[vickyp]

in reply to: Employee with Complex Mental Health Diagnosis (bipolar) #90913

In most cases, it is not appropriate to disclose an employee’s medical diagnosis, including a mental health diagnosis, to their manager without the employee’s explicit consent. Employee medical information is considered sensitive and private, and sharing such information without the employee’s consent may violate privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA) in the United States or Personal Information Protection and Electronic Documents Act (PIPEDA) in Canada. Additionally, disclosing such information without consent could be considered unethical and may create a breach of trust between the employee and the employer.
Here are some steps you can take to support your employee while respecting their privacy:
Encourage Open Communication: Let your employee know that you are there to support them and that they can come to you with any concerns or needs related to their mental health.
Maintain Privacy: Assure your employee that their medical information will be kept confidential and will not be shared with their manager or colleagues without their consent.
Offer Resources: Provide your employee with information about the company’s Employee Assistance Program (EAP) or other mental health resources that are available to them.
Manager Training: While you cannot disclose the specific diagnosis to the manager without consent, you can provide the manager with general training on how to support employees with mental health challenges. This training should focus on:

• Promoting a stigma-free and inclusive workplace culture.
• Encouraging open communication and active listening.
• Identifying signs of distress or changes in behavior.
• Encouraging employees to seek help when needed.
• Making reasonable accommodations if necessary.

Reasonable Accommodations: Work with your employee to determine if any reasonable accommodations are needed to support them in their role. These accommodations should be based on the employee’s specific needs and may include flexible work hours, workload adjustments, or other support.
Remember, your primary goal is to create a supportive and understanding workplace for your employee. Respect their privacy, provide the necessary support, and ensure that your organization’s policies and actions align with applicable laws and regulations.

Additional Resources
Mental Health And The Duty To Accommodate
Mental Health Policy

[vickyp]

in reply to: Promotion/Job Changes – Employment Contracts #90717

9 Things to Include in Your Children in the Workplace Policy
Bringing Children to the Workplace Policy

[vickyp]

in reply to: Promotion/Job Changes – Employment Contracts #90707

Employment contracts are not always required, but they are highly recommended to outline the terms and conditions of employment. A well-drafted employment contract should clearly state the terms of employment, including job title, duties, compensation, working hours, benefits, and any changes to these terms due to promotions or job changes. When an employees role changes, you should amend the contract to reflect these changes and get the employees signature so you are protected against any constructive dismissal claims around the changing roles and duties.

[vickyp]

in reply to: Employee Brings Child (18) to Work #90699

The appropriate course of action when an employee brings a child to work can vary depending on company policies, the nature of the job, and local regulations. Here are some general guidelines on how to handle such situations:
1. Company Policies: First and foremost, check your company’s policies and guidelines regarding children in the workplace. Many companies have specific rules about this. Some may prohibit children from the workplace entirely, while others may allow it under certain circumstances.
2. Supervisor’s Discretion: In many cases, the supervisor or manager has some discretion in handling such situations. They may need to assess the specific circumstances and the impact on the workplace.
3. Safety and Distraction: Safety is a primary concern. If the presence of a child poses a safety risk, such as in a manufacturing or construction setting, it’s typically not allowed. Additionally, if the child’s presence is causing significant distractions or disruptions, the supervisor may address this with the employee.
4. Alternative Arrangements: Some employers may allow employees to bring children to work in cases of emergency or if alternative childcare arrangements have fallen through. In such cases, the child may be required to stay in a designated area, like an office or a break room, and not disrupt the work environment.
5. Telecommuting: If the employee’s job allows for telecommuting, the supervisor may consider allowing the employee to work from home for the day to avoid the issue altogether.
6. Local Regulations: Be aware of any local labor or employment laws that may impact your decision. Some jurisdictions have regulations about bringing children to the workplace, and you should ensure you are in compliance with these laws.
7. Temporary Leave: In some cases, the employee may be required to take paid or unpaid leave if bringing a child to work is not feasible and no other childcare arrangements can be made.
8. Clear Communication: It’s important for both the employee and the employer to maintain open and respectful communication about such situations. If the employee has a legitimate reason for needing to bring a child to work, it’s important to consider their situation and try to find a solution that accommodates both the employee’s needs and the company’s operational requirements.
Ultimately, the specific response will depend on your company’s policies and the unique circumstances of the situation. It’s important to be flexible and understanding while also ensuring that work can continue without significant disruptions or safety concerns.

