[vickyp]

in reply to: Answer for Providing Accommodation by offering a lower rate of pay #86910

I’m back. Been out of the office and am just catching up with my backlog. I apologize for keeping you waiting and appreciate your patience. That said, I stand by my original response–but with one minor qualification.
As a matter of accommodations required under HUMAN RIGHTS LAWS, there’s no per se rule that a disabled employee be paid full wage for returning to work with modified/light duties. And as u note, since it’s not a work injury, the WCB modified duty rules don’t apply. (And even if they did, I don’t think they address the issue of full salary.)
The one potential hangup is Section 56 of the BC ESA which requires restoring employees who TAKE LEAVE to pre-leave position, deem their employment continuous and give them any raises or benefits boosts they’d have gotten if they hadn’t taken leave. HOWEVER, Section 56 applies only to pregnancy, parental, family responsibility, compassionate care, reservist duty, bereavement and jury duty leave. And from the tenor of your Q, I take it that none of this applies to the employee in your particular situation.
Hope that helps and again I’m sorry for the long long long interlude. Glenn

[vickyp]

in reply to: Answer for Termination of unpaid and/or paid co-op and/or intern #86909

You could avoid paying termination notice under Ontario ESA if one of the following applies:

1. The intern/volunteer has less than 3 months’ continuous employment–in which case employment would be probationary
2. The intern/volunteer has 3 or more months’ continuous service but the employment qualifies for one of the internship exemptions of Section 5.

RELEVANT ONTARIO ESA PROVISIONS
1. Probationary Basis:
No termination without notice
54 No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer,
(a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or
(b) has complied with section 61.  2000, c. 41, s. 54.

2. Volunteer/Intern Exemption
Other exceptions
(5) This Act does not apply with respect to the following individuals and any person for whom such an individual performs work or from whom such an individual receives compensation:
1. A secondary school student who performs work under a work experience program authorized by the school board that operates the school in which the student is enrolled.
2. An individual who performs work under a program approved by a college of applied arts and technology or a university.
2.1 An individual who performs work under a program that is approved by a private career college registered under the Private Career Colleges Act, 2005 and that meets such criteria as may be prescribed.
********
Hope that helps. Glenn

[vickyp]

in reply to: Answer for pay range matrix #86908

What do you mean by a “matrix”? A software program? A spreadsheet? Something else? Once I nail down what you need, I may be able to help you find it. Thx. Glenn. glennd@bongarde.com, if you want to reach me directly.

[vickyp]

in reply to: Answer for Providing Accommodation by offering a lower rate of pay #86907

As a general accommodations principle, I don’t believe full wage is necessarily required but there may be Human Rights, ESA and/or WCB guidelines in play that I don’t know about. Can you tell me which jurisdiction you’re in (or subject to) so I can look it up? You can contact me directly at glennd@bongarde.com or 203 354-4532 if you want to speed things up.

[vickyp]

in reply to: Answer for hiring-a-grad-student #86906

My knowledge of immigration laws is, I fear, very limited. But I took the following directly from the federal government’s website: 
You can hire eligible students while they study or after they graduate.
Study permit holders may be eligible to work off campus without a work permit as soon as they begin their studies in Canada.
These students who are eligible may work for any eligible Canadian employer

• for up to 20 hours a week while class is in session and
• full-time during scheduled breaks.

To qualify, students must:

• have a valid study permit
• be a full-time student
• be enrolled at a designated learning institution at the post-secondary level or, in Quebec, a vocational program at the secondary level and
• be studying in a program that:
  • is academic, vocational or professional training
  • leads to a degree, diploma or certificate
  • is at least six months long.

Students must make sure they meet these criteria and apply for a Social Insurance Number.
As an employer, you should make sure the student you hire has a valid study permit. You may want to ask the student for a letter of enrolment to confirm that they are studying full-time in an eligible program at a post-secondary school (or a vocational program at the secondary level in Quebec).
Post-Graduation Work Permit Program
Foreign students who have completed a program of at least eight months at an eligible Canadian school may apply for a Post-Graduation Work Permit. This permit lets them work for any eligible employer in Canada for up to three years, depending on the length of their study program.

• It is up to the foreign worker to apply for a work permit.
• These permits are open work permits. They let the student to work for any eligible employer in Canada.
• A Post-Graduation Work Permit can last up to three years, depending on the length of the study program.

