[vickyp]

in reply to: Answer for Returning from COVID #87212

No doctor’s notes for COVID-19. What you CAN ask:

1. Body temperature check
2. Are you displaying any other symptoms of COVID-19 within past 48 hours–cough, fever, shortness of breath, difficulty breathing, sore throat, sudden loss of smell
3. Risk Factors: i. Have you been out of Canada in past 14 days? and ii. Have you had close contact, i.e, within 6 feet/2 meters of person known to have COVID-19

If they have fever, or answer YES to symptoms or either of the risk factors, you must deny them entry, send them home and tell them to self-isolate for 14 days. No exceptions for Qs 1 and 2 but one possible exception for Q3: If the employee is a health care or critical infrastructure services worker, you can let them continue working even if they answer YES to Q3, provided that they self-monitor, wear mask at all times, remain the required 6 feet away with no exceptions and show no symptoms. The moment they show symptoms, you gotta send them home.    Check out: https://hrinsider.ca/social-distancing-the-10-things-to-include-in-your-covid-19-screening-policy/
Hope that helps. Glenn

[vickyp]

in reply to: Answer for British Columbia #87225

Here u go, Toni:
OK, there are really 4 questions here:

1. Changing vacation pay from an accrual to pay every period for PT employees. There is no notice period required, but this can only be done with each employee’s written consent. One option might be to make this a condition of the return to work, for employees who have been laid off. But this might encourage employees to consider they have been terminated and claim wrongful dismissal.
2. Removing benefits from employees. This can be done, with the notice required if you were going to terminate them. In effect, you are terminating their existing employment contracts and offering new employment on lesser terms. But also be prepared for employees to consider they have been terminated and seek damages for the lost employment.
3. Changing the pay period for PT employees so that it matches that for FT staff. This is wholly within management’s discretion to do. You should give people reasonable notice if the actual pay day is changing. Although not required, 1 or 2 month’s written notice would be reasonable, since employees may have bills scheduled to come out of their bank accounts tied to date they have historically been paid.
4. Incorrect bonus and commission pay. If employees have been short paid, you should make up the difference for any payments made within the last 12 months. That’s the period an employee could get an order from the employment standards authorities on a claim for unpaid wages. If there have been overpayments, you don’t have the right to recover these from subsequent payments. If the changes in these bonus/commission terms are significant and not in the employee’s favour, then you again run the risk of employees claiming that in effect they have been terminated, since you’re no longer willing to abide by the existing terms and conditions of employment.

None of these answers are affected by whether or not employees are on a lay off.

[vickyp]

in reply to: Answer for British Columbia #87224

Toni: Just wanted to let you know that Alan said he’d get back to me on your Q over the weekend. I apologize for not being able to furnish you an answer today but I promise to closely monitor the gmail and send you Alan’s response the moment I receive it. Thanks for your patience and understanding.

[vickyp]

in reply to: Answer for British Columbia #87223

This one calls for our payroll expert, Alan McEwan. Will let u know as soon as I hear back from him

[vickyp]

in reply to: Answer for Any insight appreciated – can we reduce hours drastically (assuming collective agreements and employees allow for it etc.) and have employees work each week, but reduce hours enough to be eligible to receive CERB? #87211

Any time. It also helps when the users get it right and I don’t have to do any work. 🙂

[vickyp]

in reply to: Answer for Any insight appreciated – can we reduce hours drastically (assuming collective agreements and employees allow for it etc.) and have employees work each week, but reduce hours enough to be eligible to receive CERB? #87222

Yeah, you got it right. Not in love with the phrasing of the reapplication Q. Here’s how CRA words it. Never hurts to use the government language verbatim.

• You are applying for the first time
  For at least 14 days in a row during the 4-week payment period, you do not expect to receive more than $1,000 (before taxes) from employment and self-employment income
• You are re-applying for another period
  You do not expect your situation to change during this 4-week period and you do not expect to receive more than $1,000 (before taxes) from employment and self-employment income

 

[vickyp]

in reply to: Answer for This is a statement in our company Use of Cell Phone policy – “As part of our food safety programs all employees must provide Human Resources with the following cell phone information; make and model and telephone number. #87221

Yes, the Q is legal and you must provide the information PROVIDED THAT your employer needs the information to carry out a legitimate employment related purpose and is collecting only the minimum information it needs to carry out the purpose. You are also within your rights to ask the employer why it needs and how it intends to use the information and assure you that it won’t use or disclose the information to anybody else for other purposes unless it first notifies you and gets your consent, except where the use or disclosure is required by law, e.g., giving the info to a government official for a legitimate govt purpose like law enforcement.
Sorry to sound so much like a lawyer. Bottom line: Ask them why they want the info and, if it’s a legit reason, make them promise not to use it for anything else. Glenn

[vickyp]

in reply to: Answer for Advice when laying off Unionized Staff due to Government Mandate during the current COVID-19 Pandemic #87220

