Eligible voters are entitled to three consecutive hours off work during the time that their polling stations are open on election day (this does not apply to advance polls). 

If an employee’s regular work schedule doesn’t provide them with that time off, the employer must give the employee paid time off work to vote. Yes, this is a very brief but paid leave for the employee.

The timing of the leave is at the discretion of the employer and typically only minor adjustments to schedules are required. If an employee’s polling station is open from 9:00 a.m. to 9:00 p.m. but they are off of work by 6:00pm, the employee is not entitled to any paid time off.  But if the employee’s regular schedule is, for example, 11:00am to 7:00pm, then the Employer can decide whether to allow the employee to come in late at 12:00pm or leave early at 6:00pm, with pay, so that the employee has three consecutive hours to vote. 

If the employee needs other time off for that day unrelated to voting, the employer does not have to provide that employee with paid voting time off at the employee’s requested time. For example, if the employee requests that they need to leave early on election day, but the employee already has 3 consecutive hours off in the morning of election day, that evening leave is not considered voting leave and does not have to be paid as voting leave.

Any employee acting as a Returning Officers or a Poll Official are entitled to an unpaid leave of absence to perform their election duties. The employee must provide the employer with at least 7 days notice of their intention to take a leave.

An employer is prohibited from penalizing an employee for exercising the right to take a leave related to elections, including forcing the employee to take vacation pay or sick pay instead of giving them their paid or unpaid leave as detailed above. The fines for such a contravention of the law bears a maximum fine of $5,000. If a judge finds that the offence was “committed knowingly” or someone assisted in any way the offence being “committed knowingly”, the maximum fine is increased to $25,000 and the offenders could be sent to jail for a maximum of two years less a day.

Reach out to our Employment Law Team if you have any questions.

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Courts have previously found that employers may be partially responsible for negative consequences and damages from their work-related social gatherings. For example, should an intoxicated employee drive home following a workplace party, the employer may face liability for any related injury to the employee or to an innocent third party. Liability may also arise when employees or their guests at a workplace function engage in unacceptable behaviours such as sexual harassment.

Employers should take the following into account to ensure no issues arise at their holiday events:

Before the Event

• Set consistent expectations for employee and guest behaviour and remind all team members that all workplace rules and policies are still in place during the event.
• Ensure employees are familiar with the employer’s harassment reporting procedure.
• Inform employees and guests that impaired driving is prohibited.
• Offer alternative transportation options for employees and guests before the event and communicate these options to employees.
• Designate a managerial or another high-level employee to monitor alcohol consumption to ensure no partygoers are ‘overserved.’

During the Event

• Consider a ticket system to limit the number of alcoholic drinks partygoers can consume.
• Arrange for a third party with SmartServe (or other training) to tend the bar and serve alcohol to guests.
• Serve food and alternative non-alcoholic beverages (like mocktails).
• Do not have games or activities that could encourage inappropriate behaviours or workplace injury, such as games that encourage excessive alcohol consumption.
• Close the bar an hour or more before the end of the event.

Conclusion

Successful holiday celebrations require employers to plan carefully. By following these guidelines and implementing the above practices, employers can ensure that all attendees enjoy themselves and remain safe.

If you have any questions about safe holiday party practices, feel free to contact a member of FREEDIN & ROWELL LLP’s Labour and Employment team.

We wish you and your families a joyous holiday season!

The post Safe Holiday Parties: A Primer appeared first on FREEDIN & ROWELL LLP.

Supporting Families

This legislation will propose a new 16-week job-protected leave under the Employment Standards Act, 2000 (“ESA”) for adoptive parents and parents through surrogacy. These amendments would also align with upcoming federal changes to create employment insurance (EI) benefits for adoption. The government also intends to propose a new 27-week long-term illness leave for employees unable to work due to a severe medical condition as defined by a medical practitioner, such as cancer, multiple sclerosis or Crohn’s disease. If passed, this would be one of the longest provincial leaves in Canada.  

Women in the Skilled Trades

In legislation from earlier this year, the government now requires menstrual products on construction sites with 20 or more workers and where the project is expected to last three months. In continuing the trend of supporting women in the skilled trades, this newly proposed legislation will expand the explicit requirement for properly fitting PPE for women in the construction sector that the government included in the Working for Workers Act, 2023 to include all sectors. Recent research published by the Canadian Standards Association (CSA) found that 50% of women said their PPE does not fit properly, 43% said it is uncomfortable to wear and 35% said the selection of women-specific PPE is inadequate.

