The Non-Working Worker: A Practical Guide for Dealing with Employee Absences
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The Non-Working Worker: A Practical Guide for Dealing with Employee Absences



In this presentation, Dentons' Jeff Bastien, Andrea Raso and Dana Hooker discuss the following topics: ...

In this presentation, Dentons' Jeff Bastien, Andrea Raso and Dana Hooker discuss the following topics:
- "When They're Not at Work: Managing Employees on Leave"
- "When They Don't Return: Managing Employees Who Are Unwilling or Unable to Return"
- "They're Baaaaack...: Managing Reintegration and Performance Expectations"



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The Non-Working Worker: A Practical Guide for Dealing with Employee Absences The Non-Working Worker: A Practical Guide for Dealing with Employee Absences Presentation Transcript

  • The Non-Working Worker: A Practical Guide for Dealing with Employee Absences November 20, 2013
  • When They’re Not at Work: Managing Employees on Leave Jeff Bastien Associate, Dentons Canada LLP
  • Overview of Leaves Statutory (Employment Standards Act) • Protected leaves under the Employment Standards Act are unpaid • Employees may be eligible for other compensation during leaves (e.g. EI) • ESA leaves are statutory entitlements; employer has no discretion as to whether or not to grant the leave; no minimum period of employment required • Pregnancy Leave • Parental Leave • Family Responsibility Leave • Compassionate Care Leave • Reservists’ Leave • Bereavement Leave • Jury Duty
  • Employment Standards Act Pregnancy Leave • Commencing: between 11 weeks before due date, and actual birth date Date of Birth 11 weeks prior 6 weeks after 17 weeks after • Ending: between 6-17 weeks after actual birth date (unless the employee requests a shorter period) • Duration: up to 17 consecutive weeks • The employee is entitled to schedule the dates of her leave
  • Employment Standards Act Pregnancy Leave • Pregnancy Leave requests: • must be in writing • must be given to the employer at least 4 weeks before day of proposed leave • Additional leave: • If, for reasons related to the birth or the termination of the pregnancy, the employee is unable to return to work, she is entitled to an additional 6 months of leave. • Employers may require a medical certificate to support the leave or state the reasons for requesting the additional 6 months of leave
  • Employment Standards Act Parental Leave • Birth mother who takes pregnancy leave: • Up to 35 consecutive weeks of leave beginning immediately after the end of the pregnancy leave (unless otherwise agreed between the employee and employer) • Combined effect: total leave = 52 weeks • Birth father / adopting parent / birth mother who does not take pregnancy leave: • Up to 37 consecutive weeks of leave beginning within one year of the child’s birth or placement with adoptive parents • Additional leave: • up to 5 consecutive weeks if the child has a physical, psychological or emotional condition requiring an additional period of parental care
  • Employment Standards Act Family Responsibility Leave • Up to 5 days per year • Purpose: to meet responsibilities related to • the care, health or education of a child in the employee’s care; or • the care or health of any other member of the employee’s immediate family • No explicit requirement for employees to provide notice or request this type of leave in writing. • Although employers have no discretion to refuse to grant ESA leaves, if the employee fails to provide sufficient particulars for the employer to determine that the employee is entitled to Family Responsibility Leave, the employer may refuse. • Employee must disclose: identify of the person; relationship; and that the absence is for the care or health of a family member or the care, health or education of a child. The exact nature of a healthrelated concern is not required. [Re Phillips (8 August 20000), BCEST #D307/00 (Love)]
  • Employment Standards Act Bereavement Leave • Up to 3 days of leave on the death of a member of the employee’s immediate family • No requirement that the 3 days be consecutive
  • Employment Standards Act “Immediate Family” defined • “Immediate family” means: a) the spouse, child, parent, guardian, sibling, grandchild, or grandparent of an employee b) any person who lives with the employee as a member of the employee’s family
