[vickyp]

in reply to: Answer for From an employer perspective if we “lay off” an employee due to “shortage of work” we stil issue a ROE and incdiate Shortage of Work. My question are we can still lay employees off if needed – correct? The rules aound layoffs under Federal Labour Standards remain the same under Federal Labour Standards – Correct? #87214

Right. List Code A (Shortage of work) in block 16 and follow the normal temporary layoff rules. A bunch of jurisdictions have changed their ESA temporary layoff rules for COVID-19, but FED isn’t one of them. Of course, I haven’t actually checked in the last 2 days, so I’m not aware of any FED changes that have come down in the past 48 hours. But I’ll do a quick check tomorrow and notify u immediately if anything’s happened. Glenn

[vickyp]

in reply to: Answer for recall during temp lay off #87208

Let me check with my payroll guy, Alan McEwen. You’re in BC, right?

[vickyp]

in reply to: Answer for When is it safe for a Worker to Return To Work? #87196

YES, the worker can return to work if the self-isolation was purely precautionary, i.e., the worker hasn’t been directly exposed or traveled outside Canada, doesn’t have symptoms and doesn’t have any other illnesses. That one would fall under Situation 5 of the Cheat Sheet. Glenn
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[vickyp]

in reply to: Answer for Federal – during covid – can we reduce the work week by a day (don’t want to offset by a government program) or roll back wages? What kind of notice is required? #87207

Assume we’re talking non-union here. Wage and hour cuts can be negotiated but there are legal risks. Check out this piece from HRI that breaks it down. Hope that’ll help. Glenn  https://hrinsider.ca/3-traps-to-avoid-when-asking-employees-to-take-pay-cuts/ 

[vickyp]

in reply to: Answer for Beneficiary Designation #87206

You’re welcome, Teresa. I really wish I could have been of more help.

[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? #87205

Basically, no.Think of it like a drug or alcohol test, which is highly privacy invasive and only permitted for safety-sensitive employees. Random testing is almost never allowed. What you’re proposing is actually more invasive than random testing; and you’re proposing to do it on all employees. The only way that would be permitted is if all employees give their full and voluntary consent. But that’s not very likely, especially if they’re unionized.
The landlord scenario is even more legally questionable. Even if there was something in the lease justifying the landlord’s right to test tenants, it wouldn’t bind the tenant’s employees since they weren’t parties to the lease and you can’t consent on their behalf.
If I’m overlooking something, pls let me know. But I see no legal basis for this kind of testing. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Beneficiary Designation #87195

Thanks Glenn!

[vickyp]

in reply to: Answer for Beneficiary Designation #87204

This way beyond my expertise, but I think the answer is yes, provided that govt guidelines are followed. Here are the guidelines for insurance https://open.alberta.ca/dataset/80b795f6-c781-4268-9da2-f21e1d3cc338/resource/15f6ca43-c68f-4a12-9b7d-f02d57327f9f/download/superintendent-of-insurance-2014-04-bulletin.pdf Couldn’t find anything like this for pensions, however.
One caveat based on something I learned in law school. Email, fax not valid to change a beneficiary designated in a will. Will needs to be reexecuted.
Wish I could be of more help. Glenn

[vickyp]

in reply to: Answer for Health and Safety Violation #87194

Hi, Natalia. Just checking in to see how your situation is going. Pls keep posting on the forum but also here’s my gmail glennd@bongarde.com      Stay well. Glenn

[vickyp]

in reply to: Answer for Health and Safety Violation #87193

You are so on the ball. The Qs you ask shows you are on top of the risks. Yes, you can do all of these things but you do run some legal risks.
Constructive Dismissal: I think you’re pretty safe on this one. REMEMBER: Just personal opinion not counsel. True, the reassignment is a unilateral and unfavourable change in employment terms raising the specter of CD. But, as u note, it’s a disciplinary action and one grounded on solid and legitimate safety concerns. Of course, you could take the air out of the CD balloon by offering employment at commensurate pay and terms. But if that’s not available, I think u got a solid defence against CD. Especially true if u have and are following a clear progressive discipline policy which provides for demotion in the event of safety and other serious violations and follow that policy consistently with other workers.
My bigger concern is failure to accommodate. But that’s only an issue if the worker has an addiction or dependency. And u haven’t indicated that’s the case. Even if it is the case, u r in a strong position to argue that the demotion is justified and allowing the worker to do a safety-sensitive job is undue hardship. Take a look at the summary of a case from last year posing this Q, albeit in slightly different circumstances.
Not Discrimination to Deny Safety-Sensitive Job to Legal Medical Marijuana User
After one successful stint, a veteran and reliable construction worker was rehired to work on another project provided that he pass a drug test. Before taking the test, he revealed that he legally vaped about 1.5 grams of medical marijuana containing up to 22% THC each night after work to manage pain related to Crohn’s disease. So, the employer revoked the offer in the interest of safety. The union claimed discrimination but the arbitrator tossed the grievance. The worker was entitled to accommodations but letting him do a safety-sensitive job would be undue hardship. Although he vaped only after work hours, THC remains in the system at potentially impairing levels for up to 24 hours.  Offering him a non-safety-sensitive position would be a reasonable accommodation; unfortunately, no such jobs were available. The union appealed but the Newfoundland court said the arbitrator’s ruling was reasonable and refused to reverse it [IBEW, Local 1620 v. Lower Churchill Transmission Construction Employers’ Association Inc., 2019 NLSC 48 (CanLII), Feb. 22, 2019].
All in all, u seem to be handling this quite sensitively BUT I STILL STRONGLY ADVISE YOU TO TALK TO A LAWYER. Stay well. Glenn

and failure to accommodate.