Ontario is also proposing specific requirements on employers that will increase accountability and transparency with washroom cleaning records to ensure workers have access to clean washrooms. These amendments would build on the new duties for employers and constructors related to clean washrooms passed under the Working for Workers Five Act. Half of the Ontario Building and Construction Tradeswomen 2022 survey respondents cited better washroom facilities as needed to make construction more appealing to women.

Should you or your organization have any questions about these potential amendments and how they may impact your workplace, please get in touch with a member of FREEDIN & ROWELL’s employment law department.

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Employment Standards Act, 2000

The following amendments are now in effect:

• Employers cannot require an employee to provide a certificate from a qualified health practitioner as evidence of their entitlement to ESA sick leave.
• The maximum fine for an individual convicted of violating the ESA is increased from $50,000 to $100,000.

The following amendments come into force on a date to be proclaimed in the future:

• Every publicly advertised job posting must include a statement on whether the posting is for an existing vacancy. This requirement may be subject to prescribed exemptions.
• An employer who interviews an applicant for a publicly advertised job posting must provide the applicant with prescribed information within a prescribed time period -the content of which still needs to be set out by the government.

Occupational Health and Safety Act 

The following amendments are now in effect:

• The OHSA applies to telework performed in or around a private residence. Additional amendments exclude any office in a private residence from the definition of an “industrial establishment.”
• The definition of workplace harassment and workplace sexual harassment is expanded to include harassment that occurs in a workplace “virtually through the use of information and communications technology.”

• An employer can post the names and work locations of joint health and safety committee members in a readily accessible electronic format rather than in the physical workplace.
• Joint health and safety committee meetings can now occur remotely
• An employer may post its workplace health and safety policy in a readily accessible electronic format, rather than in the physical workplace.
• An employer may post a copy of the OHSA and any explanatory material in a readily accessible electronic format, rather than in the physical workplace. Employers must post these materials in both English and the majority language of the workplace.

The following amendment will come into effect on a date to be proclaimed in the future:

• An employer is required to ensure that any washroom facilities provided for worker use are maintained in a clean and sanitary condition. The employer is also required to maintain cleaning records.

Workplace Safety and Insurance Act, 1997

The following amendment is now in effect:

• Presumptive coverage for post-traumatic stress disorder is extended to wildland firefighters and wildland fire investigators.

The following amendment comes into effect on a date to be proclaimed in the future:

• Presumptive coverage for primary-site skin cancer is extended to prescribed firefighters and fire investigators, provided the worker had at least 10 years of service before being diagnosed.

Should you have any questions about the amendments introduced by Bill 190 and how they may impact your workplace, please contact a member of FREEDIN & ROWELL’s employment law department.

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As employment lawyers, we help with all employment law matters, and specifically with workplace investigations – including written investigations and findings.

These are the five most common challenges that employers can avoid when completing their investigations:

1. Identifying issues

Knowing what needs to be investigated and knowing the full scope of the investigation – from the beginning to end – is key to complete a thorough and effective written investigation. Make time before the start of the investigation to outline and understand  the issues and scope of the investigation.  If the scope changes in the middle of the investigation, then the mandate and report may have to be updated.

2. Determining follow-up issues

When the investigation is taking place, make sure to note any follow-up issues that should be addressed in the report itself, at the end of the report, or after the report is complete.  There may be parallel issues that need to be investigated (other workplace bullying, additional misconduct) as a result of the initial investigation

3. Staying organized

White undertaking the investigation, the investigator must manage and maintain documents and interviews.  They also need to come up with a plan to initiate the investigation (what documents to review, who to interview). This will not only assist during the investigation, but if a neutral third party is forced to review the investigation, it will lend credibility to the report.

4. Taking good notes

Taking detailed notes throughout the investigation (either by the investigator or an assistant) will make it much easier to fully recall key information when writing the report. Notes for any investigation should be saved in within the report file. Sometimes, the summaries of interviews can be confirmed with the interviewee for accuracy.

5. Not leaving enough writing time

The investigator needs enough time to prepare, write, edit, review, and finalize the report.  This can take more time than you think!

