[vickyp]

in reply to: Sick Days #91834

There is not a singular definition in any jurisdiction as to what a sick day is and is not. Some companies treat doctor’s appointments as sick days, some treat kid’s illnesses as sick days. The growing trend is to treat vacation days and sick days as a combine PTO. However, with all of this said, you can set a definition in your policy to exclude follow up appointments, dr or dentist appointments, or anything that is a scheduled medical event, and clearly define sick days as an unscheduled absence, to which, any more than 2 consecutive sick days would necessitate a dr’s note.

HR Insider staff

[vickyp]

in reply to: T4A Questions #91777

Can a worker on an open work permit become incorporated in Canada (to work as a T4A)?

In Canada, workers on open work permits are generally allowed to work for any employer in Canada without the need for a Labour Market Impact Assessment (LMIA). However, there are certain considerations to keep in mind regarding becoming incorporated while working on an open work permit.

Here are some points to consider:

Eligibility for Incorporation: Generally, there are no restrictions on individuals on open work permits incorporating a business in Canada. However, it’s essential to ensure that you meet all the legal requirements and obligations for incorporation set by the relevant provincial or territorial government.

Business Structure: When incorporating a business, you’ll need to decide on the appropriate business structure, such as a corporation, partnership, or sole proprietorship, based on your specific circumstances and business goals.

Tax Considerations: As an incorporated individual, you’ll be subject to certain tax obligations, including corporate taxes, which differ from personal taxes. It’s advisable to consult with a tax professional or accountant to understand the tax implications of incorporation and ensure compliance with Canadian tax laws.

Work Authorization: While incorporating a business itself may not necessarily require specific work authorization, engaging in activities related to the business may have implications. If you plan to work for the corporation you’ve incorporated, such as earning income as an employee (T4A income), you’ll need to ensure that your open work permit allows such activities.

Compliance with Immigration Laws: It’s crucial to ensure that your activities, including any work you undertake for the corporation, comply with Canadian immigration laws and the conditions of your open work permit. If you have any doubts or concerns about your eligibility to work or engage in specific activities, it’s advisable to consult with an immigration lawyer or a qualified immigration consultant.

In summary, while workers on open work permits can generally incorporate a business in Canada, it’s essential to consider various factors, including tax implications, work authorization, and compliance with immigration laws, before proceeding. Consulting with legal and tax professionals can help ensure that you meet all requirements and obligations associated with incorporation and employment in Canada.

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If a worker on an open work permit requests to be a T4A BUT they are not incorporated, are they treated as a subcontractor as opposed to a T4A? (Since the employer would pay the incorporated company, and then the owner of that company would pay the worker)

If a worker on an open work permit requests to be paid as a T4A but they are not incorporated, the situation becomes somewhat complex, especially if the employer intends to pay the worker indirectly through a third-party entity, such as a corporation owned by the worker. Here are some key considerations:

Worker Classification: The classification of a worker as either an employee (T4) or a subcontractor (T4A) depends on several factors, including the degree of control the employer has over the worker, the method of payment, the provision of tools and equipment, and the presence of a written contract, among others. Even if the worker requests to be paid as a T4A, the nature of their relationship with the employer will ultimately determine their classification for tax and employment purposes.

Employment Relationship: If the worker meets the criteria of an employee, they should be paid as such (T4). This would involve the employer deducting income tax, Canada Pension Plan (CPP) contributions, and Employment Insurance (EI) premiums from the worker’s earnings and remitting these amounts to the Canada Revenue Agency (CRA) on the worker’s behalf.

Subcontractor Relationship: If the worker meets the criteria of a subcontractor, they should be paid as such (T4A). In this case, the employer would not deduct income tax, CPP, or EI contributions from the worker’s earnings. Instead, the worker would be responsible for reporting their income and paying taxes on it directly to the CRA.

Incorporation: If the worker is not incorporated but the employer intends to pay them indirectly through a corporation owned by the worker, this arrangement could potentially raise questions about the true nature of the employment relationship. The CRA may scrutinize such arrangements to ensure they are not being used to circumvent employment standards or tax obligations.

Legal and Tax Implications: It’s important for both the employer and the worker to understand the legal and tax implications of the chosen payment method. Paying the worker as an employee (T4) entails certain legal obligations and responsibilities for the employer, while paying them as a subcontractor (T4A) may have different implications for both parties.

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Is there a minimum hourly pay rate that T4As must be paid (in Canada, or any provinces)?

