Bereavement Leave in Canada

I’m so sorry for your loss. I suspect that, if you’ve clicked on this piece it’s because you have recently lost someone. While the amount of comfort I can offer you here is quite limited, I hope that I can give you the information you need to ensure you get the time to grieve and surround yourself with the supportive people in your life.

Bereavement Leave under the Employment Standards Act

Unfortunately, there is no statutory entitlement to paid bereavement leave under the Employment Standards Act (ESA).

However, if you work for an employer who regularly employs 50 or more people, you are entitled to up to 10 days of unpaid personal emergency leave each calendar year. You may use this personal emergency leave as a bereavement leave for the death of an immediate family member including:

  • your spouse
  • your brother or sister
  • you or your spouse’s parent, step-parent or foster parent
  • you or your spouse’s grandparent or step-grandparent
  • you or your spouse’s child, step-child or foster child
  • you or your spouse’s grandchild or step-grandchild
  • your child’s spouse
  • your dependant relative

Though death is usually unpredictable, as with all leaves of absence, you must notify your employer of your intended absence as soon as you can. You should also note that a half-day taken off will count as a whole day of leave.

Evidence to Justify Bereavement Leave - Bereavement Leave in Canada

Evidence To Justify Leave

“evidence reasonable in the circumstances”

A point that sometimes causes confusion is an employer’s right to ask for evidence to justify an employee’s leave. In this regard, the ESA states:

“an employer may require an employee who takes leave under this section to provide evidence reasonable in the circumstances that the employee is entitled to the leave.”

While there is no guidance in the law for as to what exactly reasonable in the circumstances means, as with most pieces of employment legislation, the aim of the law is to balance the rights and interests of both the employer and the employee. What is reasonable will depend on the situation: length of leave requested, frequency of such absences, cost of absence to employer etc. So, for example, there is probably no need to ask an employee for proof of a relative’s death if they are taking a single day off; your employee’s word in this situation should be adequate evidence.

Bereavement Leave under the Canada Labour Code

Unlike employees governed by the ESA, employees under federal jurisdiction are entitled to paid bereavement leave under the Canada Labour Code.

Under the Code, you are entitled to up to three days paid bereavement leave if you have been employed with a company or organization for three consecutive months. If you haven’t been employed this long, you are still entitled to three days’ leave but this time will be unpaid. You are entitled to leave on any working day within the three-day period immediately following your relative’s death.

Bereavement Leave for Family Members - KCY at LAW

Bereavement Leave for Family Members

Family members for whose death you are entitled to take bereavement leave include:

  • your spouse
  • you or your spouse’s parent or this parent’s spouse
  • you or your spouse’s child
  • your brother or sister
  • your grandparent
  • any relative with whom you permanently reside

The three days of leave only apply to regular working days. For example, if your family member dies on Saturday, you would only be entitled to Monday and Tuesday off. Additionally, these leave provisions don’t apply if you are party to a collective agreement.

Bereavement Leave Legal Experts

If you have questions concerning your bereavement leave entitlements then we can help you. Get in touch with the experienced employment law team at KCY at LAW by calling (905) 639-0999 or contact us online to find out more.

Tips and Gratuities | Legal Definitions & Bill 12

You waiters know the struggle. Well, you know many struggles: the long break-less hours, the fussy diners, the absence of a free Friday night.

But the struggle I’m referring to is tips: their distribution, pooling, breakage etc. You know how quickly that $80 cash at the end of a shift becomes $60. You’re probably familiar with just how unfamiliar you are with the actual regulations regarding that ‘bonus’ money you take home at the end of each shift.

But don’t worry, you’re actually not that far out of the loop because up until last year there were no laws or regulations in Ontario governing tips and gratuities.

New Legislation For Tips & Gratuities – Bill 12

In 2015 Bill 12 (An Act to amend the Employment Standards Act, 2000 with respect to tips and other gratuities) created legal definitions of tips and gratuities and set rules to govern them.

According to the Employment Standards Act (ESA), tips and gratuities are voluntary payments given by customers to employees or to an employer for employees. A service payment imposed by an employer is also considered a tip or gratuity.