FREEDIN & ROWELL LLP’s employment law department is available to help if you need to start, finish, or plan out a workplace investigation.

The post Toughest Challenges When Writing a Workplace Investigation Report appeared first on FREEDIN & ROWELL LLP.

Where an employee cannot complete the basic obligations of a job, there may be no way to properly or reasonably accommodate that employee in your office.

Generally, human rights law requires employers to accommodate the disabilities of their employees – but only up to the point of undue hardship. Determining where is the “point of undue hardship” is a contentious issue. 

Luckily, the Human Rights Tribunal of Ontario has clarified what undue hardship is, where an employee cannot complete the basic obligations of a job.

In the case of Pourasadi v. Bentley Leathers Inc. (2015 HRTO 138), the Tribunal found that a retail manager not being able to serve customers rendered them incapable of performing the essential duties of the job. The Tribunal concluded that the duty to accommodate did not extend so far as to require her employer to exempt her from performing those essential duties.

Facts from Employment

The employee in question was a manager of a retail store. An important part of her job was interacting and assisting customers on a regular basis. As a result of a workplace injury to her right hand, the employee said she was limited in her ability to perform some physical tasks, including assisting customers.

After attempts to accommodate the employee, the Ontario’s WSIB accepted the employee into a retraining program.  As a result of that, the employer terminated her employment. In return, the employee filed a human rights complaint alleging discrimination on the basis of disability.

Employee’s legal argument

The employee argued that when she was working alone in the store, she should be allowed to tell customers that they had to return to the store at a later time if they required physical assistance with certain tasks (outside of her physical capabilities). She argued this would be an infrequent circumstance and not hardship to the employer.  She also argued that the duty to accommodate should require the employer to both permit her to ask customers to leave and return later when someone else could help them, and to delegate certain tasks to other employees. Since she could assist customers most of the time, she argued she was, in fact, capable of performing the essential duties of her position.

Employer’s legal argument

The employer continued to say that assisting customers was an essential part of the employee’s job; forcing the employer to permit the store manager to turn customers away would be an extraordinary and unreasonable extension of the duty to accommodate.

The employer also said that it was irrelevant how often the employee would have to tell customers to leave and come back because the accommodation the store manager wanted went to the heart of the essential duties of the employee’s position. The employer asked the Tribunal to consider the legitimate operational requirements of the workplace when assessing whether the employer had reached and surpassed its duty to accommodate.

Final Decision

The Tribunal agreed with the Employer.

It said assisting customers constituted over two-thirds of the duties of a store manager, and store managers typically worked alone for 20 hours each week. In light of these very specific circumstances of the employment relationship, the Tribunal found that assisting customers was an essential duty of the store manager position.

The Tribunal then concluded that the duty to accommodate did not extend so far as to require the employer to accommodate the employee’s injury by allowing her (when working alone) to ask customers to return to the store when other staff would be available to assist them. That was the point of undue hardship.

The Tribunal confirmed for employers and employees in Ontario that while an employer can be required to rearrange an employee’s workplace in order to allow the employee to perform the essential duties of his or her job, the duty to accommodate does not require any of the following:

• Permanently assigning the essential duties of a position to other employees;
• Permanently changing the essential duties of a position; or
• Exempting employees from performing the essential duties of their position.

Takeaways from Decision

This decision confirms how far an employer has to go to potentially rearrange its operation to accommodate an employee.  If an employee’s perfect accommodation would effectively exempt them from performing the essential functions of their job, the point of undue hardship may have been reached.

It is important to keep in mind that every workplace is different.  What is unreasonable in one place of work may be reasonable in another.  So, the determination of undue hardship will always turn on the specific facts of each case.

So, the assessment can take some time and effort.  But the critical question that is always asked in this type of situation is whether the employee is able to perform the essential duties of their position in the foreseeable future.  For this employee, since she was going to be retrained for another job, the answer was “no”.  If the answer is “yes”, then the employer will have some more work to do.

If an employer finds themselves managing the accommodation process, reach out to Jonathan Borrelli and our employment law department and we can guide you through managing your team.

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The ESA has been updated to clarify vacation pay.  Specifically, a written agreement on vacation pay is mandatory if an employer pays vacation pay in any way that is not “pay in a lump sum before the employee takes vacation.”