In Canada, T4A income typically refers to income earned by independent contractors or subcontractors rather than employees. Unlike employees who are subject to minimum wage laws, there is generally no specific minimum hourly pay rate mandated for T4A income. Instead, the rate of pay for independent contractors or subcontractors is typically determined through negotiation and agreement between the parties involved.

However, it’s important to note that the absence of a minimum hourly pay rate for T4A income does not mean that the payment terms can be arbitrarily set. The payment terms should still be fair and reasonable based on factors such as the nature of the work, industry standards, and prevailing market rates.

Additionally, while there is no minimum hourly pay rate specifically for T4A income, independent contractors and subcontractors are still entitled to receive payment for their services in accordance with the terms of their contract or agreement. Failure to pay for services rendered as agreed upon could lead to disputes or legal issues.

Furthermore, various laws and regulations, such as those related to contract law, tax obligations, and employment standards, may still apply to arrangements involving T4A income. It’s important for both parties involved in such arrangements to understand their rights and responsibilities under the law and to ensure compliance with applicable regulations.

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All of these questions you have are very nuanced and it sounds like you are in a dangerous position between recognizing when someone is and isn’t an employee to work around work permit authorization, other immigration issues, and potential tax implications. Courts often want a very clear arms length between a contractor/sub and company.

HR Insider Staff

[vickyp]

in reply to: What is considered consideration? #91776

Yes, this change in hours should necessitate a new employment contract or at the very least an amendment to an existing one. A general rule of thumb is any change in title, compensation linked to responsibilities, and changes in working hours should be written and signed off.

Consideration in the context of employment contracts refers to something of value that each party exchanges as part of the agreement. In traditional contract law, consideration is necessary for a contract to be legally enforceable. However, in the realm of employment contracts, consideration typically involves more than just monetary exchange.

Here are some common forms of consideration in employment contracts:

Salary/Wages: This is the most common form of consideration in an employment contract. The employer agrees to pay the employee a certain amount of money in exchange for their services.

Benefits: Employers may offer benefits such as health insurance, retirement plans, stock options, or other perks as part of the consideration for the employee’s services.

Job Security: The promise of job security or a certain duration of employment can be considered as part of the consideration. This could be in the form of a guaranteed term of employment or provisions for severance pay in case of termination without cause.

Training and Development: Some contracts may include provisions for the employer to provide training or professional development opportunities to enhance the employee’s skills and knowledge. This can be considered as part of the consideration provided by the employer.

Non-compete Agreements: In some cases, employers may require employees to sign non-compete agreements, which restrict them from working for competitors for a certain period after leaving the company. This restriction is often considered part of the consideration provided by the employer.

Confidentiality Agreements: Similarly, agreements to maintain confidentiality regarding company information or trade secrets may be considered part of the consideration in the employment contract.

In summary, consideration in employment contracts encompasses various forms of value exchanged between the employer and the employee beyond just monetary compensation. It reflects the mutual promises and obligations that form the basis of the employment relationship.

HR Insider Staff

[vickyp]

in reply to: Vacation Pay / Carryover #91775

If you do not allow carryover, then yes, you are required to pay out the earned vacation pay for this and all employees at the end of the year as it is illegal to have a use it or lose it vacation policy in any jurisdiction in Canada. Time can be lost, but money cannot.

HR Insider Staff

[vickyp]

in reply to: Sick Leave #91774

Most organizations have adopted a “more than 2 consecutive days” require a medical note.

If you are going to make a change to your policy, now would also be a good time to look at your attendance policy. You cannot discipline an employee for being ill, but having a clear attendance policy can help you to control capacity.

HR Insider

[vickyp]

in reply to: Not Eligible for Rehire or Do Not Rehire #91711

Yes, you might potentially have the same privacy and defamation risks as you would with giving a bad reference if you made employee records available to somebody that then communicated those back to the rehire.

Our advice would be having a policy that says an employee terminated for cause or abandonment is not eligible for rehire – full stop. You could also include that any previous employee with an unresolved disciplinary action on their previous employment record with the company is ineligible for rehire.

You may not want to make their record available to all hiring managers, especially if it is for a different position, but you can/could communicate that the employee had an unresolved disciplinary action and not get into specifics.

HR Insider staff.

[vickyp]

in reply to: AODA #91679

Yes, both British Columbia (BC) and Quebec have legislation aimed at improving accessibility for individuals with disabilities, similar to the Accessibility for Ontarians with Disabilities Act (AODA) in Ontario.

