[vickyp]

in reply to: Answer for Employee Mental Health Support/Program #87163

I’m sorry, I’m not sure I understand the Q. Are you asking what a supervisor should do if an employee admits to having mental issues? I’ll assume so.
Yes, the employee would be entitled to accommodations to the point of undue hardship. But the accommodations process should be conducted at a management, rather than supervisor level. So, the supervisor needs to report the information to HR/management. The problem is that under privacy laws, the information is personal health information that can’t be disclosed without consent. That means the supervisor needs to ask the employee for consent. In so doing, the supervisor should make it very clear why he/she’s disclosing the info, to whom the disclosure is being made and, above all, the purposes of the disclosure, namely, to initiate the accommodations process and get the employee the appropriate help.
If the employee refuses to consent, things get tricky. My advice (which IS NOT LEGAL COUNSEL) would be for the supervisor to try and keep the info to him/herself and only report it when and if it becomes a significant safety or performance issue. The supervisor might also be in a position to prevent that from happening by remaining sensitive to the employee’s situation and taking steps to help him/her work through any work-related problems that arise.
Hope this is what you were looking for. Glenn

[vickyp]

in reply to: Answer for Unable to reach employee on medical leave #87162

You’d be surprised how many times that Q comes up. At some point, you can consider an AWOL employee to have abandoned the job and terminate his/her employment. The hard part is figuring out when.
The usual standard is that the employee must demonstrate a clear and unequivocal intent to abandon the job. But when employees on leave go underwater, it becomes a matter of reasonableness. First Q: When did the employee originally say he was coming back? If he did give a specific date and that date has passed, you have a stronger case for reasonableness. And the fact that he was with you only 3 months also minimizes the amount of time you need to wait before reasonably considering the job abandoned.
But it’s not just time. You must also be able to prove that you took reasonable steps to reach the employee and find out if he was coming back. Sounds like you’ve been doing that. Find out if anybody else at your organization has spoken to or knows how to reach the employee.  Very importantly, keep detailed records of all attempts to make contact, including time, date, method and results. And if you decide to pull the plug, send written notice explaining your reasons to employee’s last known address.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for ROE – Shortage of work or Quit #87167

From our payroll guru, Alan:
It sounds a little harsh, but the correct answer is quit. Section 33 of the EI Act.
Glenn again: Here’s the statutory  provision Alan refers to:
Disentitlement — anticipated loss of employment

• 33 (1) A claimant is not entitled to receive benefits if the claimant loses an employment because of their misconduct or voluntarily leaves without just cause within three weeks before
  • (a) the expiration of a term of employment, in the case of employment for a set term; or
  • (b) the day on which the claimant is to be laid off according to a notice already given by the employer to the claimant.
• Duration of disentitlement
  (2) The disentitlement lasts until the expiration of the term of employment or the day on which the claimant was to be laid off.

Hope that answers your Q. Glenn

[vickyp]

in reply to: Answer for Compensation requirements when unable to leave the workplace #87161

Wow. That’s the first time I’ve ever been asked that Q.
First, the employee would be entitled to be paid for any WORK he/she does after the shift. The basic rule is that employers must compensate employees for the time they require OR PERMIT an employee to work.
But there’s nothing in the LSA or Regs about employees staying in the premises during an emergency without actually working. I don’t think any of the other jurisdictions address this situation either. Personally, I think the situation is more analagous to a lodging or residency and that, if anything, the employee should compensate the employer for letting him/her stay on the site.
Do any of our other users have any thoughts or insights on this? If so, please respond to this thread or, if you’re shy, me personally at glennd@bongarde.com.
Thx for the Q and I’ll get back to you if I learn anything else. Glenn

