[vickyp]

in reply to: Answer for STAT Holiday in Alberta – Exceeding Standards #86985

I’ll be happy to work with you on this. There are 2 issues: First: Which Stat Holiday benefits do you actually want to provide. That’s a business decision that your organization must make internally. Once you do decide, we can proceed to the next issue, namely, how to draft the policy. That’s where I can help you. Just let me know what the benefits are and I’ll help you construct some good language for your policy.
Please feel free to contact me directly at glennd@bongarde.com or 203 354-4532. Caveat: I’ll be out of the office Thursday and Friday, back on Monday.
Thanks and Happy Thanksgiving to any of the US residents in your family. Glenn

[vickyp]

in reply to: Answer for Reimbursing for Gym memberships and other fitness initiatives #86984

Here’s Alan’s reply:
The short answer is that paying all or a portion of an employee membership in a gym IS a taxable benefit. However, there are two key exceptions:
One is if the employer holds the membership, paying a fee to the gym that provides access to all employees. This is equivalent to the employer providing the gym facilities directly, which is not itself a taxable benefit.
The other is if the employer can clearly demonstrate, i.e. prepared to defend itself to the CRA, that it’s the employer who primarily benefits, i.e. at least 50%. This can happen in several different ways. The employer benefit might be sales related, such as networking and business development, or it could be part of a wellness program, with a demonstrated impact on employee absences, use of extended health benefits, etc.

[vickyp]

in reply to: Answer for Return to work plan for a non-work related injury #86983

I apologize for the delay. I somehow missed your Q.
First of all, you’re subject to Alberta workers’ comp law even though you’re federally regulated. Under the Bill 30 workers’ comp changes that took effect on Sept. 1 this year, employers have a duty to accommodate AND reinstate workers who suffer compensable injuries, i.e, work injuries covered by workers’ comp (WCB Policy 04-05). But since your employee’s injury is NOT work-related, Policy 04-05 doesn’t apply.
However, you do have a duty to accommodate an employee with a broken ankle (or any other disabling injury or illness) even if it’s not work-related to the point of undue hardship. As with all accommodation requests, the question of whether letting the employee return to work so soon is reasonable or undue hardship depends on the situation. Your obligation is not necessarily to agree to the request but to:

1. Assess the employee’s capabilities;
2. Seek to modify the position in accordance with those capabilities;
3. If that’s not possible, determine if there are other jobs the employee can do.

While you don’t have to make up a job that delivers no value to the organization just to accommodate the employee, you do need to activate the accommodations process described above and, just as importantly, keep clear and specific records documenting your efforts. You should also treat the accommodations process as collaborative and not adversarial and work together with the employee and his/her representatives to work out a solution. If you do all this, you should be on solid legal grounds as far as a disability discrimination complaint is concerned.
Hope this helps. Glenn

[vickyp]

in reply to: Answer for Reimbursing for Gym memberships and other fitness initiatives #86982

I think so, but I need to check with my payroll expert. I assume you’re talking about federal income tax law. If not, drop me a note at glennd@bongarde.com

[vickyp]

in reply to: Answer for HRT vs CNT #86981

It depends on what the release agreement says and whether it’s enforceable.
WORDING: The first thing to consider are the rights the worker gave up under the release. Specifically, did the release cover only the Commission des Normes du Travail action or to other claims and rights’ If as is typically the case, the release covers all matters relating to the employment, the employee’s human rights action is a clear violation.
ENFORCEABILITY: You’re still not out of the woods even if the action does violate the release. The employee can still claim that the release is unenforceable. To defeat that argument, you’d have to show that:
> The release is clearly worded and understandable to the employee
> The employee received consideration, i.e., something of value, for signing it;
> The employee wasn’t coerced or tricked into signing it; and
> The employee got the opportunity to have a lawyer review the release.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Personal/Sick Days #86980

