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

 

Employers must post newest version of the Employment Standards Act

Employers are required under the Ontario Employment Standards Act, 2000 to display the most recent version of the Ontario Ministry of Labour’s (“MOL”) poster “What You Should Know About the Ontario Employment Standards Act“, in at least one conspicuous location in the workplace.

In June, 2014 the MOL published a new version of the Employment Standards Poster (version 5.0). All workplaces are required to remove the former version and replace it with version 5.0. The poster must be printed on legal size (8 ½” x 14”) paper and in color or black and white.

The poster is free and available online.

Set out below is a summary of other workplace posting requirements for Ontario employers

The Occupational Health and Safety Act

Employers must post:

  1. A copy of their Occupational Health and Safety Policy. A good example of a health and safety policy can be found on the Ministry of Labour’s Website.
  2. A copy of the Occupational Health and Safety Act. Employers can obtain a free copy of the Act or purchase a copy of it at ServiceOntario Publications for $8.00.
  3. Their workplace violence and harassment policies (in a workplace that has five or more employees).
  4. The names of joint health and safety committee members and their work locations (in a workplace that has 20 more employees regularly employed).
  5. As of October 1, 2012 – the poster “Health & Safety at Work – Prevention Starts Here

The Workplace Safety and Insurance Act

The “In case of Injury—1234poster must be prominently displayed in every workplace covered by the Workplace Safety and Insurance Act.

The poster is provided free of charge to employers covered by the Workplace Safety and Insurance Act.

Smoke-Free Ontario Act

All employers are required to post No Smoking signs at all entrances, exits, washrooms and other enclosed work locations in order to ensure that everyone knows that smoking is prohibited. No Smoking signs can be obtained from your local public health unit in your area. Click here to find your local public health unit.

For further information please contact our Senior Human Resources Counsel, Maria McDonald at 416.967.7100 x228 or mm@ddohealthlaw.com.

Three new statutory leaves of absence under the Ontario Employment Standards Act

On October 29, 2014, three additional unpaid leaves of absence are available to employees covered by the Ontario Employment Standards Act, 2000 (“ESA”):

  1. Family caregiver leave,
  2. Critically-ill child care leave, and
  3. Crime-related child death or disappearance leave.

These leaves are in addition to leave entitlements that may arise under certain other ESA provisions.

Highlights of the new leaves are outlined below:

Family Caregiver Leave (s. 49.3)

Immediately upon employment employees are entitled to up to eight weeks unpaid leave (which need not be taken in full weeks) to provide care or support to certain family members with a serious medical condition.  The employer may require a medical certificate from a physician, registered nurse or psychologist.

  • “Serious medical condition” is not defined other than that it includes “chronic” or “episodic” conditions. There is no reference to a significant risk of death. The lack of definition leaves this open to a broad range of medical conditions.
  • This leave only applies to:
  • Note that up to eight weeks per calendar year may be taken for each listed individual with a serious medical condition.
    • Employee’s spouse;
    • Parent, step-parent or foster parent of the employee or the employee’s spouse;
    • Child, step-child or foster child of the employee or the employee’s spouse;
    • Grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;
    • Spouse of a child of the employee;
    • Employee’s brother or sister;
    • Relative of the employee who is dependent on the employee for care or assistance; and
    • Any other individual prescribed as a “family member”.

Critical Illness of a Child Leave (s. 49.4)

Parents of a critically-ill child, step-child, foster child or child under legal guardianship who is under 18 are entitled to up to 37 weeks unpaid leave within a 52-week period. The employer may require a medical certificate.  This leave becomes available following six months of employment and need not be taken in full weeks.

  • “Critically–ill” means the child’s baseline state of health has significantly changed and the child’s life is at risk due to illness or injury.

Crime-related child death and disappearance leave (s. 49.5)

Parents’ are entitled to up to 104 weeks unpaid leave for the death of, and 52 weeks unpaid leave for the disappearance of, a child, step-child or foster child who is under 18 where the death or disappearance is the probable result of a crime. The employer may require reasonable evidence of entitlement to this leave. This leave becomes available following six months of employment and must be taken in a single period.

For further information please contact: Maria McDonald, our Senior Human Resources Counsel, at 416.967.7100 x228 or mm@ddohealthlaw.com.

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