  • Employment Standards Act Compassionate Care Leave • Up to 8 weeks within a 26 week period (taken in units of at least 1 week) • Purpose: to provide care or support to a family member who has a serious medical condition with a significant risk of death within 26 weeks (medical practitioner to issue a certificate in support) • 26 week period starts when the certificate is issued, or if the employee went on leave before he/she was able to obtain a certificate, on that date • Ends on the last day of the week in which the earlier of the following occurs: • the family member dies • the 26 week period expires • Extension: if the family member does not die within the 26-week period, the employee may take a further leave by obtaining a new certificate
  • Employment Standards Act “Family Member” defined • “Family member” means: a) a member of the employee’s immediate family, and b) any other individual who is a member of a prescribed class: • Compassionate Care Leave Regulation, BC Reg 281/2006 s 2 • Extensive list of classes of individuals considered to be a “family member” • Includes step-siblings, foster parent/child relationships, aunts/uncles, nieces/nephews, etc. • Catch-all provision: “whether or not related by blood, adoption, marriage or common law partnership, an individual…who considers the employee to be, like a close relative”
  • Employment Standards Act Reservists’ Leave • An employee who is a reservist and who requests Reservists’ Leave is entitled to a leave in relation to: • deployment to a Canadian Forces operation outside Canada, or engagement in pre-deployment or post-deployment activity required by the Canadian Forces in connection with such an operation; • deployment to a Canadian Forces operation inside Canada that is or will be providing assistance in dealing with an emergency or with its aftermath; or • prescribed circumstances (e.g. support for the 2010 Olympics) • Duration: as long as the deployment applies to the employee
  • Employment Standards Act Reservists’ Leave • Requests must: • be in writing; • be given to the employer at least 4 weeks before leave is to begin, or as soon as practicable after the employee receives the notice; • include the proposed date for the leave to begin and the proposed date of return. • If circumstances require the leave to be extended, the employee must provide notice following similar guidelines as for the original request • If an employee proposes to return to work earlier than the anticipated date of return, he/she must provide notice at least one week before
  • Employment Standards Act Reservists’ Leave • If required by the employer, the employee must provide information reasonable in the circumstances to explain why the employee is entitled to Reservists’ Leave
  • Employment Standards Act Jury Duty • If an employee is required to attend court as a juror, the employee is treated in the same manner as if that employee was on leave under Part 6 of the Employment Standards Act • This section does not set out duration, notice, extensions, etc.
  • Statutory (ESA) Leaves Duties of Employer • Must not, because of an ESA leave or an employee’s pregnancy: • terminate employment • change a condition of employment without employee’s written consent (s. 54(2)) • “condition of employment” = all matters and circumstances that in any way affect the employment relationship of employers and employees • Changes/terminations acceptable if unrelated to the absence and would have occurred even if the employee had been at work (Note: the onus is on the employer to prove this) ***Human Rights Code is also important***
  • Statutory (ESA) Leaves Duties of Employer - Redundancy Q: What if an employer discovers that an employee on leave is no longer needed, or his/her position has been changed or eliminated for legitimate business reasons? • True Redundancy  employer must be able to establish that the termination would have occurred regardless of the leave. • If an employer only realizes that a position is unnecessary because the company was able to function without the employee on leave, termination would be a breach of the ESA • Even if the leave or pregnancy is just one of many reasons for the change/termination, it is still a breach of the ESA • If terminating an employee on leave due to redundancy, a generous severance package may be offered in exchange for a release
  • Statutory (ESA) Leaves Duties of Employer - Redundancy Q: What if an employer likes a replacement employee better, or just feels that the workplace is better without the employee on leave?
