Unionized Employers Cannot Force Health-Care Workers to Wear Masks in Flu Season

Sault Area Hospital (the “Hospital”), like approximately 30 other hospitals in Ontario, required health-care workers to wear surgical/procedure masks  each year throughout the five to six month flu season if they were not vaccinated for influenza (“Vaccinate or Mask Policy” or “VOM policy”).  The VOM policy required masking of healthcare workers even if they were asymptomatic and regardless of whether there was an influenza outbreak.

Vaccination was optional under the Hospital’s collective agreement. The Hospital unilaterally implemented the mandatory VOM policy for employees who chose to exercise their right under the collective agreement not to get vaccinated.

The Ontario Nurses Association (“ONA”) challenged the VOM policy on the basis that it coerced employees into being vaccinated by “outing” them with mandatory masks if they chose not to be vaccinated.

The Hospital’s position was the VOM policy was necessary for patient safety as it reduced the transmission of influenza virus to patients.

The arbitrator held that wearing masks for five or six months at a time was extremely unpleasant. Employees also felt that they were being put on display for having refused to get vaccinated. After hearing extensive evidence from numerous experts, the arbitrator held there was “scant” evidence the use of masks reduced the transmission of influenza virus to patients or protected health-care workers.

The VOM policy was struck down as an unreasonable exercise of employer’s rights under the collective agreement.

Bottom line for health-care employers:

  1. Unionized employers should revise their influenza policies to ensure compliance with this latest decision. Here is a link to the full decision.
  2. Non-unionized employers are not directly affected as this decision does not specifically apply to non-unionized workplaces. However, these employers should revise and reconsider such policies considering hospital policies are often used as benchmarks for other health-care workplaces.

 

Employment Law Call-In Program for Health Care Organizations

DDO Health Law is proud to announce a new monthly call-in program dedicated to employment law issues for health care organizations.

This teleconference offers a cost-effective and convenient way for managers and human resources personnel for health care organizations to stay current on legal issues. You will learn how to save your organization money by avoiding the most common and costly mistakes in managing employees.

Topics for 2015/2016

September 29             New developments in the enforceability of employment contracts

October 27                 Accommodating mental illness in the health care workplace

November 24              New developments in 2015 on overtime and hours of work

December                    NO CALL

January 26                   Termination of employment – pitfalls and solutions

February 23                 FAQs and practical answers on accommodating family responsibilities

March 29                      The Employment Standards Act – most common mistakes

April 26                         How to conduct a proper workplace investigation

May 3                            Recent cases on “just cause terminations”

June 28                         How to avoid age discrimination in the workplace

Monthly calls are scheduled over the lunch hour from 12pm – 1pm on the last Tuesday of the month.

Benefits

  • For one price, you get 9 calls on the latest legal topics and trends
  • You can have as many people from your organization on each call as you wish, the flat fee is per employer
  • The calls are exclusively for health care employers; the topics discussed come from our firsthand experience advising hospitals, long-term care homes, family health teams, community agencies, health charities and other health care organizations on their most common and costly human resources problems
  • The calls are designed for adult learners and use storytelling and scenarios to keep you interested
  • You will have a chance to ask questions and share stories with your colleagues
  • You can be added to our email list to receive legal updates as they happenThe teleconference is offered as a flat rate subscription per employer. The cost is $600 plus HST.

Cost

The teleconference is offered as a flat rate subscription per employer. The cost is $600 plus HST.  Early Bird Discount: Sign up by August 31st and save $100 ($500 + HST). Please contact Franca Latino at flatino@ddohealthlaw.com for details about this program, fees and how to sign up.

Accommodating Health Care Workers’ Child Care Responsibilities

The Ontario Human Rights Code (the “Code”) prohibits employers from discriminating against employees based on family status. This means that employers must accommodate employees who have child care responsibilities.  This most often involves a request for modified schedules to allow employees to accommodate child care needs.

The scope of the duty to accommodate is still being debated by the courts and the Ontario Human Rights Tribunal; however, the most recent law from the Ontario Superior Court of Justice (Partridge v. Botony Dental Corporation) requires employers to adhere to a four-part test in determining accommodation requirements for employees’ child care responsibilities.

The four-part test to prove discrimination is as follows:

1)     A child is under the employee’s care and supervision;

2)     The child care obligation at issue engages the employee’s legal responsibly for the child, as opposed to a personal choice. Specifically, a parent has a legal obligation to ensure a child has safe and adequate child care while he/she is at work;

3)     The employee has made reasonable efforts to meet his/her child care obligations through reasonable alternative solutions, and no such alternative solution is reasonably accessible; and

4)     The impugned workplace rule interferes in a manner that is more than trivial or insubstantial with the fulfillment of the child care obligation.