British Columbia:
In British Columbia, the government has been working on accessibility legislation. As of my last update, BC announced its commitment to introducing accessibility legislation to make BC more inclusive and accessible for people with disabilities. The framework and details of this legislation aim to address various aspects of accessibility in the province, including employment, service delivery, and the built environment. It’s important to check the latest updates from the BC government for the most current information regarding this legislation.

Quebec:
In Quebec, the Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration serves a similar purpose. This legislation focuses on eliminating barriers and promoting accessibility for individuals with disabilities in various areas, including employment, transportation, and access to services and buildings. Quebec’s approach involves both regulatory measures and encouragement of best practices in accessibility.

Both provinces recognize the importance of creating inclusive environments that support the rights and participation of people with disabilities. However, the specific approaches and provisions can vary by province, reflecting local priorities and governance structures. For the most current and detailed information, it’s recommended to consult official government resources or legal databases.

[vickyp]

in reply to: Policy Change Requirements #91675

Updating policies within a business is a critical process that requires careful planning, clear communication, and proper documentation to ensure that all stakeholders are informed and aligned with the new guidelines. Here are some best practices for updating a policy, recording revisions, and communicating these changes to employees:

Planning and Preparation
Identify the Need for Change: Understand why the policy needs to be updated. This could be due to changes in laws, industry standards, company objectives, or feedback from stakeholders.

Review Current Policy: Examine the existing policy in detail to understand its implications and identify areas that need modification.

Consult Stakeholders: Engage with key stakeholders, including department heads, legal advisors, HR, and potentially affected employees, to gather insights and feedback.

Draft Revisions: Based on feedback and identified needs, draft the policy revisions. Ensure the language is clear, concise, and free of jargon.

Documentation and Record Keeping
Version Control: Maintain a version control system for your policy documents. Each revision should have a unique version number, date, and note about the changes made.

Change Log: Keep a detailed change log that includes the date of the change, a description of what was changed, and the reason for the change. This log can be part of the document or maintained separately.

Review and Approval: The revised policy should undergo a thorough review by legal counsel and management. Once reviewed, it should be formally approved by the appropriate authority within the company.

Communication to Employees
Announce the Update: Communicate the policy update to all employees through multiple channels such as email, company meetings, and internal bulletins to ensure wide visibility.

Provide Rationale and Context: Explain why the policy was updated, the goals of the changes, and how it affects employees. Providing context helps in gaining buy-in.

Highlight Key Changes: Clearly outline what has changed from the previous version. If possible, provide a summary of changes for easy reference.

Training and Support: Offer training sessions or workshops if the policy changes require new behaviors or procedures. Ensure that support is available for employees who have questions or need assistance in understanding the new policy.

Accessible Documentation: Make the updated policy easily accessible to all employees. Consider posting it on the company intranet, in employee handbooks, and other relevant places.

Open Feedback Channel: Encourage feedback on the updated policy to gauge understanding, address concerns, and make further adjustments if necessary.

Set a Review Date: Policies should not be static. Set a future review date to evaluate the effectiveness of the policy and make any needed adjustments.

By following these guidelines, businesses can ensure that policy updates are made in a structured, transparent, and inclusive manner, thereby enhancing compliance, and engagement, and ensuring that the organization adapts effectively to changes.

HR Insider Staff

[vickyp]

in reply to: AODA #91674

This checklist outlines the requirements of the customer service standards for organizations that provide goods, services, or facilities to the public in accordance with the Integrated Accessibility Standards Regulation (IASR) under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA).

Policies

□ Develop, implement, and maintain policies regarding the provision of goods, services, or facilities to individuals with disabilities that are consistent with the principles of dignity, independence, integration, and equal opportunity.
□ (Not applicable to small organizations) Document policies, practices, and procedures for providing compliant customer service in writing.
□ (Not applicable to small organizations) Include a statement of organizational commitment describing the company’s goal to meet the needs of individuals with disabilities in a timely manner.
□ (Not applicable to small organizations) Document the organization’s training policy as required under the IASR, including a summary of the content covered and whom it will be provided to and when.

Ensure company policies consider and address the following areas required by the IASR:

Assistive Devices

□ Determine whether there are any assistive devices that could pose a health and safety hazard if used in the workplace. Identify reasonable measures that could be put into place to address this hazard.

Guide Dogs and Service Animals

□ Determine whether service animals are prohibited by law in the workplace or specific areas of the workplace.
□ Where service animals are prohibited, develop measures that can be taken to ensure the customer has access to goods, services, and facilities.