  • Statutory (ESA) Leaves Notice of Termination while on leave • If an employee needs to be terminated for true redundancy, the employer should provide the employee with notice of termination even though he/she is on leave • Note that “working notice” of termination is not an option • Time on leave cannot count as towards a notice period: • ESA s. 67(1)(a): A notice given to an employee under this Part [termination of employment] has no effect if (a) the notice period coincides with a period during which the employee is on annual vacation, leave, temporary layoff, strike or lockout or is unavailable to work due to a strike or lockout or medical reasons… • Employer must provide pay in lieu of working notice
  • Statutory (ESA) Leaves Duties of Employer • Must, as soon as the leave ends: • place the employee to the same position held before the leave, or in a comparable position (s. 54(3))
  • Statutory (ESA) Leaves “Comparable Position” • When determining a “comparable position”, the conditions of employment which are considered include, but are not limited to, the following: • • • • • • • • • • job title job duties reporting relationships status as perceived by other staff and the public pay package benefit plans hours of work location of work location of office, desk provision of equipment and tools • Employees have no duty to mitigate by accepting employment on terms that breach s. 54
  • Statutory (ESA) Leaves Employment deemed continuous during leave • The services of an employee on leave or jury duty are deemed to be continuous for the purposes of: • Vacation entitlement • Length of service (for calculating statutory minimum notice of termination) • Pension, medical or other benefit plans • The employee is entitled to all increases in wages and benefits the employee would have been entitled to had the leave (or jury duty) not been taken
  • Statutory (ESA) Leaves Payment of benefit premiums during leaves • Employers must continue to make payments to pension, medical or other benefit plans as though the employee was not on leave (or on jury duty) • If the employer normally pays the full cost, then it continues to pay the full cost • If the employee normally pays a portion of the plan, then the employer must continue to pay its share if the employee chooses to continue to pay his or her share of the cost while on leave • If the employee chooses not to continue to pay his/her portion, the employer is not required to maintain coverage during the leave, but must reinstate coverage without any waiting period upon the employee’s return to work • Note: this requirement does not apply for Reservists’ Leave
  • Statutory (ESA) Leaves Consequences of breaching ESA leave provisions • If an employer contravenes the ESA, the Director of Employment Standards may order, among other things: • compliance with the ESA • the posting of a notice of the determination, with information about the ESA • payment of wages to an employee AND • reinstatement with payment of lost wages • compensation instead of reinstatement • payment of reasonable and actual out of pocket expenses incurred because of the contravention AND • a monetary penalty
  • Statutory (ESA) Leaves Vacation entitlement while on leave • If vacation entitlement is based on paid weeks of vacation (most employers): • Vacation time and pay remains the same • If vacation pay is based on a percentage of earnings: • Vacation time entitlement remains the same • Vacation pay reflects the reduced earnings, based on actual wages earned in the vacation year • Employers that provide vacation time/pay in excess of ESA minimums may not reduce such vacation time/pay because the employee is on leave or jury duty
  • Statutory (ESA) Leaves Holidays while on leave • Employees must have worked or earned wages for 15 of the 30 calendar days preceding a statutory holiday to be eligible for statutory holiday pay • Employees on leave/jury duty usually not entitled to statutory holiday pay • Exceptions: • Where employee went on leave after working or earning wages for 15 of the 30 calendar days preceding the statutory holiday • Where the contract of employment provides otherwise
  • Human Rights Code and leaves • The Human Rights Code overlays the ESA • Even if an employee is not strictly entitled to leave under the ESA, the Human Rights Code may nevertheless require that the leave be granted • Relevant protected grounds: physical and mental disability, family status, sex • Employer has a duty to accommodate
  • Employment Insurance and leaves • Employees on leave may apply for Employment Insurance (EI) benefits • 2-week waiting period • Disconnect between parental leave and EI parental benefits: • ESA parental leave must start (but not necessarily end) within 52 weeks of birth; EI parental benefits end 52 weeks after birth • Effective June 9, 2013: Special EI benefits for Parents of Critically Ill Children
  • Discretionary Leaves Contractual/Gratuitous Leaves • Disability leaves • Sick leave • Personal leaves • Sabbaticals • ESA job protection not applicable • But, still must not contravene the Human Rights Code • No terminations unless unrelated to the disability – i.e. restructuring, shutdown, etc. where other employees of the same class are similarly terminated • Possible that employment becomes frustrated after significant period of time (e.g. 7-8 years) • Continuation of benefits similar as for statutory leaves