Cash in a tip jar, money left on a restaurant table after bills have been paid, and gratuity charges to the bill for a banquet are all examples of tips or gratuities.

Service charges on invoices and agreements should explicitly state what they are for, otherwise they will be considered tips and intended for employees.

While employers have the authority to prohibit tipping in their establishment, many prefer to have their employees’ wages subsidized by tipping customers. However, those who choose to prohibit tipping should make this clear to customers and ensure that their employees do not accept tips.

Laws About Tips in Canada - KCY at LAW

Employers’ Rights To Employees’ Tips

Many bars and restaurants used to deduct a percentage of employee’s tips for ‘breakage’ to cover any unexpected expenses that may arise (i.e. fallen plates, broken glasses). This is no longer permitted.

Generally speaking, employers may not take a portion of their employees’ tips or gratuities. If an employer takes an employee’s tips they will owe the employee a debt.

Employees cannot contract out of this employment standard. They cannot agree to give an employer a portion of their tips for things like ‘breakage’ any longer. The only circumstance under which they can withhold or make deductions from an employee’s tips is if they are “required by law or court order, or administering a tip pool.” For example, if an employee owes child support, their employer may be legally required to deduct money from the employee’s tips to pay this.

A percentage of tips may be taken from an employee if they will go to a tip pool for redistribution among other employees.

Tip Pools

A tip pool is when tips are collected and redistributed (servers may be familiar with tip outs). Employees don’t have to agree to a tip pool to be in one, but tip pool policies should be clear and well-communicated.

Employers should establish a clear policy for how pooled tips or gratuities will be divided, post this policy in the workplace, and keep track of tips.

Laws About Tip Pools Canada - Employment Lawyer - KCY at LAW

Tips must be paid out by cash, cheque or direct deposit. However, there is no rule regarding specifically how or when they must be paid out. It is, however, advisable that employers establish a regular procedure for distributing pooled tips.

Employers may not partake in tip pools to receive a portion of the collective tips unless the work they do is comparable to the work of the employees earning tips. An example of this would be in a small restaurant where the employer waits tables with the same frequency as his or her employees.

If an employee is withholding tips from the tip pool, other employees can only go to their manager or boss to deal with the issue internally. They can’t file a claim against their fellow employees.

Legal Experts on Tips & Gratuities

If you are concerned with how tips and gratuities are being handled at your place of work, or if you have any other questions concerning your employment, contact KCY at LAW. (905) 639-0999 or fill out one of our online consultation forms here.

Bill 127 – Workers Compensation Act

There’s good news for Ontarians experiencing mental health issues as a result of their employment. Laws are changing to make it easier for Ontarians to receive workers’ compensation for mental health claims.

Background to Bill 127 – Workers Compensation Act

Presently, the threshold of mental anguish which an employee must suffer in order to qualify for Workplace Safety and Insurance Board (WSIB) benefits is quite high. Generally, workers have to experience a significant, sudden and unexpected workplace trauma to file a WSIB claim related to mental health.

However, in 2014 the Workplace Safety and Insurance Appeals Tribunal held that the Workplace Safety and Insurance Act’s provisions concerning mental stress were in violation of the right to equality under the Canadian Charter of Rights and Freedoms since it treated mental health injuries differently from physical ones.

New amendments to Ontario’s Workers’ Compensation Act under Bill 127 will expand WSIB benefits eligibility for workers who have experienced workplace psychological stress or trauma. These amendments make workers eligible to the same benefits as they would if they had been physically injured on the job and will come into effect January 1, 2018.

This expanded eligibility comes as both society and the law increasingly recognize that both injured and mentally anguished workers have similar needs, namely: support and time to heal.

Compensation for Mental Stress - Bill 127 - Employment Law

Compensation for Traumatic and Chronic Mental Stress

Section 13 of the Act, will now entitle workers to WSIB insurance plan benefits for “chronic or mental stress arising out of and in the course of the worker’s employment.”