[vickyp]

in reply to: Answer for Senior Employees & Retirement #87160

Suggest you attend our upcoming webinar on this topic in April. Here’s also a nice piece we did for HRI: https://www.bongarde.com/best-practices-10-tips-for-managing-an-aging-workforce/
Here are some outside sources to check out:
https://open.alberta.ca/dataset/2fae2364-63f2-4a69-aa32-fd8d43bf22c4/resource/8eb533ec-b07f-464a-ba43-8d22ee898dcd/download/promoting-the-labour-force-participation-of-older-canadians.pdf Scroll down to p. 30
https://alis.alberta.ca/media/2894/agingworkforce.pdf
https://www.canada.ca/en/employment-social-development/corporate/seniors/forum/older-worker-participation.html
http://www.ageingatwork.eu/resources/a-guide-to-good-practice-in-age-management.pdf
Hope this helps and LMK if you want more info on the webinar. Glenn

[vickyp]

in reply to: Answer for relocation of role due to shortage of work in second location in same city #87159

The principle liability risk is breach of contract. Yes, probationary employees do have contractual rights. Whether you are, in fact, in breach all depends on the terms of your probationary agreement, particularly with regard to relocation and changes to the agreement.
You may also be liable for wrongful dismissal. Unlike a full-time employee, you don’t need just cause to terminate a probationary employee without notice; all you need is lack of suitability. However, failing to accept significant and unfavourable changes would most likely NOT constitute lack of suitability. And if the employee accepts the new terms, he/she may have a claim for constructive dismissal, which arises when an employer makes major and adverse changes to the employment without the employee’s consent. You can avoid both risks by offering the employee a moving bonus or some other additional consideration for accepting the change. In addition, the fact that the employment is probationary and the employee isn’t entitled to expect as much as a full-timer, the extent of your potential damages in the event of liability would be relatively limited.
Hope this helps u handle what is really a tough situation. Glenn

[vickyp]

in reply to: Answer for Temporary Employee #87158

Yes, employees can be hired on a casual basis, i.e. the employer offers a shift and it may or may not be accepted by the employee. There is no obligation to pay casual employees unless they accept and work a shift.
You can have an employment contract that does not have an end date, but then the 90 probationary period in the AB employment standards would apply and notice would be required after 90 days.
You can have a fixed term of up to 12 months. No notice would be required, so long as the person does not continue working past the 12 month threshold.
Such fixed term contracts can be repeated, but the problem is that if this is a pattern that repeats too often, there is the risk that these will be seen as one continuous period of employment, subject to notice requirements.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for In house disability policy regarding continuation of health & dental while on disability #87157

I don’t believe so insofar as ESC doesn’t require paid LTD or STD or dental coverage. However, you do need to check that the new coverage limitations don’t violate any of your obligations under:

• A collective agreement with the affected employees;
• An individual employment contract with any of the affected employees; or
• The terms of the actual plans.

Hope that helps. Glenn

[vickyp]

in reply to: Answer for Delegation #87156

I’ll have my paralegal look it up and get back to you. Just kiddin’. Get it, delegate–I’ll have my paralegal do it. . . Ok, it’s not funny. I don’t know of anything I can personally vouch for. As a lawyer, delegation doesn’t fall into my sweet spot. But here are some decent resources I found.
https://www.paychex.com/articles/human-resources/how-to-delegate
https://bizcoachinfo.com/archives/12023
https://hr.smcgov.org/how-delegate-quick-guide-supervisors
https://blog.accuchex.com/delegation-management-best-practices
http://www.wright.edu/~scott.williams/LeaderLetter/delegating.htm
Check this out: An actual HR delegation policy. https://www.jcu.edu.au/policy/hr-staff-development/human-resources-delegation-policy-17-1
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Are we legally allowed to direct-hire temporary agency employees, and soon after conduct seasonal layoff with our longer-term staff, assuming it is not due to discrimination of any protected grounds? #87155

Here’s Alan’s terse and I hope helpful response. Please feel free to follow up if you need further clarification.
***
Then the employer right to a seasonal layoff has to be an explicit term of the conditions of employment on hire.

 

[vickyp]

in reply to: Answer for Are we legally allowed to direct-hire temporary agency employees, and soon after conduct seasonal layoff with our longer-term staff, assuming it is not due to discrimination of any protected grounds? #87154

I’m going to run this one past our payroll expert and get back to you as soon as I can.