Students with work experience may be eligible to apply for permanent residence through Express Entry.
Students, with or without work experience, may also be eligible for Provincial Nominee Programs.
******
Me again. Notice that there’s no mention of local recruiting. HOWEVER, under Section 209.2 of the Immigration & Refugee Protection Regs, when hiring a foreign worker with a work permit:

• • • (ii) the employer must comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works,

Some provinces do require employers to make and be able to document that they made efforts to recruit locals for a position before offering it to a foreign student. Since I don’t know which jurisdiction you’re in, I can’t tell you if that requirement applies in your situation. 
Again, I want to stress that I don’t know much about immigration law. And even if I did, this is just a personal opinion that is in no way a substitute for advice of counsel with experience in immigration laws. Still, I hope it helps. Glenn Demby 203 354-4532

[vickyp]

in reply to: Answer for Notice Entitlement #86905

From what we can see, where an employee has truly resigned from a full-time position and then asked to be re-hired on a part-time basis, it would be deemed two separate employments. The only notice requirements related to the subsequent part-time employment would stem from that employment itself and not the predecessor full-time arrangement.
Some jurisdictions do have language in their ESA about the gap between sequential employments; but I don’t see anything like that in the BC ESA.
However, there’s one more factor to consider, namely, the dynamics and negotiation of the transition from full-time to part-time. Thus, if the employee offered to resign on condition that he/she be hired on a part-time basis, the relationship might be seen as one continuing rather than two distinct employment relationships. In either case, you should probably include clear language to the effect that the part-time arrangement is a separate employment relationship not related to the previous full-time employment relationship and have the employee acknowledge that all claims in regard to the full-time employment have been resolved for good and proper consideration. You’ll need counsel to draft you up something you can use.
Thanks for the interesting Q and I hope we gave you some help–even if it took a while to do so. Glenn

[vickyp]

in reply to: Answer for Bill 148 – On Call Pay Changes #86904

NO re: managers and supervisors; MAYBE re: other staff who are currently covered by ESA.
Explanation: Generally speaking, Bill 148 expands the rights and benefits of workers the ESA already covers but not the scope of who those people are. In other words, managers and supervisors who weren’t covered by the ESA before are not covered now that Bill 148 has taken effect.
But the on call pay changes are a little more subtle. They don’t apply to a supervisor/manager not covered by the ESA but they may make certain covered workers who weren’t entitled to on call pay under the previous rules entitled to it now. Let me explain:
Before: On call pay was due to workers required to present themselves at work and end up working less than 3 hours
After Bill 148: Eligibility for on call pay has expanded to include workers who are on-call or scheduled to work and available to work at least 3 hours and who:
>Are called to work but work less than 3 hours; OR
>Aren’t called to work, such as when their shift is cancelled within 48 hours* before it’s due to start unless cancellation is due to circumstances beyond employer’s control

(*48-hour cancellation rule doesn’t apply if the cancellation is weather-related and work is weather-dependent)
Best way to think of it is a change NOT in which positions are eligible for on call pay but in the circumstances under which workers covered by the ESA qualify for it. Hope that helps. It sounds kinda’ complicated when you explain it but it’s actually fairly simple and straightforward. Glenn 203 354-4532

[vickyp]

in reply to: Answer for Customer Contract #86903

Point of clarification: I assume you’re talking about  constructive dismissal claims by the employee against the employer, rather than the customer. In other words, the concern is that if the employee were removed for poor performance, he/she may claim adverse impact on his/her employment justifying constructive dismissal.
The basis for constructive dismissal is unilateral imposition of an unfavorable change or term of employment by the employer. So, if I have an accurate read on the situation and what you’re asking, I’d say that drawing up a clear and fair performance clause and notifying affected employees of its existence may help a bit. A more effective way to insulate against constructive dismissal risk, IMHO, would be to take the extra step and secure the employee’s actual agreement to the clause. Such agreement, as long as it’s fairly negotiated, would take away the argument that the change was unilaterally imposed by the employer.
Please understand that this is just a personal opinion and not a substitute for legal counsel. So if significant business interests are on the line, talk to a lawyer before making a decision. Glenn

[vickyp]

in reply to: Answer for Notice Entitlement #86902

Working on it. Will get back to you as soon as I finish the research.

[vickyp]

in reply to: Answer for Physically Demanding Work #86901

Thanks Glenn. This is helpful.
I had a follow up questions but realize it’s still recommended to talk to counsel.
Is an employee legally required to disclose a disability if it is preventing them from carrying out the duties of their job? There was a recent article from Global News that asks that question and the thinking is it may be required.
Can we request an employee take a medical exam to determine if he is disabled? Our business is located in Ontario.