[vickyp]

in reply to: After birth parent received first EI payment #90360

The requirement for a birth parent to submit an application to their employer and provide a copy of their latest Employment Insurance (EI) claim page is likely related to the process of parental leave or maternity leave, which is a common benefit in many countries. Here’s why employers may request this information:
1. Compliance with Employment Standards: Many countries have employment standards and regulations in place that require employers to provide certain benefits to employees during periods of parental leave, such as job protection and continued benefits coverage. To ensure compliance with these regulations, employers may ask for documentation from employees to confirm their eligibility for such benefits.
2. Coordination of Benefits: In some cases, employers offer additional benefits to employees during parental leave, such as top-up payments or continuation of certain benefits (e.g., health insurance). The information provided by the employee helps the employer determine the appropriate level of support and benefits to provide during the leave period.
3. Record-Keeping: Employers maintain records of employee absences, including leaves of absence. By having documentation of an employee’s EI claim, the employer can accurately track and document the employee’s leave status and eligibility for various benefits.
4. Communication and Planning: Providing this information to the employer allows for better communication and planning. Employers can anticipate employee absences, make necessary work arrangements, and ensure a smooth transition during the employee’s leave.
5. Tax and Payroll Considerations: The information may also be required for tax and payroll purposes. Employers may need to adjust payroll deductions or tax withholding based on the employee’s EI payments and leave status.
It’s important to note that the specific requirements and processes may vary depending on the jurisdiction, the employer’s policies, and the legal regulations in place.

[vickyp]

in reply to: Employer obligation when company closes every winter for a salary employee? #90358

The obligations of an employer regarding a seasonal employee who decides not to work during the winter months can depend on various factors, including the terms of the employment contract, applicable labor laws, and any collective bargaining agreements that may be in place. Here are some considerations:
1. Employment Contract: The terms of the employment contract between the employer and the employee are crucial. If the contract specifies that the employee is expected to work year-round or provides details about the seasonal nature of the employment, it can guide the obligations of both parties during the winter months.
2. Salary and Compensation: If the employee is paid a fixed salary, they may be entitled to that salary even during the winter months if it’s specified in their contract or if it’s a common practice in the industry.
3. Seasonal Employment: Given that the employee has 18 years of seniority and has been working seasonally in this manner, it may be considered a longstanding and accepted practice. In such cases, the employer may have an obligation to offer the employee their seasonal position when the company resumes operations in the spring.
4. Legal Requirements: Employment laws and regulations can vary by jurisdiction, so it’s essential to consult the specific labor laws that apply in your area. Some jurisdictions have laws that provide protections to seasonal workers, including rules about layoffs and rehiring.
5. Collective Bargaining Agreements: If the employee is part of a union and covered by a collective bargaining agreement, the terms of the agreement may dictate the rights and obligations of both the employer and the employee during the winter months.
6. Communication: It’s advisable for the employer to maintain open communication with the employee regarding their intentions for the winter months and to address any concerns or expectations in advance.
7. Termination and Rehire: If the employee decides not to work during the winter months, and there are no contractual or legal obligations to keep them on salary or to guarantee their position, the employer may treat this as a voluntary temporary layoff or separation. In such cases, the employer may have the right to rehire the employee when the seasonal work resumes in the spring, subject to any applicable rules and regulations.

[vickyp]