[vickyp]

in reply to: Answer for Health and Safety Violation #87203

Hi Glenn, thanks for the response. We are proceeding with worksafe regarding the actual incident, but at this point we are not comfortable with the crane driver operating our crane trucks. Are we able to assign him to another job, i.e loader or just a driver? If we do this can we also adjust his pay? As a crane driver he is making considerably more than that of a driver or loader. Can this be considered constructive dismissal even if its safety related and the reason for doing so is that we don’t feel he is able to safely perform his current job as crane truck driver?

[vickyp]

in reply to: Answer for In BC, can an employer require an employee to take their vacation leave in a non-unionized environment? #87202

Received this note from Alan confirming my earlier response to your Q.
****
Sorry, thought I had answered this earlier.
Yes, your answer is correct.
In practical terms, it might be better off for employees to claim the new federal and BC benefits related to the covid-19 crisis and save their vacation pay for later, in case these new benefits aren’t sufficient.

Alan R. McEwen
Alan McEwen & Associates
PO Box 144 Station Main, Qualicum Beach, BC  V9K 1S7
250-228-5280 in the Pacific time zone
https://alanrmcewen.com

[vickyp]

in reply to: Answer for Health and Safety Violation #87192

Another awesome Q! Sounds like you’ve been quite busy this week. First thing you should do is thank God everybody’s alive and unhurt. Drug testing the driver should have been the very next step. If–and it’s a BIG if–you need to have a drug testing policy in place. If so, you need to ensure it allows u to test in these circumstances. Chances are, it does to the extent crane operator is a safety-sensitive position and the incident and discovery of marijuana constitute reasonable cause. The problem is that if you haven’t tested by now, it’s too late since the THC will have metabolized and any positive result won’t be proof of impairment at the time of the incident.
In either case, you need to do an investigation of the incident to determine its root cause. The pot is evidence of driver impairment and you must take photos clearly documenting the time and place it was discovered. Interview the operator and other witnesses. If the operator WAS doing drugs, BE CAREFUL to find out if he/she has an addiction or is just a casual user keeping in mind that an addiction/dependency is a disability under human rights law and you must make accommodations to the point of undue hardship. If he/she’s just a casual user, the gloves are off and you can treat the offence the way you would treat such an offence under your progressive discipline policy considering factors like previous offences, honesty in admitting, remorse, years of service, etc. Make sure your disciplinary action, if any, is consistent with how you’ve treated others who’ve committed similar offences. Scrupulously follow your disciplinary procedures and keep detailed records of all actions and decisions.
Finally, and perhaps most importantly, talk to a lawyer, especially if the operator is union and you’re contemplating termination. The stuff above is just general guidance. I’m neither qualified nor legally allowed to give you legal counsel the way a lawyer can.
Going forward, if u have any other urgent situations and want to reach me faster, email me at glennd@bongarde.com. And just to repeat, I am a lawyer but I can’t give u legal counsel. But I may be able to help u analyze the situation. Stay safe. Glenn

[vickyp]

in reply to: Answer for As a essential service are employees expected / allowed to refuse work? If they quit what happens? Halifax, NS #87201

Under Sec. 43(9) of the Nova Scotia OHS Act, employees can’t refuse work if: (a) the refusal puts the life, health or safety of another person directly in danger; or
(b) the danger referred to in subsection (1) is inherent in the work of the employee. It’s hard to analyze how this rule applies to your situation because I don’t know the facts. But you can email me at glennd@bongarde.com and I’ll be happy to discuss it with you.
As for quitting, I don’t know of any law that would ban an employee from quitting. But, again, if you explain the details, like what the service is, I may be able to look into it. glennd@bongarde.com

[vickyp]

in reply to: Answer for In BC, can an employer require an employee to take their vacation leave in a non-unionized environment? #87191

In BC, the employer has the right to authorize the actual timing of vacations as long as the time off is taken within 12 months of the employment anniversary date. Example: Employee starts work March 1, 2019. On Feb 29, 2020, he/she has 12 consecutive months of employment and gets 2 weeks vacation, which he/she must use between March 1, 2020 to Feb. 28, 2021. Vacation days can’t be carried over to the next year. And the employer can’t force the employee to take vacation in units of less than 1 week.
Applying these rules to your situation, yes, I believe the employer can require the employees to use their accrued 2019-2020 vacation as long as it doesn’t require them to take less than a week off at a time. At least that’s my read. I’m going to run this by our payroll expert, Alan McEwen, circle back with u when he responds. Thanks. Glenn

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