If discrimination is established based on these four factors, the employer can be relieved of the accommodation obligation if it can show that the policy (e.g., the scheduling) is a bona fide occupational requirement and the employee cannot be accommodated without undue hardship.  Each case must be considered on an individual basis.

Failure to accommodate can lead to significant damage awards. In the Partridge case, the court awarded $20,000 for injury to dignity, feelings and self-respect. Additional damages can be awarded for lost wages if the employee is terminated as a result of failing to adhere to a set schedule and the employer has failed to accommodate.

Bottom line for healthcare employers:

  1. All requests for schedule accommodation due to child care commitments must be considered on an individual basis. In other words, employers have to consider each case separately and cannot utilize a “one policy fits all” approach.
  2. Employers must communicate and work with employees to try to find a solution. Documentation is very important. We recommend that conversations be followed up with a confirmation email.
  3. Accommodation is not restricted to the most extraordinary situations; however, the childcare situation must be more than trivial or insubstantial.
  4. The employee must make reasonable efforts to find childcare that will allow him/her to work according to the employer’s schedule.
  5. Accommodation is required to meet an employee’s childcare needs, not preferences.

It should be noted that elder care is also covered by the definition of “family status” under the Code. As such, employers must accommodate these needs as well. It is not certain at this point whether the four-part test will be applied in the case of elder care accommodation, because employees don’t have “legal” obligations (part 2 of the four-part test) to care for parents. This issue is currently at the centre of a case before the Ontario Human Rights Tribunal (Misetich v. Value Village Inc. et. al.). Misetich has not yet been decided – we will keep you apprised of any developments. In the meantime, we advise employers to give elder care accommodation requests the same consideration as child care accommodation requests.

Immediate! ESA Posting Requirements for all Health Care Employers

As of May 1, 2015 health care employers are required to post the most recent version 6.0 of the Employment Standards Poster published by the Ministry of Labour in the workplace where it is likely to come to the attention of employees. The poster must be displayed in English. If the majority language of a workplace is a language other than English, and the Ministry has published a version of the poster in that language, the employer is required to post a copy of the translation next to the English version of the poster. This link will connect to other language versions of the poster.

This poster must replace the previous 5.0 version. It can be printed in black and white or in colour. The PDF format (and not the HTML copy) of the poster must be posted in the workplace.

As of May 20, 2015 health care employers are required to provide their employees with the PDF copy of the most recent version of the Employment Standards Poster. It may be provided electronically or in hard copy. Employees may request a poster in another language (as long as the Ministry of Labour has published a poster in that language – see the above link for different language versions).

To do:

  1. Immediately replace current 5.0 poster with new 6.0 poster.
  2. By May 20, 2015 provide all employees with an electronic or hard copy of the 6.0 poster.

Broader Public Sector Executive Compensation Act:  How the government’s most recent initiative to control broader public sector spending affects health care organizations

On March 16, 2015, the Broader Public Sector Executive Compensation Act, 2014 (“BPSECA”) came into force. BPSECA authorizes the government to control public sector executive compensation by establishing sector specific hard caps and enforcement measures to ensure compliance.

DDO’s September 2014 blog discussed the details of the executive compensation restraint measures in the BPSECA. Generally, the BPSECA permits the government to establish “compensation frameworks” for senior public sector executives who make more than $100,000 in compensation per year (or could potentially reach that level).

These compensation frameworks, if imposed on an employer, will replace the existing executive compensation restraints imposed by the Broader Public Sector Accountability Act, 2010 (“BPSAA”).

 The BPSECA applies to the same broader public sector employers as the BPSAA, including hospitals, universities and colleges of applied arts and technology.

 The BPSECA also applies to “designated employers” such as community care access corporations, local health integration networks, Ornge, and “everybody prescribed as a public body under the Public Service of Ontario Act, 2006 that is not also prescribed as a Commission public body under the Act”. This includes Cancer Care Ontario, eHealth Ontario, Metrolinx and Trillium Gift of Life Network. Please note this is not an exhaustive list of public bodies covered by the BPSECA. Please contact us if you are uncertain as to whether your organization is covered by this legislation.  For now, other health care organizations including family health teams, community health centres and long term care homes are not impacted.

On April 1, 2015, the Ontario government released the Broader Public Sector Compensation Information Directive. The purpose of the Directive is to require every designated employer to provide information relating to executive compensation to the government. This information will be used to create a benchmarking system for the management of executive compensation in the broader public sector.

Hospitals, community care access corporations and other designated health care employers can expect to receive a written request from the government requesting compensation information. Responses to that request within the time line specified in the request are mandatory.

Designated employers will be required to complete a standardized form (Appendix B of the Directive) which requests disclosure of  executive compensation elements such as salary, paid annual incentive pay, signing bonus, retention bonus, paid leave, benefits, loans, pension arrangements, salary ranges, maximum  annual incentive amounts, annual incentive targets  and severance pay.

