[vickyp]

in reply to: Answer for Updating your A&D policy #86955

The template and instructions on https://ohsinsider.com/compliance-briefing-use-hri-to-get-your-drug-use-policy-ready-for-marijuana-legalization/   should fit the bill exactly. I believe the templates are based on Ontario laws but they can be easily and quickly adapted to any other jurisdiction if you’re not from Ontario. If you need my help, I’ll be happy to do the tweaking for you. glennd@bongarde.com   Glenn

[vickyp]

in reply to: Answer for Benefits Continuation During the Notice Period #86954

Alan’s replies:

1. Is the employer required to keep ALL benefits active during the employee’s notice period – either if the employee has provided notice of resignation, or the employer has provided notice of termination’ ANSWER: YES
2. If the employee has resigned, is the employer required to keep ALL benefits active during the employee’s notice period, if the notice period is during an employee’s paid vacation (i.e. the employee provided 1 week notice the same day that their 1 week vacation started)’ ANSWER: YES 
3. If the employer is required to keep benefits active, can the employer keep health/dental/vision etc active but cancel life insurance, disability coverage, AD&D, in order to avoid accommodating a potential injury or death’ If the employer is not required to keep benefits active then you can disregard this question.ANSWER: NO

I hope you like your answers short but sweet. LOL. If you do want more, please feel free to follow up. Thx. Glenn, glennd@bongarde.com

[vickyp]

in reply to: Answer for Benefits Continuation During the Notice Period #86953

Let me run this by our payroll expert and get back to you. Thx. Glenn

[vickyp]

in reply to: Answer for Contract Signing Authority #86952

There are 2 things to consider.
1. Do you have authority to bind the organization’ Is there a company policy, corporate resolution or other document expressly stating that HR can sign binding contracts on behalf of org and/or that HR can sign contracts on CEO’s behalf’ If not, there should be one.
2. Personal liability risks: Signing on “your own behalf,” i.e., makes YOU a party to the contract and exposes you to risk of personal liability. So you should sign in your capacity as HR manager of the organization.
Also suggest that your organization seek legal counsel before making this move. This is a legal issue that may involve hidden pitfalls. Hope this helps. Glenn

[vickyp]

in reply to: Answer for Unions and Employment Standards #86951

Alan officially agrees and endorses my response. Re: your other Q: Alberta is another jurisdiction where employers may ask for reasonable evidence of need for crime related child death or disappearance leave, which may leave door open to inquiring about whether employee is a suspect in case.

[vickyp]

in reply to: Answer for Crime Related Child Death leave #86950

The employment standards laws don’t say the employee must be guilty, only that he/she be a suspect. Of course, that’s not the kind of thing you can easily find out.
But there is some room for maneuver. Any jurisdiction that allows crime related death/disappearance leave would require the employee to provide notification of leave dates and expected return to work. The key is whether as in some jurisdictions like Ontario, employers are also allowed to require the employee to provide “reasonable evidence” of the need for leave (ON ESA, Sec. 49.6(14)). Such evidence could theoretically include assurances that the employee or spouse is NOT a suspect. Unfortunately, I couldn’t find any guidance on this. If you tell me which province you’re in, I may be able to dig a bit deeper. Glenn

[vickyp]

in reply to: Answer for Unions and Employment Standards #86949

Interesting Q. Employment standards are minimum requirements for non-union employment everywhere in Canada and can’t be negotiated away UNLESS expressly permitted, e.g., with regard to overtime averaging in some provinces. The same basic rule pertains to union employment although latitude for negotiation is generally wider if it’s part of a collective agreement. But again, you need to look at the specific provision of the ESA statute or Reg. to determine how much, if any, room for negotiation there is. If no latitude is provided for, the provision can’t be negotiated away.
At least this is my belief. But I also want to run this by our payroll expert Alan because he knows the ESA laws better than I do. So stay tuned and I’ll relay his comments as soon as I get them. Glenn

[vickyp]

in reply to: Answer for Organizational Policy Update Inquire #86948

Awesome! So glad we could be of assistance and really appreciate your kind words.

[vickyp]

in reply to: Answer for Organizational Policy Update Inquire #86947

FOLLOW-UP: GLENN
While not necessarily disagreeing with the substance of my response, my payroll colleague Alan McEwen has a different take on your Q. I agree with what he’s proposing. So I guess consider this 2 answers for the price of 1. 
****
RESPONSE FROM ALAN
Sorry, I wouldn’t have answered exactly this way. Under the existing ON ESA, the choice of whether or not benefits continue during legislated leaves lies wholly in the hands of the employee. Benefits must continue unless the employee provides written notice that both:

• The employee doesn’t want the coverage; and
• The employee won’t pay for any portion that was otherwise employee paid.

In practice this means where benefit costs are shared between employer and employee, the employer must continue paying the premiums unless the two conditions above are met. A lack of response from an employee, the absence of an agreement to pay these or the failure to actually pay them doesn’t change this liability.
You also have to consider the Human Rights aspect. If the employer wants to stop benefit coverage during legislated leaves, which mostly deal with protected Human Rights grounds, but not for voluntary leaves of absence, then that’s going to be a problem.
My own suggestion is that any employer policy related to benefit costs during legislated leaves deal with the two points above, rather than a blanket cessation of benefit coverage during legislated leaves.
And if the existing policy is to provide benefit coverage during legislated leaves, i.e. a greater benefit than the ESA requires, removing this might be considered constructive dismissal, especially for employees on an existing leave.
Let me know if you’d like to discuss.