One thing that is clear is that you can’t terminate them BEFORE they use up their full complement of ESA-entitled personal/sick days. Whether you can fire them for absences beyond the ESA allotment is more complicated. And without knowing all of the facts, I can’t give a clear YES or NO. But generally speaking, if you’re talking about firing the employee BECAUSE he/she took the 11th day, the answer is almost surely NO. Let me lay out some general principles that you can apply to your situation.
First, you need to differentiate between culpable and non-culpable/innocent absences. Firing for the latter is far more problematic, especially if the cause of absence is an illness or physical/mental condition that constitutes a “disability” under human rights laws. In that case, you’d have to accommodate the absenteeism to the point of undue hardship. To prove undue hardship, you’d have to show that the absence has defeated the purpose of the contract and rendered it impossible for the employee to do his/her job and that it’s likely to continue for the foreseeable future.
Culpable absence is grounds for discipline but the usual limitations apply. In other words, the disciplinary action must be reasonable, appropriate and dispensed fairly and in accordance with your organization’s progressive discipline policy and procedures. An 11th day of culpable absence after 10 days of ESA leave would not normally be just cause to terminate unless there are aggravating factors or other causes. Sure, he/she missed more than 1 day–he/she missed 11, you could argue. The problem with that logic, though, is that you’re treating the 10 days of ESA leave as culpable and basically retaliating against the employee for exercising his/her ESA rights. That’s a no no.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for A Manager at my company reprimanded me for terminating an employee saying I harassed her. She had gone to him because she did not agree with her appraisals.He did this in front of 6 members of our company’s Executive Council saying that she was not treated fairly etc. The President of the company , my direct supervisor signed teh termination papers. I interrupted teh Manager’s discourse by saying, “With all due respcet I did not harass this employee. You are confusing it with performance appraisals and that my his saying this I was feeling harassed. He then said, ” I didn’t say you harassed her and I interupted him and said “yes you did” and he then admitted he said that. The President call me later to say the manager said he didn’t harass me but he doesn’t understand his reprimand was in front of 6 colleaugues. The colleaugues didn’t know anything about the issue and he should not have brought an employee’s affairs to that meeting. Now he doesn’t speak to me and is very cold. Is this constructive dismissal? The President called me after the meeting and said it will take the manger a while to calm down but that I do a great job.6s66hould I be pursuining legal advice? I was totally caught off guard and humiliated by this manger . #86979

100% you should be pursuing legal advice. This COULD be constructive dismissal but it’s impossible to predict how an arbitrator or court would rule on the issue. The fact that your boss reassured you and complimented your job performance would work against you in a constructive dismissal suit; more importantly, though, it indicates that it need not come to that and that things will be okay once this thing blows over. Of course, if it doesn’t blow over, you may want to go back to the president. Strongly suggest that you talk to a lawyer before deciding what to do next. It’s also crucial that you have documentation of the events you describe. Good luck and stay in touch if I can be of further help. Most importantly, call a lawyer as soon as you can. Glenn

[vickyp]

in reply to: Answer for If an employee quits and gives 3 weeks notice but the employer does not want them to stay, does the employer pay them for the 3 weeks notice? They have with the company for 3 years #86978

Generally speaking, the answer is YES, you would be required to pay out the notice an employee has given.
However, the rules do vary somewhat by jurisdiction. If you tell me where you’re from (or whether you’re federally regulated), I can look up what your jurisdiction requires. Glenn–glennd@bongarde.com

[vickyp]

in reply to: Answer for I am aware of the employers right to gather more medical information if we receive a note from a doctor that is ambiguous. I am wondering how far can the employer go in gathering information. I have recently had two employees state that they are unable to work a full week. They medically require one day off. Do I have any further recourse I can pursue as the employer? #86977

Me again. I just realized that I missed a key point–that the employee wants to take a day off EACH WEEK. That’s a bit different because it amounts not to a medical excuse but a request for an accommodation. Under human rights laws, you DO have a right to request more detailed verification of a medical disability requiring an accommodation in work schedules, HR policies, etc. So, no, that letter you got from the doctor is NOT adequate and you can request more specific and detailed info verifying the need for the accommodation. But be careful. Accommodation requests are pretty sensitive and I’d strongly suggest seeking counsel from a lawyer before making your next move. Sorry it took me so long to figure this out but I hope this will still help. Glenn

[vickyp]

in reply to: Answer for I am aware of the employers right to gather more medical information if we receive a note from a doctor that is ambiguous. I am wondering how far can the employer go in gathering information. I have recently had two employees state that they are unable to work a full week. They medically require one day off. Do I have any further recourse I can pursue as the employer? #86976

Hi. Apologize for not noticing your follow up clarification until now. Basically, the note you received is, IMO, enough to verify that the employee needed to take a day off for a medical illness. As long as the employee returned the next day, you’re not allowed to ask for further medical information. But if this develops into a pattern, you may be in a position to ask for clearer confirmation of illness and a prognosis–although not a diagnosis. Glenn

[vickyp]

in reply to: Answer for Stress Leave in Manitoba #86975

The general answer is that the employee is entitled to at least the minimum benefits provided under provincial employment standards laws PLUS any more generous benefits your organization provides. Let’s go thru each:
PART 1: EMPLOYMENT STANDARDS
As in other provinces, general stress and burnout is NOT grounds for unpaid leave under the Manitoba ESC. But it might still trigger one of the other forms of leave that are, including (but not necessarily limited to):
*3 days’ unpaid health leave under Sec. 59(3)(1)
*31 weeks’ unpaid critical illness leave under Sec. 59.8(2) if stress is due to need to care for a critically ill child (or 17 weeks under Sec. 59.8(3) to care for critically ill adult)
*17 weeks’ unpaid long term illness leave under Sec. 59.10
*Leave for domestic violence under new Sec. 59.11,
ETC.
PART 2: ORGANIZATIONAL POLICIES/CONTRACTS
The second part of the inquiry are your own policies and what, if any, more generous leave provisions you provide your employees, e.g., under the employment contract. Presumably, the employee you refer to is NOT in a union. But if he/she is, you’ll need to check the leave provisions of the collective agreement.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for I am aware of the employers right to gather more medical information if we receive a note from a doctor that is ambiguous. I am wondering how far can the employer go in gathering information. I have recently had two employees state that they are unable to work a full week. They medically require one day off. Do I have any further recourse I can pursue as the employer? #86974