  • Best Practices • Confirm dates of leaves of absences • Discuss continuation of benefits with employee • Refer employees to Service Canada regarding EI benefits – advise that for some leaves (e.g. parental, compassionate care), EI entitlement is split between partners or only given to one • Check-in with employees regarding expected return to work date • Consider employees on leave for promotions • Do not rely on plain wording of the ESA to determine whether or not to grant a leave – Human Rights Code
  • Questions? Jeff Bastien (604) 443-7104
  • When They Don’t Return: Managing Employees Who Are Unwilling or Unable to Return Andrea Raso Partner, Dentons Canada LLP
  • 1. Unwilling to Return 1. Cleared for return to work but claims poisoned work environment/stressors still exist 2. Cleared for return to work but claims still ill/injured 3. Cleared for return to work but claims position not comparable or suitable
  • 2. Unable to Return to Work: • Not fit to return to accommodated or regular duties after an extended absence
  • Unwilling to Return • 1. Cleared but claims poisoned work environment/stressors still exist • Consider outcome of your investigation (Workers Compensation Act; Human Rights Code; general workplace disputes policy) • Mediation (careful not to trigger the past) • Remove stressor as a form of accommodation • Remove employee from stressor as a form of accommodation • If employee is still unwilling: 1. Unpaid leave but follow up 2. Because of the subjectivity involved in these situations, you will need to tread carefully before terminating: (a) Difficult to establish cause so severance will be needed: may need to provide more than reasonable notice at common law (b) Work with health care provider/insurer before terminating (c) Consider the impact of termination on benefits
  • Unwilling to Return • 2. Cleared but claims still injured/ill • Clearance by insurer vs. employee’s doctor • Insurer: • Employee will appeal • Put Employee on an unpaid leave but ensure follow up • Only terminate once employee has lost all appeals, completed litigation, and still refuses to return to work • Doctor: • Send employee for an IME • If IME concurs with doctor and employee still refuses, warn employee of consequences of failure to return to work (i.e. summary dismissal) • If employee does not return after two warnings, and does not seek own alternative prognosis, then terminate
  • Unwilling to Return • 3. Cleared but claims position not comparable or suitable • Employee has a duty to cooperate in accommodation process (if there is an underlying human rights issue) • Put employee on unpaid leave of absence while you continue to look for other comparable roles • Warn employee that failure to cooperate, or if no alternative suitable position is found in near future, employee will be summarily terminated for failure to return to work • If employee subsequently refuses another alternative position, then terminate
  • Unable to Return • Not fit to return to accommodated or regular duties • Prognosis: Is there a chance the employee will ever be fit to return? • As long as there is the possibility that the employee may return, you cannot terminate: “Frustration” takes years. • If no possibility of a return to work according to medical information or many years have passed, frustration can be deemed to have occurred • But, consider impact on termination of health, dental and life insurance benefits.
  • Questions? Andrea Raso (604) 622-5152
  • They're Baaaaack...: Managing Reintegration and Performance Expectations Dana Hooker Associate, Dentons Canada LLP
  • Reintegration: Economic Sense Employers – Direct & Indirect Costs: • Direct: lost production and productivity • Indirect: replacing workers, disability administration Organization for Economic co-operation and Development (OECD): • 34 OECD Member States spend average of two percent of GDP on disability and sickness benefits. • In some member states this can increase to as much as 5 percent. (source: International Labour Organization, “From sick to fit: Case management gaining ground as work reintegration tool”) These costs are expected to increase as society ages
  • Reintegration: Legal Obligations Human Rights Code • Section 13: 13 (1) A person must not • (a) refuse to employ or refuse to continue to employ a person, or • (b) discriminate against a person regarding employment or any term or condition of employment • because of the … family status, physical or mental disability, ….of that person … . Employment Standards Act • Section 54: 54 (1) An employer must give an employee who requests leave under this Part the leave to which the employee is entitled. • (2) An employer must not, because of an employee's pregnancy or a leave allowed by this Part, • (a) terminate employment, or • (b) change a condition of employment without the employee's written consent. • (3) As soon as the leave ends, the employer must place the employee • (a) in the position the employee held before taking leave under this Part, or • (b) in a comparable position. • (4) If the employer's operations are suspended or discontinued when the leave ends, the employer must, subject to the seniority provisions in a collective agreement, comply with subsection (3) as soon as operations are resumed.