My goodness. This is a tricky one. Before I begin, I want to be clear that I AM NOT QUALIFIED TO SERVE AS YOUR LEGAL COUNSEL AND THAT THIS IS JUST A PERSON OPINION RATHER THAN LEGAL ADVICE. MOREOVER, THAT PERSONAL OPINION IS BASED JUST ON WHAT YOU SENT ME AND NOT A FULL UNDERSTANDING OF THE FACTS. IN ADDITION, TO THE EXTENT YOU HAVE RECEIVED LEGAL ADVICE FROM A QUALIFIED LAWYER FAMILIAR WITH THE SITUATION, YOU SHOULD FOLLOW IT OR AT LEAST SEEK CLARIFICATION.
Okay, now that I’ve provided my disclaimer, I’ll say that my personal opinion is that the union DOES have a point.
First of all, a strong case can be made that the temporary layoffs are, in fact, an adjustment plan subject to Section 54, especially insofar as the provision is specifically mentioned in Article 25 of the collective agreement. Somebody would have to research the LRB guidance and case law to determine whether the union would win on such a claim. But the one thing I feel reasonably sure of is that the pandemic wouldn’t be grounds for relief from Section 54 obligations.
Collective agreement: If your lawyer is telling you that the Collective Agreement doesn’t apply during a pandemic, you should believe him/her. But I’d also ask for an explanation why it doesn’t apply. There’s nothing in the provisions you included that says anything like that. But, of course, I don’t have the entire agreement and there may well be something that excuses contractual obligations during the pandemic, like a force majeure or Act of God clause. Ask your lawyer to point you to that language or, if there is no such language, other basis for his/her conclusion.
One more thing is bothering me: What does Article 2.06 say. That’s the clause referenced in the School Closure provision as not being subject to that provision.
Bottom Line: Believe your lawyers but ask them to explain the legal basis of their conclusion that the collective agreement doesn’t apply; ditto for Section 54. If they can’t offer a satisfactory explanation, I think the union has a case–not that it would necessarily win but that it would survive a motion for summary dismissal.
Hope this helps. Glenn

[vickyp]

in reply to: Answer for Temperature Screening & Paying Employees If Sent Home – ON #87219

1. Reporting Pay: I believe you would have to pay employees 3 hours of reporting pay under Sec. 11.1 of the Labour Stds Reg.
Reporting Pay
11.1 An employer shall pay an employee who reports for work at the call of the employer wages for not less than three hours of work at the employee’s regular rate of wages, whether or not the employee is called on to perform any work after so reporting for work.
2. Pay for Full Day: Under the CLC and Regs, if the employee reports to work and fails the medical screening, you’re only on the hook for the first 3 hours. Of course, there’s more to life than the CLC and your company may have an obligation to pay a full day under an employment contract or collective agreement, HR policy or past practice. If there is no such contractual, HR policy or past practice requirement, then, no, you don’t have to pay for the full day. Same analysis applies to employees who are scheduled but don’t report to work. Neither the CLC nor Regs address this issue, so it comes down to your contracts, HR policies and/or past practices.
Caveat: Be careful because failure to pay for a day could expose you to liability for constructive dismissal or even discrimination to the extent you don’t follow the policy consistently and treat members of a protected class, e.g., race, sex, less favourably than others.
Great Qs and I hope this helps.

[vickyp]

in reply to: Answer for Vacation pay/deferral in Ontario #87218

And here’s Alan’s two-cents worth, so to speak.
****
I think deferring is one thing, so long as employees take at least the minimum time required under the applicable employment standards.
Forfeiting is another and may well be viewed as constructive dismissal, as you have correctly pointed out in your answer.
If the collective agreement provides for 5 weeks of vacation time, it would require union consent to change these provisions.
Otherwise, the union could presumably go to the labour board and file a complaint.
The different impact on those with 2 versus 5 weeks of vacation pay is not discrimination as defined by any of the Human Rights legislation. Seniority is not a protected ground for Human Rights purposes, but may be in a collective agreement.

[vickyp]

in reply to: Answer for Vacation pay/deferral in Ontario #87210

I’m going to run this past our payroll guru, Alan McEwen for confirmation, but here’s my less expert opinion:
1. Yes, provided that the new vacation entitlement doesn’t fall below the ESA minimum or violate the terms of any preexisting collective agreements, employment contracts or benefit plans
2.Same answer
3. Also the same answer. In fact, this may be a necessity to the extent your changes encounter union resistance or violate the collective agreement.
4. Potentially yes to the extent these vacation changes are made unilaterally. However, you may have some leeway if the changes are only temporary and made in response to the COVID-19 crisis. The problem is that the outcome of constructive dismissal litigation is extremely hard to predict. Each case turns on the specific facts, the credibility and even like-ability of the parties and the arbitrator/judge’s individual outlook. But, yes, constructive dismissal would be a risk.
5. Discrimination, too, is a potential risk. A policy that seems neutral on its face may still be discriminatory if it has the effect of discriminating against a protected group, e.g., a fitness test in which ALL applicants must complete an obstacle course in X minutes may have the effect of discriminating against women, pregnant women, older and disabled applicants. To the extent all or most of the employees affected by the vax cuts fall into one of the protected groups, this claim for discrimination would be on the table.
I’m pretty comfortable with Answers 4 and 5 but want to see what Alan says about Answers 1 to 3.  Hope this helps and I’ll circle back as soon as I hear from Alan. Glenn