RULE: You can ask employees for medical information you need to carry out a legitimate employment function as long as you don’t ask for more than the info necessary to carry out the function.
APPLICATION TO A ONE-DAY/WEEK ABSENCE: You can ask for a doctors note verifying the employee’s need to take a medical absence.
WHAT DO YOU MEAN BY “AMBIGUOUS”‘ A note need only say something like “X is sick and needs to take a day/week off.”So if you’re looking for more information, like a diagnosis, i.e., why the employee is sick, treatment information or any other details about the medical case, you’re out of luck.
But if by “ambiguous” you mean the note doesn’t even verify that the employee is sick, you CAN ask the employee for clarifying information and discipline him/her for refusing to provide it. Remember, just verification of illness, no case details.
LONGER ABSENCES & RETURN TO WORK: You have more leeway to verify need for longer absences. And when employees are returning to work from long absences, the zone of privacy shrinks even more to the extent medical information about the employee’s capabilities is necessary to determine when and to what position he/she can return and with what accommodations.
Hope that helps and email me directly if you want to continue the conversation off line. glennd@bongarde.com

[vickyp]

in reply to: Answer for Defamation #86973

If I’m reading this right, you’re saying that the fired employee has been going over the manager’s head with her complaints and that the person receiving those complaints, let’s call him/her Pat, believes them.
This sounds primarily like an internal matter of miscommunication and tangled lines of authority. I’d first suggest trying to work it out directly with Pat. The manager should speak to Pat and set the record straight–literally and figuratively. Bring along documentation of the employee’s performance issues and seek clarification from Pat about what exactly the employee alleged. Address those concerns directly. Keep careful notes of the meeting, what was said and how things were resolved, if they were. It might also be advisable for the manager to bring a third party to the meeting with Pat.
If the face to face with Pat doesn’t resolve the issue, the manager should probably escalate and go to HR and explain the situation. This way, the issue becomes an organizational problem and the manager gets a degree of protection, at least if the organization is run fairly.
If the problem still continues, the manager might want to talk to a lawyer and discuss the constructive dismissal options.
Defamation is a tricky issue and one of last resort. To prove it, the manager must show that Pat knowingly or recklessly made false statements about the manager. The manager would also have to prove that the defamatory remarks were published, read and caused damages to the manager. If the manager ends up getting fired or constructively dismissed for the remarks, defamation can be part of the wrongful dismissal suit. If the defamatory remarks are communicated to third parties outside the organization, it could be grounds for punitive or extraordinary damages.
Hope that helps. Sounds like a tricky situation. Glenn

[vickyp]

in reply to: Answer for Closure of a Business – What is due to EEs #86972

This comes from Alan McEwen, our payroll guru.
First, in the situation described, the rules that apply are those for Alberta, unless the company is federally regulated.
Yes, the employer would have to pay any wages owing, including accumulated vacation pay, banked time, etc. as well as either providing sufficient notice or wages in lieu of notice.
Yes, it would also be a common practice, to pay above the required minimum employment standards amounts for these, in order to avoid the possibility of being taken to court.

[vickyp]

in reply to: Answer for Are all Ontario employers required to comply with Bill 148 amendments? #86971

The simple answer to that is that any employer currently required to comply with the Ontario Employment Standards Act is also required to comply with the Bill 148 amendments. Bill 148, in other words, has no impact on the scope of ESA coverage; it just deals with the obligations of the employers who ARE covered.
What’s much harder to answer is whether Bill 148 will be repealed. The new Ontario PC government has already pulled the plug on the $15 minimum wage scheduled for Jan. 1, freezing it at the current $14 per hour. Two weeks ago, Premier Ford made a speech talking about repealing Bill 148 in the interest of keeping Ontario businesses “competitive” vis a vis businesses in other jurisdictions not saddled with Bill 148 burdens. Key Qs: Will the Bill 148 changes other than the $15 minimum wage slated for Jan. 1 come off’ Will any, some or all of the Bill 148 changes that took effect last Jan. be repealed.
Rest assured that while we don’t know what’s going to happen with Bill 148, we’ll be keeping a close watch on things and will let you know the minute something breaks. Hope that helps and hope I didn’t go on too long. Glenn

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