So, if an employer pays vacation pay on each regular paycheque or via salary continuance throughout the employee’s vacation (or any other way that is not lump sum before taking vacation), the law states that the employee must agree in writing to that arrangement.

Now is a great time for employers in Ontario to review their employment agreements.  If there is no agreement as to how vacation pay is paid, employers may need to introduce separate agreements about vacation pay in order to be fully compliant with the ESA.

If there are any other changes that may need to be made to an employment agreement (like updating a termination clause, benefits, job duties), now is the time to do it.

Reach out to our team if you have questions or need a new employment agreement made for your team.

The post Vacation Pay Agreements Mandatory as of June 21 appeared first on FREEDIN & ROWELL LLP.

If the provincial government passes Bill 190, the following changes will come into effect:

Changes to the ESA

• Every publicly advertised job posting must include a statement about whether it is for an existing vacancy. This requirement may be subject to prescribed exemptions. 
• Create a “duty to inform” job interviewees by the employer of ‘prescribed information’ (the contents of which the government has yet to determine). The “duty to inform” aims to ensure employers respond to job applicants and prevent employer “ghosting.” 
• Employees are no longer required to provide sick notes from a qualified health practitioner when exercising their right to statutory sick leave.  An employer may require the employee who takes a job-protected sick leave to provide reasonable evidence in the circumstances of their entitlement to the leave.   
• The maximum fine for individuals convicted of violating the ESA will increase from $50,000 to $100,000. 

Changes to the OHSA

• The OHSA now applies to ‘telework performed in or about a private resident. However, a private residence where a worker performs telework will not be considered an “industrial establishment” for the purposes of the OHSA.  
• The definition of workplace harassment will now include ‘virtual harassment,’ which means harassment that occurs “virtually through the use of information and communications technology.” 
• Joint health and safety committee meetings can now occur remotely rather than exclusively in-person. 
• Any employer-provided washroom facilities for worker use must be maintained in a clean and sanitary condition. 
• Employers are now permitted to post workplace materials required by the OHSA in an electronic format, provided the materials are readily accessible to all workers. 

 Changes to the WSIA

• Amendments to the WSIA will extend coverage to wildland firefighters and wildland firefighter investigators for (1) post-traumatic stress disorder and (2) primary-site skin cancer if the worker had at least ten (10) years of service before their diagnosis. 

The government has yet to propose a date for these amendments to come into force. However, we will continue to monitor Bill 190’s progress and provide timely updates. Please feel free to contact a FREEDIN & ROWELL Labour and Employment Group member with questions, comments, or concerns about these potential legislative changes.

The post Working For Workers Five Act Introduced – What This Means for Employers appeared first on FREEDIN & ROWELL LLP.

Requirements for Publicly Advertised Job Postings

On a future date (to be prescribed by regulation), all employers are required to abide by the following regarding their publicly advertised job postings:

• Employers must include information about the expected compensation, or range of expected compensation, for the job position.
• Employers are prohibited from (i) requiring job applicants to have prior Canadian work experience and (ii) including Canadian work experience requirements in any associated job application form.
• Employers must disclose whether they use artificial intelligence to screen, assess or select job applicants (the criteria for what constitutes “artificial intelligence” will be prescribed by regulation).
• Employers must retain copies of every publicly advertised job posting and associated application form for three years after the posting is removed from public view. 

Vacation Pay

Bill 149 also clarifies amendments to the Employment Standards Act’s current vacation pay provisions (“ESA”). As of June 21, 2024, employers require written agreements if they intend to pay vacation in any method other than a lump sum before the employee’s vacation. Before Bill 149, the ESA permitted an employer to pay vacation pay at an alternative time, such as on each regular pay or via salary continuance throughout the employee’s vacation, if and as agreed to by the employee. Bill 149 now clarifies that any agreement regarding a different method of vacation pay must be in writing.

Other Legislative Amendments 

As of March 21, 2024:

• Unpaid trial shifts are banned, as the definition of “employee” has been amended to confirm that work performed during a “trial period” is considered “training,” which constitutes work performed for which employers must pay employees. 
• Employers cannot make deductions from an employee’s wages or cause the employee to return their wages to the employer in circumstances that now also include where a customer of a restaurant, gas station or other establishment leaves the establishment without paying for the goods or services taken from, consumed at or received at the establishment.