The Bill will benefit workers who have suffered traumatic or chronic work-related stress. That is, workers who experience either one significant work-related trauma (i.e. witnessing a graphic workplace casualty) or a series of smaller stresses (i.e. ongoing workplace harassment) will be able to apply for WSIB benefits.

Who is Entitled To WSIB Under Bill 127?

In order to qualify for WSIB benefits under Bill 127’s amendments, workers must meet three criteria:

  1. Their mental illness must be diagnosed by a registered healthcare professional based on the Diagnostic and Statistical Manual of Mental Disorders (DSM).
  2. They must have experienced substantial and/or ongoing stressors.
  3. Their chronic mental stress must have been caused by work-related stressors.

What Constitutes a Significant Mental Stressor?

Maybe your boss has unfairly criticized your performance. Perhaps a deadline has been moved a few days earlier. You have to do another project with [insert name of that coworker you just can’t stand here]? Are these considered significant enough stressors for you to file a WSIB claim?

Probably not.

The WSIB defines work-related chronic mental stress as “any diagnosable mental disorder that has been predominantly caused by a substantial work-related stressor or series of stressors.” The WSIB clarifies that a substantial stressor must be “excessive in intensity and/or duration compared with the normal pressures and tensions experienced by people working in similar circumstances.”

Daily stresses including changes in output expectations, ongoing interpersonal conflicts, transfers, changes in shift schedules and even demotions are not considered significant enough stressors to justify a WSIB claim.

Scenarios That Qualify for WSIB Benefits

Scenarios That Qualify For WSIB Claims - Employment LawScenarios that would likely qualify for WSIB benefits:

  • A subway driver develops PTSD after witnessing an individual end their life by jumping in front of the train they are conducting
  • An assistant develops an anxiety disorder from ongoing degrading comments from her superior.

Scenarious that wouldn’t likely qualify a worker to WSIB Benefits

  • A waiter’s shift schedule is changed by her boss.
  • A communications assistant is suspended without pay after several warnings about his poor performance and repeatedly arriving late.

Mental Health Related WSIB Claims – Implications for Employers

Employers may expect a rise in the number of employees filing mental health related WSIB claims. Employers should be mindful and proactive in addressing situations and conditions that might cause to an employee to experience significant or ongoing mental stress in the workplace. Employers should provide employees with resources for coping with unexpected workplace stressors, take complaints seriously, and correct problematic situations.

They should recognize that healthy employees – both physically and mentally – make for productive workplaces.

If you have further questions about Bill 127 and its implications for you or your workplace, contact the employment law team KCY at LAW by calling (905) 639-0999 or contact us online to book your consultation.

Bill C-65: Sexual Harassment Protections For Government Workplaces

What in many industries began as a trickle of whispers and rumours has, in the past few weeks, swelled to a flood. New allegations and admissions of workplace sexual harassment seem to be surfacing daily. As prominent individuals in various fields are taken to task for their misconduct, it appears that we might be approaching a watershed moment. New public belief in, and support for, survivors will likely continue to embolden them to speak out against their harassers.

With so much public attention focused on sexual harassment in the workplace, it seems that Bill C-65 could not have come at a more appropriate time.

Sexual Harassment in the Workplace

The Ontario Human Rights Commission (OHCR) defines sexual harassment as “engaging in a course of vexatious comment or conduct that is known or ought to be known to be unwelcome.” The OHRC further describes it as a form of discrimination that can “undermine [a worker’s] sense of personal dignity… prevent them from earning a living, doing their job effectively, or reaching their full potential.”

Sexual Harassment in the Workplace - Employment Law Lawyers

Everyone has the right to a sexual harassment free work environment and Ontario employers have a legal obligation to make efforts to prevent and address sexual harassment. If sexual harassment in the workplace is ongoing and unaddressed despite complaints, the victim of the harassment can potentially quit and claim constructive dismissal.

In the workplace, serious sexual harassment offences can result in immediate termination for cause for the perpetrator. However, minor offences should be addressed with progressive disciplinary measures. Bosses, supervisors and individuals in positions of power will be held to a higher standard of professional conduct in the courts due to the power imbalance between them and their subordinates. The negative impacts of sexual harassment can poison an entire work environment with decreased productivity and poor morale.