[vickyp]

in reply to: Answer for Medical Leave accommodation #87153

Legally, you must accommodate the employee to the point of undue hardship. Modification of work hours is probably the most common accommodation made for employees returning to work from a medical absence. If 4 days per week is undue hardship–and that’s a big IF–you need to consider alternatives. The best way to explain this is to go directly to the horse’s mouth–the horse in this case being the Ontario Human Rights Commission. Here’s what they say on this topic. Go to http://www.ohrc.on.ca/en/policy-ableism-and-discrimination-based-disability/8-duty-accommodate#_edn159 if u want to read this directly or see the entire Accommodations guidance publication. Hope this answers your Q.
******
8.3.2.1 Alternative work
There is a duty to accommodate a person in their pre-disability job wherever possible. However, it is recognized that this may not always be feasible. Human rights case law recognizes that employers have a duty to consider temporary and permanent alternative work for people who can no longer remain in their position even with accommodation.[158] This duty includes diligently investigating positions and proposing job options[159] that are within the person’s functional limitations.[160]
Accommodation may include job restructuring, job bundling,[161] reassignment to open positions, or retraining for alternative positions if that would not constitute undue hardship for the employer. Employers should canvass available posts that allow the employee to maximize his or her skills and abilities.[162]
Temporary alternative work
The term “alternative work” means different work or work that does not necessarily involve similar skills, responsibilities and compensation.[163] Temporary alternative work may be an appropriate accommodation either in a return to work context, or in a situation where a disability renders an employee temporarily unable to accomplish the pre-disability job. Temporary alternative work can be an appropriate accommodation to assist a person where the nature of the disability and its limitations are temporary or episodic.
Permanent alternative work
When an employee asks to be reinstated in a previous position, the employer must make the appropriate inquiries to assess whether the employee is fully able to carry out the essential functions of the job. The returning employee must be given an opportunity to prove his or her ability to perform the pre-disability job.[164] Where the employee can no longer perform the pre-disability job, with or without accommodation, the employer should consider permanent alternative work.[165]
The duty to accommodate may include some workplace reorganization.[166] For example, it may require employers to consider placing an employee with a disability into a vacant position without requiring that person to compete for the position.[167] The vacant position must be vacant within a reasonable amount of time, but the employer is not required to “promote” the employee. To the greatest extent possible, the vacant position must be equivalent to the current one. When reassignment takes place, the person must be qualified for the reassigned position.

Example: An employee with a disability returns from a disability leave and is considered for alternative work. There are two other positions available at the company. He is generally qualified for one of these positions, but does not know how to use a computer program that is required to do the essential duties of this job. The employer sends the person on a training course to learn the computer program. The employee is then qualified for the position.

The duty to accommodate does not require the employer to completely alter the essence of the contract of employment, that is, the employee’s duty to perform work in exchange for remuneration.[168] The duty to accommodate does not require an employer to provide “make work” or “to create a job that is not productive or that, in the employer’s view, does not need to be done.”[169] Nor is an employer required to employ two employees to do the job of one.[170] In the final analysis, the employee must be able to perform a useful and productive job for the employer.[171]
8.3.2.2 Return to work
Accommodating a person who has been absent from work may involve any of the above forms of accommodation but also raises unique issues. People who return to work after an absence related to a Code ground are protected by the Code.[172] They generally have the right to return to their original job (the pre-disability job). Both employers and unions must co-operate in accommodating employees who are returning to work. Accommodation is a fundamental and integral part of the right to equal treatment in the return to work context.[173]

Example: In one case, a woman who had been off for several months for a series of surgeries informed her employer that she planned to return to work. The HRTO found that her employer discriminated against her when it required her to provide a “clean bill of health,” tried to require her to sign a letter agreeing to a finite cap on future medical leave, and asked her to complete a retraining period before it would consider whether she could return to work. The HRTO affirmed that the woman was entitled to her previous job. The employer acted in a discriminatory way when it merely offered to consider rehiring her.[174]