Support Persons

□ If admission fees are charged, determine whether you will charge support persons and how much they will be charged.
□ If support persons are charged admissions, post the fee publicly to ensure they are provided with notice.

Notice of Temporary Disruptions

□ Identify accessibility features or services that people with disabilities rely on in the organization.
□ Determine how you will inform the public if any accessibility features or services are temporarily unavailable.
□ Determine alternative measures you can implement to assist customers with disabilities during a temporary disruption.

Feedback Process

□ Establish a process for receiving and responding to feedback related to the provision of goods, services, or facilities to individuals with disabilities and the accessibility of the feedback process itself.
□ Determine what actions will be taken if a complaint is received.
□ Make information about the feedback process available to the public.

Format of Documents

□ Inform the public that information and documents are available in accessible formats or with communication supports upon request.
□ Be prepared to provide upon request all information or documents in an accessible format or with communication supports in a manner that meets the needs of the individual.

Training

Train employees, volunteers, those involved in the development of company policies, and other persons who provide goods, services, or facilities on behalf of the company on the following:

□ The purpose of the AODA and the requirements of the customer service standards.
□ The Human Rights Code and how it pertains to persons with disabilities.
□ How to interact and communicate with customers with various types of disabilities.
□ How to interact with people with disabilities who use assistive devices, require the assistance of a service animal, or require the use of a support person.
□ How to use company provided equipment or devices that are available at the organization to help customers with disabilities.
□ What to do if a customer with a disability is having difficulty accessing the company’s goods, services, or facilities.

Recordkeeping

□ (Not applicable to small organizations) Maintain training records, including the date the training was provided and how many employees attended.

[vickyp]

in reply to: Mandatory Workplace Policies for BC #91637

In British Columbia (BC), Canada, employers are required to adhere to various mandatory workplace policies to ensure compliance with employment, health and safety, and human rights legislation. These policies help create a safe, respectful, and equitable working environment. Here’s an overview of some key mandatory workplace policies in BC:

Occupational Health and Safety (OHS) Policy: Employers must have an OHS policy that complies with the Workers Compensation Act and the Occupational Health and Safety Regulation. This includes policies on workplace safety procedures, accident reporting, and emergency response.

Workplace Harassment and Violence Prevention Policy: BC employers are required to establish a policy to prevent and address workplace bullying, harassment, and violence, in line with WorkSafeBC regulations.

Workplace Discrimination Policy: In line with the BC Human Rights Code, employers must have a policy that prohibits discrimination in the workplace on various grounds, including race, color, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, and age.

Privacy Policy: Employers must comply with the Personal Information Protection Act (PIPA) in BC, which involves having policies on the collection, use, and disclosure of personal employee information.

COVID-19 Safety Plan: Depending on the current public health guidelines and the nature of the workplace, employers may be required to have a COVID-19 Safety Plan outlining measures to reduce the risk of COVID-19 transmission in the workplace.

Accessibility Policy: While not exclusively mandated, with increasing emphasis on accessibility and accommodation, employers should have policies that address how they will accommodate employees with disabilities, aligning with both federal and provincial legislation.

Leave Policies: Employers should have policies that explain employee entitlements to various types of leave as outlined in the Employment Standards Act, such as annual vacation, sick leave, family responsibility leave, parental leave, and compassionate care leave, ensuring they meet or exceed the minimum standards.

The specific requirements for these policies can vary depending on the size of the business, the industry, and the nature of the work. Employers are encouraged to consult the Employment Standards Branch, WorkSafeBC, and the BC Human Rights Tribunal for detailed guidance on these policies to ensure compliance. Additionally, it’s advisable to seek legal counsel when developing or updating workplace policies to ensure they are comprehensive, up to date, and legally compliant.

[vickyp]

in reply to: One year contract and vacation #91636

In Canada, vacation entitlements are governed by provincial or territorial employment standards legislation, and in some cases, by federal legislation for federally regulated industries. It’s crucial to adhere to the minimum standards set out by the applicable laws when drafting employment contracts, including those related to vacation time.

Here are some key points to consider when addressing vacation time in an employment contract, especially if contemplating a clause that restricts taking vacation during the first year of employment:

Minimum Entitlements: Each province and territory sets minimum vacation entitlements that employers must provide to employees. These entitlements typically accrue over time, often after a year of employment.