Bill C-65 and its Origins

Bill C-65 (or, for those not concerned with brevity:  An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017) was introduced by the Minister of Employment, Workforce Development and Labour, Patty Hajdu and had its first reading on November 7, 2017. The bill proposes legislative changes to amend the Canada Labour Code to better address sexual harassment in federally regulated and government workplaces.

In 2016, the Ministry of Employment began a lengthy consultation with Canadians to assess the state of sexual harassment in federal workplaces and determine the best way to mitigate and remedy this affront to so many workers’ dignity and ability to earn a living.

Sexual Harassment in the Workplace – Bill C-65

Through an online survey and a series of roundtable meetings with stakeholders, participants were able to share their issues and experiences with regards to sexual harassment in the workplace. The resulting report yielded the following key findings:

  • Sexual harassment often takes the form of ongoing inappropriate behavior and is vastly
  • Most people who experience sexual harassment in the workplace are women.
  • There is a strong desire to reduce incidents and improve the way in which they are handled.
  • Participants emphasized the importance of training and education as preventative measures.
  • There is a clear desire for written policies for addressing complaints and protection from retribution for those who file them.

Proposed Changes With Bill C-65

Proposed Changes with Bill C-65 - Sexual Harassment in the WorkplaceAt present, sexual harassment protections for government and federally-regulated employees are covered under the Canada Labour Code. However, sexual harassment is covered by a separate, weaker section of the Code than physical and psychological violence. Furthermore, federal workers can’t access the Canada Labour Code’s complaint processes that lead to investigations, prosecutions and penalties.

If passed, Bill C-65 would provide stronger protections for government workers (i.e. MPs, Senators) and workers in federally-regulated industries (i.e. banking, transport) against sexual harassment. Bill C-65 would require federally-regulated and government workplaces to:

  • establish policies to prevent and protect against sexual harassment in the workplace;
  • establish a process for impartially addressing complaints. (This process can involve mediation or bringing in a qualified outside individual to investigate complaints and make recommendations.); and
  • investigate, record and report all occurrences of harassment.

Consequences For Sexual Harassment Under Bill C-65

However, the Bill does not set consequences for perpetrators should harassment be determined to have occurred. Consequences for sexual harassment will continue to be left up to the employer. However, the proposed legislation would work in tandem with the criminal justice system to which complainants are encouraged to report incidents.

Bill C-65 follows in the wake of Bill 132 which requires employers to have a policy for responding to complaints of sexual harassment in the workplace.

Sexual Harassment & Human Rights Complaints Legal Experts

KCY at LAW specializes human rights complaints such as sex discrimination, sexual harassment in the workplace and other matters of employment law. Call to book your consultation on (905) 639-0999 or contact us online!

Workplace Safety and Insurance Board (WSIB) – WSIB Overview

In a previous blog post, we talked about the different types of Long-Term Disability (LTD) coverage available to Ontario workers. One of the forms of coverage discussed was that which is offered through the Workplace Safety and Insurance Board (WSIB).

Now, we’ll go into further depth about the WSIB: what it is, who it’s for, and what types of insurance benefits it offers. Here’s what you need to know.

What is the WSIB?

The WSIB is an independent trust agency of Ontario’s Ministry of Labour. It is a workers’ compensation insurer that provides compensation to ill or injured Ontario workers and no-fault insurance for Ontario employers. WSIB administers workers compensation benefits in accordance with the Workplace Safety and Insurance Act, 1997.

What Is the WSIB - Workplace Safey and Insurance Board - KCY at LAW

Who is Eligible for WSIB Benefits?

In order to qualify for its benefits, you must be employed by an employer covered by the WSIB. Additionally, you must have sustained your illness or injury in the course of your employment. That is, your illness or injury must have been the direct result of your work. This means that even if you are seriously injured on a weekend and unable to work for many months thereafter, you will not be able to claim WSIB benefits.