[vickyp]

in reply to: Answer for Organizational Policy Update Inquire #86946

Not sure my response went thru, so I’m resending it:
****
Normally, I would say that applying a leave-related policy change like this to an employee AFTER he/she’s started leave in accordance with the original policy is highly problematic and a potential breach of contract. However, requiring employees to continue participating in benefit plans during leave (and continuing to make employer contributions on his/her behalf) is not only permitted but mandated under the Ontario ESA (Section 51(1)) unless the employee elects in writing not to do so. Accordingly, the rule would apply regardless of what your leave policy says or doesn’t say.
I’m going to run this past our payroll expert for a second, more informed opinion but I personally think you’re OK. However, I would suggest vetting your leave policies to ensure they’re in line with ESA requirements. To be continued. . . Glenn

[vickyp]

in reply to: Answer for Asking Employees to Disclose a Prescription #86945

That is a great and very important Q.
1. Employers can’t make general inquiries about the prescription meds their employees use–marijuana or otherwise.
2. Employers can make such inquiries when they are directly related to job performance.
3. Asking employees if they use any IMPAIRING meds is probably acceptable as long as: a. You don’t ask which drug(s); b. You don’t ask the employee to disclose the diagnosis or  medical condition for which he takes the drug; c. the employee performs a safety-sensitive job; and d. You scrupulously keep the information private and confidential.
4. Implementing a Fitness for Duty Policy (like the one in HRI) puts you in a stronger position to make inquiries about impairing meds. (Check out the piece in HRI for a full explanation)
The ideal solution: encourage employees to disclose the meds they use (or addictions) VOLUNTARILY. The approach should be constructive, not punitive. Your purpose is not to discipline but help. The 2017 Supreme Court case Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII), June 15, 2017 is  instructive. It’s about an Alberta coal mine which had a so called “no free accident” policy requiring workers to disclose any drug addictions or dependencies. Workers who came forward were offered treatment, not discipline; workers who didn’t disclose and later failed post-incident drug testing got fired. A cocaine addicted machine operator who decided not to disclose and take his chances got into a work accident. The post-incident test came back positive for drugs. So the company fired him. The Supreme Court upheld the decision and the policy. The addiction was no excuse. The worker knew how dangerous the mine was and made a deliberate decision not to come forward. So he couldn’t beef when his gamble didn’t pay off.
Although the Stewart case is about addiction, the same “voluntarily disclose and nobody gets hurt, but you’re in big trouble if you conceal and we find out later” would apply to your situation, at least if your workplace is a dangerous one and/or the employees covered have safety-sensitive jobs.
Hope that helps. Glenn

[vickyp]

in reply to: Answer for Do employers have a duty to accommodate volunteers? #86944

Being a volunteer is NOT one of the personal characteristics protected from employment discrimination under BC (or any other jurisdiction’s) human rights laws. Accordingly, there’s no obligation under that law to provide accommodations. However, a volunteer IS protected from discrimination and entitled to accommodations to the extent he/she has one or more of those protected characteristics–race, religion, sex, family status, religion. So, for example, a volunteer who’s Muslim may be entitled to religious accommodations so he/she gets equal opportunity to serve as a volunteer. In other words, the protection stems from the person’s religious status not his/her status as a volunteer.
Hope that helps and I’ll try to be a little quicker in responding next time. Glenn

[vickyp]

in reply to: Answer for Leave Related to Critical Illness #86943

It IS confusing. The original critical care illness leave provision (ESC Sec. 59.8) provided up to 37 weeks’ unpaid leave to care for a critically ill child; the amendment, which took effect June 4, adds  up to 17 weeks to care for a critically ill adult. And, yes, employees already have right to take up to 28 weeks of compassionate care leave to care or support a family member–adult or child–expected to die within 26 weeks (Sec. 59.2). In other words, the leaves overlap.
So why bother creating the new leave, you’re wondering. It has to do, I believe, with the timing not the trigger. With compassionate care and critical illness, leave must end within 52 weeks. But new Sec. 59.8(9) says that if the kid or adult remains critically ill after the 52-week period, the employee gets ANOTHER leave (probably compassionate care) and the Section 59.8 critical illness leave provisions apply to that other leave. So basically, the compassionate care leave becomes an extension to the critical illness leave.
There are also differences in HOW each leave is taken. Critical illness leave can be taken in one or more periods of at least 1 week (Sec. 59.8(8)); compassionate care leave can be taken in no more than 2 installments of at least 1 week (Sec. 59.2(6)).
The other thing to keep in mind is that, theoretically, an employee could take BOTH leaves within the same year–compassionate care followed by critical illness.
At the end of the day, the critical illness leave is not so much a new leave as an injection of flexibility and extension of leave time to care for sick family members. Hope that helps and sorry for the delay in responding. Glenn

 

[vickyp]

in reply to: Answer for Employee Providing Termination Notice #86942

Yes, so long as the employee has given the notice required under ESC Section 58, the fact that the period coincides with a planned vacation is of no consequence. Hope that helps. Glenn

[vickyp]

in reply to: Answer for Overtime Agreements #86941

Overtime banking IS allowed in most jurisdictions–all but Federal and Nova Scotia, I believe. However, the rules and restrictions, including with regard to how long a banking arrangement can last as well as  procedures for entering into a banking agreement, vary depending on the jurisdiction’s employment standards law (aka, labour standards law). The link below will take you to an HRI piece that summarizes the overtime banking rules in each jurisdiction.  Hope that helps. Glenn. glennd@bongarde.com
https://ohsinsider.com/employees-right-to-bank-overtime/

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