But we’ve fixed the problem and will be able to respond much faster next time.

[Author]

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