In order to receive WSIB benefits, you need to follow the treatment recommendations of a licensed healthcare provider. Additionally, you must allow your employer to receive information about your functional abilities (the kinds of activities you are capable of performing despite your illness or injury) from your treating healthcare professional.

Benefits Of Workplace Safety and Insurance Board (WSIB)

The WSIB offers several benefits for workers who have been injured or fallen ill as a result of their work. The list below is not comprehensive, but it does detail some of the most common and significant benefits offered by the WSIB.

WSIB Benefits LRI, LOE, NEL - Guide to WSIB BenefitsLoss of Earnings (LOE) Benefit
As its name suggests, this benefit is intended to make up for the earnings lost due to a workplace illness or injury. The benefit starts on what would have been your first working day after the day on which the illness or injury occurred.

The LOE benefit is paid until:

  • you are no longer impaired by your original workplace illness or injury;
  • you no longer have a loss of wages; or
  • you are 65 years old.

Benefit payments are based on, and limited by, an annual wage ceiling and calculated based on 175% of the Ontario’s average industrial wage. The first 12 weeks of your LOE benefit is calculated based on your Short-Term Average Earnings (i.e. your regular paycheque). If you have regular work and earnings, your benefit will likely remain the same after 12 weeks.

If your job is temporary or irregular and your pay is as well, after 12 weeks your benefit will be recalculated based on your Long-Term Average Earnings (i.e. your earnings from the last two years).

Non-Economic Loss (NEL)
This benefit is separate from your LOE entitlements and unrelated to your ability to work. It is for the degree of permanent impairment you incur as a result of a workplace illness or injury. This is either paid as a lump sum or on a monthly basis.

Loss of Retirement Income (LRI)
This benefit is available to you if your injury or illness takes place before you are 64 years old and have received LOE benefits for 12 consecutive months. At age 65 you will receive an LRI benefit from WSIB based on a number of factors. This benefit may be received as a lump sum or in monthly installments.

Other WSIB Benefits

In addition to the above benefits for individuals who become ill or injured through the course of their employment, the WSIB also provides assistance with healthcare needs such as prescription drugs, medical devices, healthcare equipment and supplies (i.e. assistive devices, wound-care supplies), and transportation costs associated with your illness or injury.

Finally, WSIB can also provide assistance with your return to work. Depending on the nature and severity of your illness or injury, WSIB may provide you with a case manager, nurse consultant and occupational therapist.

WSIB Legal Advice – Experienced Employment Lawyer

An experienced employment lawyer can help you file your claim and make sure you receive the full WSIB benefit to which you are entitled. If you have been injured in the workplace or fallen ill due to your work environment, talk to an expert at KCY at LAW today by calling us on (906)-639-0999 or contact us online.

Telecommuting – Possible Legal Issues With Telecommuting

For many of us, the work we produce is intangible. It is created on computers and its distribution is entirely digital. It might not even take much human interaction to produce.

Telecommuting – A Perk of the Information Economy

Telecommuting – aka working from home – is, to many workers, one of the greatest perks of the modern information economy.

A confluence of factors influenced the rise of the work-from-home culture. Advances in communications technology, a greater focus on work-life balance (especially with women firmly established in the workforce), growing traffic congestion and skyrocketing costs of homes and office space have all contributed to the growth in popularity of flexible working location arrangements over the past 25 years.

Telecommuting is part of the modern economy’s move towards results-oriented work environments. The thinking goes that where you get your work done doesn’t matter so long as your work’s quality and quantity is consistent with your employer’s expectations. If you are equally or more productive when working from home or a café, then why not work there?

However, telecommuting is not without its challenges.

Constructive Dismissal – Possible Telecommuting Legal Problems

Telecommuting in Canada - Legal Issues With Telecommuting - KCY at LAWEven with the seemingly endless march of new programs and apps designed to help keep teams organized and connected regardless of their disparate geographic locations, there are often still times when it is necessary for employers to have members of their team on site. It is therefore important that employers make their right to recall telecommuting employees to the workplace explicit.