  • General Benefits Retention • Valued employees • Replacement cost reduction • Benefits costs management • Administration and time costs management • Increased Production • Corporate social responsibility • PR value
  • Prolonged Absence: Issues Employee Concerns: • unexpected workload changes • changes made to role in organization • new coworkers/lost connections • changes to techniques, methodology, professional knowledge • changes in reporting structure • changes to business structure • Impact: • Productivity • Job satisfaction • Coworker morale … The employer’s bottom line
  • Reintegration Best Practices Management Level • dedicated role or roles • focal point for reintegration process • establish clear responsibilities and reporting relationships • Feedback loop for effectiveness • create policy • Communicate, instruct and be guided by policy • Reintegration often fails when front-line is not aware of policies and legal obligations • Create training programs to ensure that bias, lack of knowledge and operational processes are not barriers to reintegration • communication • Know the employee’s network—case managers, disability managers, health care workers, rehab specialists, family roles, etc. • systemic approach • Employee, involved agencies, internal communication
  • Reintegration Best Practices Continued HR Level • Make Contact with Employee • Reach out before RTW date once date is known • Prepare employee for any changes which might have occurred in absence • Involve direct supervisors in preliminary meetings • Determine whether accommodations will be required, on-going monitoring • Determine whether any training or other refreshers are required • Continuing education • Changes in process • Changes in reporting • Monitor Reintegration Process • Assign employee a mentor or buddy
  • Supervisor Level • Acknowledge the Return • Engage the Employee • Remind the Employee of their contributions, work to offset feelings of self-doubt • Work with co-workers to define perception and treatment of returning colleague • Regular contact and monitoring employee, seeking assistance from HR where necessary.
  • Challenges Accommodations, Mental Illness, Redundancies
  • Accommodation ESID – Every Situation Is Different • To the point undue hardship • Not well articulated. • Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000 (SCFP-FTQ) 2008 SCC 43 • ” the employer must accommodate the employee in a way that, while not causing the employer undue hardship, will ensure that the employee can work. The purpose of the duty to accommodate is to ensure that persons who are otherwise fit to work are not unfairly excluded where working conditions can be adjusted without undue hardship.” • “Because of the individualized nature of the duty to accommodate and the variety of circumstances that may arise, rigid rules must be avoided. If a business can, without undue hardship, offer the employee a variable work schedule or lighten his or her duties — or even authorize staff transfers — to ensure that the employee can do his or her work, it must do so to accommodate the employee. ” • Can be financial, operational. • Temporary or permanent • Is the result of a considered, thoughtful process with full participation of the employer, employee and other parties
  • Mental Illness 1 out of 8 employees who have been on an absence due to mental illness will have a second absence. • (Source: Human Solutions Report 2010 “Mental Health Disability”) • Communication and monitoring is key • Watch for changes in productivity, emotional changes • Ensure employee is aware of any support available • Consider work environment and operational processes • Psychological impact • Consider targeted accommodations • Relationship with supervisor, management style, scheduling, duties, deadlines, stamina, concentration limits, emotional needs, deadlines • Need to reduce stigma and discrimination • Failure to seek assistance or accommodation when necessary
  • Terminations TAINTING
  • Questions? Dana Hooker (604) 648-6539
  • The preceding presentation contains examples of the kinds of issues that employers could face. If you are faced with one of these issues, please retain professional assistance as each situation is unique.