in reply to: Vacation Pay Salary vs. Hourly #90356

When transitioning employees from hourly to salary, it’s important to understand how vacation pay works under the Ontario Employment Standards Act (ESA) and how it should be incorporated into the salary structure. In Ontario, vacation pay is a statutory entitlement for employees, and it’s usually expressed as a percentage of the employee’s earnings. Here’s how it typically works:
1. Accrual of Vacation Pay: Under the ESA, employees earn vacation pay as they work, typically at a rate of 4% of their gross wages. This accrual happens as they work and is not typically paid out with each paycheck.
2. Annual Vacation Entitlement: In addition to vacation pay, employees are entitled to a certain number of paid vacation days each year. The number of days is determined based on their length of employment. For example, after one year of employment, they are entitled to two weeks (10 days) of vacation.
Now, when transitioning employees to a salary structure, you have a few options:
Option 1: Include Vacation Pay in the Salary
In this option, you would include the vacation pay percentage (6% in your example) as part of the annual salary. So, if you’re offering an employee a $100,000 annual salary with 6% vacation pay included, that would mean the employee’s salary is calculated as follows:
Annual Salary = $100,000 + (6% x $100,000) = $100,000 + $6,000 = $106,000
In this case, the employee’s $106,000 salary includes their vacation pay. They are entitled to 15 days of paid vacation as part of this salary. If they don’t take all 15 days of vacation, you are not required to pay out the unused vacation pay separately at the end of the year because it’s already included in their annual salary.
Option 2: Keep Vacation Pay Separate
Alternatively, you can keep the vacation pay separate from the salary, similar to how it was handled for hourly employees. In this case, you would pay the employee their annual salary of $100,000 and separately calculate and pay out the 6% vacation pay on each pay period based on their earnings. This would be on top of their salary, and if they don’t use their vacation days, you would still need to pay out the accumulated vacation pay.
It’s essential to communicate clearly with your employees about which option you choose and how vacation pay is handled under their new salary structure. Ensure that your payroll processes align with your chosen method to avoid any misunderstandings or legal issues. Also, keep in mind that employment contracts and collective agreements may have specific provisions regarding vacation pay.
Vacation Policy – Ontario
How to Make Payments of Vacation Pay

[vickyp]

in reply to: medical-note-content-case-law-Ontario #90354

An employer is not entitled to know an employee’s diagnosis, they can ask about: the expected length of their illness or disability.
Some employers may be hesitant to accept virtual medical notes or notes from telemedicine providers. However, it’s essential to consider the evolving nature of healthcare, especially in light of the COVID-19 pandemic. Many healthcare providers have adapted to providing virtual care, and virtual medical notes may be just as valid as traditional ones. Discriminating against virtual medical notes may be problematic if they are legally valid and meet the necessary requirements.

Compliance Briefing: Are You Allowed to Ask Sick Employees for a Doctor’s Note?
Doctor’s Note Policy
Solving the “Self Serving” Medical Notes Puzzle

[vickyp]

in reply to: Vacation Carry Over #90352

The treatment of unused vacation days that were carried over to the next year and not used by the specified deadline can vary depending on the company’s policies and local labor laws. Here are some common scenarios that might apply:
1. Forfeiture: In some companies, if employees do not use their carried-over vacation days by the deadline, they may forfeit those days, meaning they lose them without any compensation. This practice is often in line with the company’s policy and may be communicated to employees in advance.
2. Payout: In other cases, companies may have a policy that requires them to pay out the value of the unused vacation days to the employees. This payout could be included in the employee’s regular paycheck or handled separately. Local labor laws may also dictate whether unused vacation days must be paid out.
3. Carryover: Some companies may allow employees to carry over unused vacation days beyond the deadline into the next year, with certain limitations. This could be subject to specific company policies or collective bargaining agreements.
4. Use or Lose: A “use it or lose it” policy may apply, where employees are explicitly informed that they must use their carried-over vacation days by the deadline, and if they do not, those days will be lost without compensation.
It’s essential for both employers and employees to understand the company’s vacation policy and local labor laws that may apply in their jurisdiction. Many companies have written policies or employee handbooks that detail how vacation days, including carried-over days, are treated. Additionally, employment contracts or collective bargaining agreements may also influence the outcome.

Dismantling the Confusion Around Managing Vacations in Canada
Vacations Quiz
Paid Vacation Policy

[vickyp]

in reply to: IT Accessibility #90338

Here are a few. I think the first is probably the best for you because it deals with research data. I hope these help.
https://www.unco.edu/hipaa/pdf/data-security-research.pdf
https://nmcdn.io/e186d21f8c7946a19faed23c3da2f0da/556712d9bf0f4cb2a916cc810687d52b/files/risk-management-resources/risk-management-handouts/Data_Security_Policy.pdf (general data security)
https://www.bowiestate.edu/files/resources/information-security-public.pdf (general data security)
https://assets.contentstack.io/v3/assets/blt36c2e63521272fdc/blt957812312514f63a/5e9df9554c47dc64d2a649d0/remote_access_policy.pdf (remote access)
https://nationalcybersecuritysociety.org/wp-content/uploads/2019/10/Remote-Access-Policy-Template-FINAL.pdf (remote access)

[vickyp]

in reply to: Vacation Request Automation and Tracking Software #90331

Personally, I can’t. But let me run this by our payroll expert. I’ll get back to you when he replies.