The right of people with disabilities to return to work exists if the worker can fulfil the essential duties of the job after accommodation short of undue hardship.[175] If a person cannot fulfil the essential duties of the pre-disability job, despite the employer’s effort to accommodate short of undue hardship, the employer still has an obligation to canvass alternative work possibilities, as outlined above. Ultimately, as stated above, the person with a disability must be able to perform a useful and productive job for the employer.
Under the Code, there is no fixed rule as to how long an employee with a disability may be absent before the duty to accommodate has been met. This will depend on the ability of the employee to perform the essential duties of the job considering the unique circumstances of every absence and the nature of the employee’s condition, as well as circumstances in the workplace.[176] Also important is the predictability of the absence, in terms of when it will end, if it may recur and the frequency of the absence. The employee’s prognosis and length of absence are also important considerations. It is more likely that the duty to accommodate will continue with a better prognosis, regardless of the length of absence.
The duty to accommodate does not necessarily guarantee a limitless right to return to work.[177] On the other hand, a return to work program that relies on arbitrarily selected cut-offs or that requires an inflexible date of return may be challenged as a violation of the Code.

Example: In a case that dealt with a modified work program that featured a “90-day” rule that deemed temporary restrictions of more than 90 days to be permanent, the HRTO stated: “A general employment-related human rights principle is that when an employee is temporarily unable to perform a job because of disability, the employer is obliged to keep the employee’s job available so that the employee can return to it when the disability improves to the point the employee can return to the job. This is a form of accommodation of the person’s disability related needs. The obligation to keep the employee’s job available does not extend indefinitely, and is limited by undue hardship involved in keeping the job available, but it generally extends for more than three months.”[178]

Ultimately, the test of undue hardship is the relevant standard for assessing return to work programs.

.

[vickyp]

in reply to: Answer for Reimbursable expenses #87152

Here’s Alan’s definitive response:  No, reimbursing an employee for expenses owed would not be considered part of termination pay for any purposes, including for ROE reporting.
****
Hope that answers your Q. Happy New Year. Glenn

[vickyp]

in reply to: Answer for Reimbursable expenses #87151

As you know, Section 60(1)(a) of ESA bans employers from reducing an employee’s wage during the notice period (or in the payment in lieu thereof if employee doesn’t work during notice period). That would ban applying expenses owed to the employee from the notice amount, UNLESS that’s how the employee’s salary is structured. I’m going to run this past my payroll guru, Alan; but I don’t know when or if he’s working this week. Will get back to you as soon as I hear from him. Happy New Year if we don’t speak until then. Glenn

[vickyp]

in reply to: Answer for Early Return from Maternity Leave #87150

Here’s Alan’s response: Yes, subject to the requirement to provide 4 weeks written notice.
Glenn again:  Alberta ESC Sec 53(1) says employee must provide at least 4 weeks’ notice before end of leave of her return date. Sec 53(4) says she’s not entitled to resume working until that notice date. In other words, you don’t have to let her return to work sooner if you don’t want to. Hope that helps. Feel bad I kept u waiting so long. Glenn
Alberta ESC
53(1)  Subject to section 46(2), an employee must give the employer at least 4 weeks’ written notice of the date on which the employee intends to resume work and in any event must give notice not later than 4 weeks before the end of the leave period to which the employee is entitled or 4 weeks before the date on which the employee has specified as the end of the employee’s leave period, whichever is earlier.
(2)  If an employee has given notice that she intends to resume work on a date that is before the end of the 6‑week period referred to in section 46(2), the employee is entitled without further notice to an additional period of leave sufficient to meet the requirements of section 46(2).
(3)  The additional period of leave referred to in subsection (2) is to be charged first against any remaining maternity leave to which the employee is entitled and then against parental leave, and if it is charged against parental leave the amount of parental leave referred to in section 50 is reduced accordingly.
(4)  An employee is not entitled to resume working until the date specified in the written notice referred to in subsection (1) or the end of the additional period referred to in subsection (2), as the case may be.
(5)  An employee must resume work on the date specified in the written notice or immediately following the end of the additional period, as the case may be, and if the employee fails to return to work on that date the employee is not entitled to resume work subsequently unless the failure to return to work resulted from unforeseeable or unpreventable circumstances.
(6)  If an employee fails to provide at least 4 weeks’ notice before the end of the leave period to which the employee is entitled, the employee is not entitled to resume work unless the failure to provide the notice resulted from unforeseeable or unpreventable circumstances.

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