By Lesha Vanderbij and Gayle Wadden
Whether you have been managing a remote or an in-person workforce for the last year, you have probably spent much of your time responding to the upheaval caused by the COVID-19 pandemic.
With vaccines rolling out and (hopefully) a return to normal on the horizon, it is a good time to consider an HR audit.
Review your HR processes and procedures, and determine whether they comply with employment law requirements. This review is also important if you are looking at accreditation. Specific requirements vary by province, but here is a quick review of key requirements to keep in mind.
Hours of Work
Employees who work more than a set number of hours per week must receive overtime pay (i.e., 1.5 times their regular wages). Employers cannot require employees to work in excess of daily or weekly hour limits – even with overtime pay – unless they have an averaging or excess hours agreement in place.
Typically, employees are entitled to a 30-minute break for every 5 hours worked, and minimum hours free from work
between shifts and/or each week.
Leaves of Absence
Employees are entitled to many different leaves of absence, including bereavement, child death and disappearance, compassionate care, critical illness, domestic and sexual violence, emergency and public health, family responsibility leave, jury duty, organ donor leave, pregnancy and parental, reservist and sick leaves. The lengths of leaves, eligibility periods and who qualifies as a family member vary from one province to the next.
Public Holidays
Provided that employees meet eligibility requirements (e.g., have been employed for the threshold number of days before the holiday and/or work as scheduled before/after/on the holiday), they are entitled to be paid for public holidays. Entitlements vary depending on whether or not the public holiday falls on an ordinary working day and the jurisdiction of employment.
Termination of Employment
In addition to employment standards legislation, there are other sources of law (including prior court decisions) that apply when an employee’s employment is terminated. This means that an employer may be required to provide more notice and termination pay than the minimums set out in the legislation. It is often best to consult a lawyer when dismissing an employee.
Vacation
Generally, after one year of employment, employees are entitled to two weeks of vacation. This increases to three weeks after 5-15 years of employment, depending on the jurisdiction of employment. Vacation must be taken every year within 4-12 months of being earned and cannot be carried over to another year. Employers are also required to provide vacation pay of 4-6%.
Health & Safety Committees
Typically, workplaces with 20+ employees must have a joint health and safety committee, and smaller workplaces must have a health and safety representative. Committees/representatives are involved in workplace inspections and investigations, policies and programs, employee complaints and recommendations.
First Aid
All workplaces must have first aid equipment and supplies, a certified first aid attendant and a designated area for first aid services. Larger workplaces may also be required to provide a first aid room.
Harassment & Violence
Almost every jurisdiction in Canada requires employers to conduct an assessment of their workplace, and develop harassment and violence policies and procedures. Typically, these policies must reference an employer’s commitment to minimizing/eliminating harassment and violence, and include procedures for providing employee information and training, and reporting, documenting and investigating incidents.
Policies & Programs
In addition to harassment and violence policies, most Canadian jurisdictions require employers to develop general health and safety policies and programs.
Posters & Employee Information
Under employment standards and health and safety legislation, every workplace must post and/or make available numerous posters, notices and other employee information. For a list of the information required, see our blog post: Mandatory Posting Requirements – A Cross-Canada Checklist.
Records
All employers must keep employment records for specified periods of time, including general employment information, hours worked, leaves of absence, vacation, accident reports and first aid, and training.
Training
Employers must provide employees with training on a range of topics, including workplace violence and harassment, emergency procedures, and general health and safety. Some provinces also require training on working alone and ergonomics, as well as special programs for new or young workers. In addition, employers must ensure that their first aid attendant is trained in first aid procedures, and where applicable, training is provided to health and safety committee members.
Human Rights
Employers cannot refuse to employ or discriminate against a person based on prohibited grounds. Typically, these grounds include race, citizenship, creed, sex, sexual orientation, gender identity or expression, age, marital or family status, and disability.
Accessibility
Employers in Ontario and Manitoba must comply with accessibility standards, including developing an accessibility plan and/or policies, ensuring that their employment practices take into account the needs of employees with disabilities, providing accessibility training to employees and meeting additional record-keeping and reporting requirements. Federally regulated employers and those in Nova Scotia should also keep an eye out for pending accessibility legislation.
Privacy
Employers must be mindful of their employees’ privacy. Even if no specific legislation applies to an employee’s privacy, there are situations where an employee can sue for breach of privacy. Beyond employment, organizations must make sure that they are collecting, using and disclosing personal information in accordance with privacy laws. The requirements typically focus on consent and ensuring that personal information is kept secure.
Wrap Up
It is important to ensure that your practices, policies and template documents comply with employment standards, health and safety, human rights, privacy and, as applicable, accessibility legislation. This general overview highlights some key areas of concern. If you need additional help, please check out Optimize Compliance for more resources and to learn more about how we simplify HR compliance. Optimize Compliance provides up-to-date plain language summaries of employment law requirements across the country and provides you with notice of upcoming changes.
Optimize Compliance is co-founded by Lesha Vanderbij and Gayle Wadden. Lesha and Gayle are both lawyers with over 20 years of labour and employment, pensions and legal research experience.
Lesha’s experience includes practicing law and leading knowledge management initiatives at a national law firm. More recently, as a consultant, Lesha helped law firms and in-house teams develop better resources and improve service delivery. A regular contributor of Tech Tips to SlawTips, Lesha enjoys testing out new apps and technology.
Gayle’s experience includes both practicing law and leading knowledge management initiatives at national and regional law firms. Gayle is also a legal researcher and developer, and provider of legal education programs for lawyers.