[vickyp]

in reply to: Legal Disclosure for Current Staff Member on Leave – Ontario #90327

Wow. I don’t know how to answer that question. Specifically, you need legal counsel on a matter involving potential litigation, which I’m not qualified to provide. Sorry but you should definitely ask a lawyer.

[vickyp]

in reply to: New Year’s day stat holiday – Jan 1, 2022 #90326

From our payroll expert, Alan McEwan:
Yes, the employer in Ontario can unilaterally substitute December 31 for the January 1 public holiday. Does that mean the Xmas and Boxing Day statutory holidays are being substituted with December 28 and 29 as well?

[vickyp]

in reply to: Vacation pay – use it or loose it #90323

Here we go. From our payroll expert. Sorry to keep you waiting for so long.

No. an employee can forfeit the time, but not the pay, if vacation time is taken. Once earned, vacation pay can not be reduced other than by payment to the employee.
Time and attendance systems are often configured to entitle an employee to PDOs at the start of each year, and then track the usage as employees take time off. Some employers carry this forward to payroll where taking paid sick time reduces the regular hours on the pay stub, with the PDO hours showing on a separate line. As well, the pay statement might be configured to show the remaining PDO time available.

[vickyp]

in reply to: Drug and Alcohol policy #90312

That’s a really great Q and a really hard one to answer. There’s a Supreme Ct case called Stewart v Elk Valley that allowed an employer to terminate an employee for failing to self-disclose. But it’s very limited and based on the terms of the testing policy. Here’s a story we did on the issue a few months ago. Pls feel free to contact me directly if you want to discuss further. glennd@bongarde.com.
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Companies have traditionally relied on testing to determine if employees use alcohol, drugs and other impairing substances at work. While testing remains a crucial safety measure, many companies now ask employees to self-disclose their alcohol/drug problems, typically on a non-disciplinary basis. The idea: Recognize that substance abuse is a problem, not a form of misconduct, and get employees who come forward voluntarily the help they need. Then if employees don’t take the offered amnesty and later test positive, you can discipline them.
Although a recent Canadian Supreme Court called Stewart v. Elk Valley Coal Corp., 2017 SCC 30, [2017] 1 S.C.R. 591, recognizes the general legality of that approach, your policies must apply it very carefully. It comes down to a balance between your interest in workplace safety and the employee’s privacy and right to accommodations.

Rule 1: The policy must be not only necessary to ensure safety but carried out in the least privacy-intrusive way possible.
Rule 2: The policy must accommodate employees’ disabilities (remember that drug/alcohol dependency and addiction are “disabilities” under human rights laws) to the point of undue hardship.
Is Your Policy Up to Snuff?
How can you tell if your own self-disclosure policy is legal? To help you make that determination, we’ve looked at actual cases where courts and arbitrators applied the above rules to evaluate the legality of such policies. We then rolled the common problems that caused a policy to fail scrutiny into a fictional Model Substance Abuse Self-Disclosure Policy, a policy from hell demonstrating the pitfalls you need to avoid.
Your assignment: Look at the policy and identify as many of the problems as you can.