[vickyp]

in reply to: Answer for Support for Managers during COVID-19 #87217

Good Afternoon
Here are some articles that should be useful.
https://hrinsider.ca/leadership-developmentmentoringcoaching-2/
https://hrinsider.ca/managing-a-remote-workforce-2/
https://hrinsider.ca/engaging-your-employees-through-technology-mobility-can-boost-productivity/

[vickyp]

in reply to: Answer for We are a Transportation Company. We fall under Federal Legislation. Under Covid – 19 we would be considered an “essential service.” We have some work places in high risk provincies such as Ontario, BC and Alberta. 1. Are we (the Employer) legally allowed to take employees tempratures before they enter the building? 2. If our builidng is leased can the Landloard take the temprature of our employees prior to allowing them to enter the building? If yes, are there any rules about what the actual symptomatic temprature is? #87216

About a week ago, u asked me if it’s permissible for employers to take employees’ temperatures as a screening measure for COVID-19. My answer was an emphatic NO. However, I’ve since learned more about the issue and my views have changed.
My biggest concern was with privacy. But as things develop, I’m realizing that, at least for the moment, health trumps privacy. I’ve also become aware that many employers are, in fact, taking employee temps and that employees actually want to be tested–and also want their coworkers to be tested.

As a result, I’m changing my answer: YES temperature taking may be a reasonable safety measure for COVID-19. But caveats apply:

1. Employees can still withhold consent if they don’t want to be tested; and disciplining them for refusal can get iffy in the event of a grievance or legal challenge;
2. Normal body temperature doesn’t mean a person isn’t carrying COVID-19. Although fever is one symptom of COVID-19, not all carriers have elevated body temperature.

Thank you for asking this important Q and helping me gain a better understanding of this issue. Glenn

[vickyp]

in reply to: Answer for recall during temp lay off #87209

Here you go. I apologize for keeping you waiting but I’m on the East coast and Alan is in BC and this came in just before midnight while I was sleeping. Good luck with your situation.
*****
In BC a “temporary layoff” is defined as 13 weeks in any 20 where employees earn less than 50% of the regular wages. So, essentially, an employer could lay off staff, bring them back one or two weeks later, have them work for a several weeks, lay them off again, all within the scope of a temporary layoff.
Your reader asks two questions:

1. What documentation is needed when employees are recalled to work? That really depends on the context. If employees are paid by timesheet and sign these, that’s probably sufficient record of the return to work. If employees are paid by salary, there should probably be something, even if its an email from the employee or the person’s supervisor acknowledging the return to work. Remember, in BC employers are required to record an employee’s actual hours of work, irrespective of the method of pay.
2. The impact on EI of work during a layoff. This will impact their ability to claim EI benefits. There are two considerations. If an employee works just a small number of hours per week, benefits may still be payable, but will be reduced. If benefits are payable, no matter how little, this will still count as one of the benefit weeks a person is entitled to. It’s really more beneficial for employees to work more or less full time, so they can suspend their EI claim. Since the weeks a person may be entitled to (based on the hours reported on the ROE) may be taken within a 52 week period, there isn’t too much impact if a person suspends their claim for a week or two and then returns to that claim. In this situation, if there are still weeks remaining to be paid, it won’t be necessary to start a new claim.

Also, a person can’t both be on EI and claim the new emergency benefit – CERB – provided on a short term basis by the federal government.
Also, if a person does work while there is an existing EI claim, the employer should emphasize the importance of properly reporting the hours worked. Otherwise, this will jeopardize any future EI claims and lead to significant penalties imposed by Service Canada.

[vickyp]

in reply to: Answer for recall during temp lay off #87215

I’m still waiting to hear from Alan, which should come by EOD, but I’ve done some research of my own and think that the answer is NO, you don’t need any formal agreements to recall employees–although you would need to complete an ROE for each employee on temporary layoff. Nothing in ESA suggests any such written agreement is required–in fact, it doesn’t even require notification of layoff the way many jurisdictions do.
When it comes to EI, I’m on much less firmer ground. However, I can suggest looking into Work Sharing, which allows you to recall employees at reduced hours–in essence, sharing the work and the layoff–without reducing their EI benefits. Absent Work Sharing, though, I believe that returning to work costs employees their eligibility for EI employment benefits. But again, this isn’t my expertise and I’m still awaiting word from somebody who knows this stuff way better than I do. To be continued. . .

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