As of June 21, 2024:

• When an employer has a “tip pool” or “tip sharing” policy, employers must put that policy in writing and post it in a visible place in the workplace.
• Employers must pay employee tips or gratuities by cash, check payable only to the employee, direct deposit (subject to aforementioned direct deposit requirements), or any other prescribed method.
• Accounts used for payment of wages by direct deposit must meet the following requirements: a) be selected by the employee and in the employee’s name; b) no person other than the employee or a person authorized by the employee has access to the account; and c) the account meets the prescribed criteria, if any.

On a date to be named by proclamation of the Lieutenant Governor:

• Bill 149 will amend the Workplace Safety and Insurance Act, 1997, to provide that firefighters and fire investigators diagnosed with primary-site esophageal cancer will be entitled to benefits through the Workplace Safety and Insurance Board after 15 years of employment (a 10-year decrease from the previous threshold of 25 years of employment).
• Bill 149 will amend the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, to allow the government to prescribe mandatory requirements for determining whether a regulated profession assesses qualifications transparently, objectively, impartially, and fairly.

Takeaway for Employers

Employers should review their current practices to ensure compliance with these amendments. This can include reviewing existing employment contracts to ensure they remain in compliance with the ESA, developing or redrafting applicable workplace policies, booklets, guidelines, and developing or enhancing workplace procedures related to job advertisement retention. 

Feel free to contact a member of the FREEDIN & ROWELL Labour and Employment Group with questions, comments, or concerns about these legislative changes.

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Over the past 20 years, judges across the country have found “Bad Words” and “Good Words” in employment contracts. Seasoned employers and HR practitioners know them well (“benefits,” the “common law,” mentions of previous tenure, requiring “Canadian” experience, etc.). If you don’t have the Good Words or do have the Bad Words, then the contract may not be as strong as you think – we have warned employers about the required changes to their agreements within the last few years to offer proper termination clauses.

In February 2024, one judge in Ontario has added two new sets of “Bad Words” for termination clauses in employment contracts: “in its discretion” and “at any time.”

Yes, you read that correctly: if your employees’ termination clauses contain either of those sets of words, another judge in Ontario may tell you that your termination clause is not worth the paper it’s written on.

This new guidance to employers comes from the Superior Court of Justice’s recent decision in Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029 (“Dufault”). 

In the case, the terminated employee started a claim for wrongful dismissal against the former employer. As is typical, the Court was asked to analyze the termination clause and determine whether it limited the employee to the minimum amount of termination entitlements. 

The Court found multiple defects in the termination clause (which stated, among other things: the employer “may at its sole discretion and without cause, terminate this agreement and the Employee’s employment thereunder at any time upon giving the Employee written notice etc. …” 

The employee successfully argued that the language bolded above misstates the minimum employment standards since it attempts to have ‘sole discretion’ to terminate an employee’s employment at any time – but the minimum standards specifically state that an employer is prohibited from terminating an employee’s employment, in some very specific circumstances. The Court used the following examples of where some terminations “at any time, in its sole discretion” could be a violation of the ESA: when an employee returns from a job-protected leave of absence, when an employee asks about or exercises any minimum standard right (like filing a complaint with the Ministry of Labour). In these situations, the minimum standards legislation in Ontario, the Employment Standards Act, 2000, specifically disallows an employer from terminating an employee. 

Because there was a chance that the termination clause could offend the Employment Standards Act, 2000,  the Court invalidated the termination clause and awarded the Plaintiff complete common law damages for wrongful dismissal. This is a common way for judges in Ontario to invalidate termination clauses – even if there was no evidence that the employer attempted to or did offend the law.

This is a brand new case but has received much attention online and among employment lawyers. While courts have not applied this case in other decisions, employers should be aware of the decision and the impact on the business. Any employee termination from 2022 and 2023 should be reviewed. Any existing future employee contracts should be reviewed and updated where necessary. 

In any event, FREEDIN & ROWELL will continue to monitor case law to see whether the case remains good law in Ontario and Canada. 

Don’t hesitate to contact a member of FREEDIN & ROWELL’s Labour and Employment Law Group if you need help reviewing operations or preparing strategies to mitigate potential risks. 

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