[vickyp]

in reply to: Answer for Notice Entitlement #86900

Me again. My expert advises me that as a matter of common law, i.e., case law rather than ESA, if the employee resigned from full-time employment and then was rehired on a part-time basis, that’s 2 separate employments.
The problem is that the ESA laws of some jurisdictions treat uninterrupted service time as continuous employment for purposes of termination notice. In that case, notice would be required for the previous service.
Bottom Line: I need to know which province you’re in (or if you’re federally regulated) to determine what the rule would be in your situation. So please get back to me on that as soon as you can. Thx. Glenn. It may be quicker to relay the info directly via glennd@bongarde.com or phone 203 354-4532.

[vickyp]

in reply to: Answer for Notice Entitlement #86899

That’s a great Q. I’m going to call in the heavy artillery–my outside expert–and get back to you. I promise to keep your identity confidential. Would also hope to know which province you’re in (or whether you’re federally regulated). Thanks, and I’ll be back in touch in a few days.

[vickyp]

in reply to: Answer for Physically Demanding Work #86898

If he’s not disabled in any way, the employee would not be entitled to accommodations and termination would not be disability discrimination.
BUT THAT’S A BIG “IF”
How do you KNOW he’s not disabled? Have you asked him? Has he undergone a medical exam? As employer, you need to make such a determination–and document that you did so–before firing an employee, especially when the grounds for termination is failure to perform the physical demands of the job. You can bet that this will be the first thing his lawyer will ask him if he seeks counsel after getting his pink slip.
Another discrimination risk is that he may be protected on a grounds other than disability, e.g., race, religion, age, sexual orientation, etc.
Bottom Line: While it looks on the surface like you can proceed with the termination, there are definitely risks that you need to address. Above all, talk to counsel. While I hope this response helps, keep in mind that  it’s just a general opinion based on a limited knowledge of the facts and is in no way substitute for the advice of counsel. Hope this helps. Glenn Demby, 203 354-4532

[vickyp]

in reply to: Answer for Maternity leave #86897

Absolutely yes. ESA-required maternity/parental leave counts toward service time at least for purposes of ESA rights and benefits accrual. That same basic rule applies not just in BC but every jurisdiction, although there may be minor differences from province to province. Here’s the relevant language from the BC ESA statute:
Employment deemed continuous while employee on leave or jury duty
56  (1) The services of an employee who is on leave under this Part or is attending court as a juror are deemed to be continuous for the purposes of
(a) calculating annual vacation entitlement and entitlement under sections 63 and 64, and
(b) any pension, medical or other plan beneficial to the employee.
(2) In the following circumstances, the employer must continue to make payments to a pension, medical or other plan beneficial to an employee as though the employee were not on leave or attending court as a juror:
(a) if the employer pays the total cost of the plan;
(b) if both the employer and the employee pay the cost of the plan and the employee chooses to continue to pay his or her share of the cost.
(3) The employee is entitled to all increases in wages and benefits the employee would have been entitled to had the leave not been taken or the attendance as a juror not been required.
(4) Subsection (1) does not apply if the employee has, without the employer’s consent, taken a longer leave than is allowed under this Part.
(5) Subsection (2) does not apply to an employee on leave under section 52.2.

[vickyp]

in reply to: Answer for Personal Emergency Leave #86896

We cover changes to PEL in our broader analysis of Bill 148. (There’s a big chart summarizing the changes.) But here’s a quick overview:
PEL existed before (under Section 50 of the Ontario Employment Standards Act); but Bill 148 changes Sec. 50 to make PEL more generous for employees. 3 changes:

1. BEFORE: PEL was required at workplaces with 50 or more employees; BILL 148: Now PEL is required at ALL workplaces
2. BEFORE: Employees had 10 days of PEL; BILL 148: Employees still have 10 days but now at least 2 of them MUST BE PAID
3. BEFORE: Employers could require employees to provide a doctor’s note certifying need for PEL; BILL 148: Employers can still demand evidence of need for PEL but CAN’T insist on a doctor’s note

All of the previous PEL rules remain unchanged, e.g., with regard to

• What injuries, illnesses and personal emergencies justify employee’s taking PEL
• Employee obligations to notify employers when they take PEL
• PELs taken on public holidays, ETC.

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