The standardized form also requests information about the compensation structure of the highest paid non-executive managerial level, band or classification which directly reports to an executive position. This information may be used to solve an ongoing issue whereby executives were making the same or even less than their direct reports because of the wage freeze.

Finally, employers may also have to provide actual documentation for the following:  employment agreements, compensation plans and compensation studies.

Bottom line: Hospitals, community care access corporations and certain other health care organizations should notify their finance and/or human resources personnel to expect receipt of a formal written request for disclosure of compensation information and to comply within the timelines indicated.

Please contact Maria McDonald, Senior Human Resources Counsel, if you have any questions about the BPSECA.

416.967.7100 ext.228

mmcdonald@ddohealthlaw.com

 

 

Bill 18 – Changes to workplace laws and what those changes mean for health care organizations

Bill 18, Stronger Workplaces for Stronger Economy Act, 2014 received Royal Assent on November 20, 2014. It amends many workplace laws including the Employment Standards Act (“ESA”), the Occupational Health and Safety Act (”OHSA”) and the Workplace Safety and Insurance Act, 1997 (“WSIA”).

These changes become effective on various dates as set out below.

 Minimum Wage

  1. The minimum wage will increase annually based on the Ontario Consumer Price Index. Notice of the increase will be announced each year on April 1; effective on October 1 of the same year. The first increase from $11.00 to $11.25 is effective October 1, 2015.

TO DO: If you have staff who are paid at the minimum wage or whose wages are tied to the minimum wage, notify your human resource personnel to monitor the changes annually and let your accounting department know.

 

Claims for Unpaid Wages

  1. Effective February 20, 2015, the $10,000 limit on unpaid wage claims is eliminated.  Employees can now claim for any amount. Employees also have 2 years to make a claim; an increase over the prior 6 month time frame.

TO DO: No action necessary.

 

ESA Poster

  1. Employers must provide a copy of the ESA poster to:
  • current employees by June 30, 2015
  • new employees within 30 days of becoming an employee (after May 30, 2015).

Effective May 20, 2015, an employer must inquire whether the Ministry has prepared a translation of the poster into another language if an employee makes a request.

TO DO: Notify your human resource personnel to download and save the ESA Poster, which can be found at http://www.labour.gov.on.ca/english/es/pdf/poster.pdf .  Add to your orientation package for new employees and make sure to distribute to all existing employees before June 30th.

 

ESA Self-Audit

  1. Effective May 20, 2015, employers may be required by an Employment Standards Officer to conduct a self-audit to ensure compliance with the ESA. Employers will be required to correct any deficiencies uncovered by the audit.

TO DO: Consider doing a proactive self-audit of your ESA compliance. Contact Maria McDonald for assistance.

 

Temporary Agency Employees

  1. Effective November 20, 2015, employers who use temporary agencies may be held responsible for temporary employees’ unpaid wages, overtime pay or public holiday pay if the temporary agency fails to pay. Employers must also keep records of the hours worked by any temporary employee for 3 years.

TO DO: If you use temporary agency staff, notify your human resource personnel of this change.

 

Unpaid interns

  1. Effective November 20, 2015, unpaid workers or interns (specifically high school students under an approved work experience program, college/university interns or co-op students on an approved college/university program and other unpaid trainees) who provide work or perform services are considered workers under the OHSA.   As such, these unpaid workers must receive mandatory violence/harassment program instruction and basic awareness health and safety training. It is unclear whether this applies to volunteers.

TO DO: If you use unpaid workers or interns, notify your human resource personnel of this change. Initiate a plan to ensure your     unpaid workers and interns receive the necessary training.

 

Future Possible Changes to WSIA

  1. Bill 18 allows the government to make future changes to hold employers responsible for accidents to temporary employees.  The accident costs could be attributed to the employer instead of the temporary agency; thereby increasing the employer client’s premium costs.  This provision is not in effect at this point as the government is further considering the issue.

TO DO: No action necessary.

 

Employment Protection for Foreign Nationals Act (Live-in Caregivers and Others), 2009 (“EPFNA)

  1. Effective November 20, 2015, the EPFNA will apply to all foreign nationals working in Ontario pursuant to an immigration or foreign temporary employee program and not just to “Live-in Caregivers and Others”.

TO DO: If you employ foreign nationals as staff, notify your human resource personnel to review these provisions carefully.

 

Open Periods for Decertification under the Labour Relations Act

  1. Effective May 30, 2015, the open period for decertification or a displacement application in the Construction sector has been decreased from 3 months to 2 months.

TO DO: No action necessary.

 

Please contact Maria McDonald, Senior Human Resources Counsel, if you have any questions about how these changes will impact your organization.

416.967.7100 ext.228

mmcdonald@ddohealthlaw.com

 

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