The Substance Abuse Self-Disclosure Policy from Hell
1. Scope: This Policy applies to all ABC Company employees regardless of job, job title or employment-status.
2. Duty to Disclose: Employees must notify their supervisors if they currently use or have used drugs, alcohol and other impairing substances in the past 6 years.
3. Independent Medical Exam (IME): Upon disclosure, employees will be removed from duty, placed on leave and required to undergo an IME conducted by an addictions specialist selected by ABC Company. If the IME finds the use is related to an addiction or dependency, the employee will be offered reasonable accommodations, medical assistance and support designed to ensure his/her return to work as quickly as possible; if the IME finds the use to be recreational, the employee will be subject to discipline in accordance with the ABC Company Discipline Policy.
4. Return To Work: Employees may return to work upon completing the following rehabilitation, treatment and monitoring conditions:
(a) Abstention from drug and alcohol use during the return to work process;
(b) Completion of a prescribed treatment program consisting of: i. attending at least ___ Alcoholics/Narcotics Anonymous meetings per week over a ______ period; ii. maintaining regular and meaningful contact with an AA/NA sponsor; and iii. completing any 12-step program the sponsor recommends.
(c) Passing random drug/alcohol tests every 2 weeks during the return to work process.
(d) Undergoing second IME that determines that the employee no longer has an addiction or dependency and is ready to return to work.
5. Last Chance Agreement: After fulfilling the above return to work conditions, the employee will be reinstated after signing a Last Chance Agreement promising to adhere to his/her treatment program, submit to random testing and agree that any further alcohol/drug violations will result in termination.
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Click here for a corrected and cleaned-up version of the Model Policy.

What’s Wrong With This Policy?
While the non-disciplinary self-disclosure approach is in line with the Elk Valley case, almost every provision implementing the concept is problematic.
1. Covers All Employees Instead of Safety-Sensitive Ones
The red flag is the phrase “all employees.” While requiring all employees to be fit for duty is perfectly appropriate and necessary safety objective, the provisions set out in this Policy are highly privacy-intrusive and justified only when limited to safety-sensitive workplaces and employees who perform safety-sensitive jobs.
2. Duty to Disclose Is Too Broad
Based on case law, there are 3 things employers may ask employees to disclose:

Current drug/alcohol use;
Current drug/alcohol dependency; and
Drug/alcohol dependency in the past 6 years.
What employers can’t ask about is past use. Explanation: Current use and dependency make workplace impairment a compelling safety risk justifying mandatory disclosure; ditto for past dependency over 6 years since scientific evidence shows that users are at heightened risk of relapse during that window. By contrast, courts have ruled that past use (especially going back as far as 6 years) doesn’t significantly increase the risk of current use or impairment.
3. IME Requirements Are Overly Intrusive
While employers have a right to collect private health information about an employee’s drug/alcohol use, they must do it in the “least intrusive” way possible. Because they’re so comprehensive and delve so deeply, IMEs are highly problematic and are generally supposed to be used only as a last resort. There are 2 things about the Model Policy’s IME provisions that courts deem as overly intrusive:

The IME (and employee’s removal from the workplace) is triggered automatically after an employee discloses without consideration of the employee’s individual circumstances or whether he/she has been involved in any workplace safety incidents;
The IME is performed by a specialist selected by the employer, which flies in the face of court rulings that addiction specialists be brought in only after attempts to gather the information from the employee’s primary care doctor and that the employee should have a say in which specialist does the exam.
Note: The one thing the provision does right is distinguish between addiction/dependency and recreational use and recognize that the former is a disability subject to accommodations while the latter is not.
4. Return To Work Conditions Are Overly Restrictive
Two of the return to work provisions raise red flags:

Good News: The required treatment program (Sec. 4(b)) follows medical protocols and best practices; Bad News: The concept of prescribing any single program to be followed in all cases violates the rule that accommodations be tailored to the individual circumstances and needs of the particular employee.
Requiring employees to undergo a second IME after successfully completing their rehab and treatment programs is overkill (Sec. 4(c)).
The other return to work provisions are generally acceptable and fairly standard, including the requirement that employees abstain from drug/alcohol use (Sec. 4(a)) and submit to random testing during the process (Sec. 4(d)).
5. Requiring Last Chance Agreement Is Unfair & Discriminatory
Agreements giving wayward employees one last chance to save their job provided they don’t slip up again are fine for disciplinary, performance and other workplace problems, even in cases where the workplace problems were related to an employee’s drug/alcohol addiction or dependency. What makes the last chance provision in the Model Policy problematic and distinct from other last chance agreements involving employees with drug/alcohol problems is the trigger, namely, the employee’s self-disclosure that he/she has such a problem even if the employee hasn’t created any actual workplace problems or committed any disciplinary infractions. In other words, simply having a drug/alcohol dependency or addiction is treated as an offence requiring automatic imposition of a last chance agreement instead of a disability requiring accommodation.
What the Policy Should Say
The good news is that the Model Policy’s approach is sound and can be made right by some key corrections. Click Here for a cleaned-up version.

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