Legality of Restrictions: While employees typically accrue vacation time during their first year of employment, they may not be eligible to take this vacation until after the completion of the year, according to most employment standards. However, explicitly stating that an employee is not eligible to take any vacation time during the first year might conflict with statutory minimum standards, depending on the jurisdiction and how the contract is worded.

Accrual vs. Taking Vacation: It’s important to distinguish between accruing vacation time and the ability to take vacation time. Employees accrue vacation time during their first year but may only be allowed to take it after the year ends. This distinction should be clearly communicated in the contract to avoid misunderstandings.

Flexibility and Goodwill: Completely restricting vacation, even if legally permissible, might not be best for employee morale or health. Consider whether there might be flexibility for exceptional circumstances or earned days off.

Consult Legal Advice: Given the complexity of employment laws and the variations between jurisdictions, it’s advisable to consult with a legal professional who specializes in employment law in the relevant province or territory. This will help ensure that the contract complies with all legal requirements and protects both the employer and the employee’s rights.

In drafting the contract, you might consider a clause that explains how vacation time is accrued according to the provincial or territorial standards and specify any company policies regarding the scheduling of vacation time. Be sure to clarify that the employee will begin accruing vacation time upon commencement of employment but that the ability to take this vacation time may be subject to restrictions based on the standard practice within the jurisdiction and your specific organizational policies. Always ensure that these policies comply with the minimum legal standards.

[vickyp]

in reply to: Uniform or Special Clothing #91635

In Canada, legislation and regulations around uniforms and special clothing can vary by province and territory. Generally, employers are permitted to establish dress codes, including requirements for uniforms or special clothing, as long as these codes do not discriminate based on protected grounds under human rights legislation. Regarding whether employers are required to pay for uniforms, cleaning, or replacement, this can differ from one jurisdiction to another.

Some key points to consider:

Employment Standards Legislation: Most provinces have employment standards legislation that outlines the rights and responsibilities of employers and employees, including provisions related to uniforms and special clothing. However, the specifics can vary widely.

Health and Safety Regulations: In some cases, when uniforms or special clothing are required for safety reasons (e.g., protective gear in construction or healthcare settings), provincial health and safety regulations may mandate that employers provide these at no cost to the employee.

Specific Provisions by Province:

Ontario: Employers can require employees to wear a uniform or special clothing. If the employer requires the employee to pay for the uniform, this cost cannot bring the employee’s wage below the minimum wage.
Quebec: The Act Respecting Labour Standards does not specifically address uniforms, but the interpretation of the law tends towards requiring employers to pay for uniforms if they are mandatory.
British Columbia: Employers who require employees to wear special clothing must provide it free of charge unless the employee’s wage, including tips, is greater than twice the minimum wage.
Alberta: The Employment Standards Code does not explicitly cover uniforms. However, if an employer requires an employee to bear the cost of a uniform, this cost should not reduce the employee’s earnings below the minimum wage.

It’s important to consult the specific legislation or regulations in the province or territory in question for the most accurate and up-to-date information. Employment standards offices, legal advisors, or labour unions in the relevant jurisdiction can provide guidance on the specifics of uniform and special clothing legislation.

[vickyp]

in reply to: Change Compensation from Salary to Hourly #91634

It would appear that you have all your bases covered; however, what do you plan to do if the employee doesn’t agree to this change? Is this change required to keep their job? Is there a business reason for making this change?

It could be considered constructive dismissal if the employee has no option but to accept the change; however, the bump is a good mitigation strategy, but it is something to be cautious of.

Ultimately, if the employee signs off and is amenable to the change, you are fairly protected – as you have described it.

HR Insider staff

[vickyp]

in reply to: Job Abondonment #91633

There is no fixed number of days by law to initiate job abandonment; it is contingent upon your communication, internal policies, and undue harm.

You are required to take all reasonable steps to notify the absent employee that there is an attendance issue and that you intend to initiate job abandonment termination with cause proceedings. You must give reasonable notice – which is not easily defined, but courts often see it is in excess of 10 days.

All of this can be avoided with a job abandonment policy (you can download one from HR Insider), but in your current position, we would recommend a courier letter, voice calls/messages, and well-documented communication records before proceeding with the termination.

HR Insider staff

[vickyp]

in reply to: Working in other jurisdictions – WCB\WSIB\CNESST #91632

This is a great idea and the law isn’t exactly clear. We are adding this to our editorial calendar and will produce a know the laws matrix in the next 2 weeks.

HR Insider staff

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