An employee who is used to working from home that is suddenly expected to work from the office might argue that they have been constructively dismissed. Constructive dismissal occurs when an employer unilaterally enacts a fundamental change to the nature of an employee’s work – such as their work location – as set out in their employment contract. If an employee has been constructively dismissed they may be entitled to seek damages for wrongful dismissal.

As an employer, in order to avoid such a situation, you must reserve the right to determine your employee’s workplace location. This right should be set out in employment contracts or in your workplace telecommuting policy.

Discrimination – Possible Telecommuting Legal Problems

If you deal with requests from employees to telecommute on an ad-hoc basis, offering the opportunity to some employees and not others, you may find yourself open to charges of discrimination or favouritism. The best way to prevent these claims is to make sure you have a clearly defined process for how employees are to apply for the option to telecommute and a transparent system and consistent criteria for evaluating requests.

You should decide what positions or productivity levels will qualify employees and make these eligibility requirements clear.

Accommodations – Possible Telecommuting Legal Problems

Employees who request the ability to telecommute as an accommodation should be considered separately as their right to telecommute will be intertwined with human rights laws. Employees may be faced with unexpected circumstances that make it necessary, for a period of time, to telecommute. It is your job to assess the situation and accommodate to the point of undue hardship.

Telecommuting Employment Policy - Employment Lawyer Burlington KCY at LAW

Telecommuting Policy

If you are considering offering telecommuting as an option to your employees, you will need a well-crafted policy to ensure that this arrangement is productive and beneficial all parties. A telecommuting policy should set out expectations regarding work hours per week, insurance and liability, procedures for monitoring productivity and deadlines, on-site duties like meetings and your rights to recall employees to your office site when required.

Experts in Telecommuting Policies for Employers

As jobs change to be done increasingly electronically, so will expectations about working remotely. We recommend you design your telecommuting policy in consultation with an experienced employment lawyer. Call KCY at LAW on (905) 639-0999 or contact us online to book your consultation.

What is Whistleblowing? Guide To Whistleblowing in Canada

Whistleblowing is when an employee reveals corporate wrongdoing to law enforcement.

Whistleblowing was defined in 1972 by Ralph Nader as “an act of a man or a woman who, believing in the public interest overrides the interest of the organization he serves, publicly blows the whistle if the organization is involved in corrupt, illegal, fraudulent or harmful activity.”

What Legal Protections Can Whistleblowers in Canada Expect?

While there are increasing incentives from governments and regulators for whistleblowers to go public about corporate misconduct, protections for whistleblowers are still very limited. Few Canadian laws pertain directly to whistleblowing and therefore whistleblowers are mostly unprotected by statute.

Legal Protections for Whistle Blowers in Canada - KCY at LAW

There is, however, a patchwork of protection provisions for whistleblowers under the Canadian Criminal Code, Public Servants Disclosure Protection Act (PSDPA), the Public Service of Ontario Act, 2006 as well as the Securities Act.

Section 425.1 of the Criminal Code, for example, states that employers may not threaten or take disciplinary action against, demote or terminate an employee in order to deter him or her from reporting information regarding an offence he or she believes has or is being committed by his or her employer to the relevant law enforcement authorities.

In short, an employer cannot threaten an employee with negative repercussions to deter them from contacting law enforcement with information about their employer’s offence. Punishment for employers who make such threats or reprisals can include up to five years imprisonment and/or fines.

Whistleblowing in the Federal Public Sector

Employees in the federal public sector are protected by the PSDPA. This act demands that employers establish a code of conduct with civil protections for whistleblowers. Ontario’s Public Service of Ontario Act, 2006 has similar protections to the federal PSDPA.

Additionally, Ontario’s Securities Act established a new whistleblower program in July of 2016. This consisted of amendments to the Securities Act that give extra protection to individuals who report a potential violation of Ontario securities law.

It is important to note, however, that you are only covered by these protections if you bring your information forward to a law-enforcement body. You are not protected if you leak your information to the media.

Employees Have a Duty of Fidelity

As an employee, you have a legal duty of confidentiality and fidelity to your employer. If you become aware that a superior in your company has committed a serious misdeed, this must usually be reported first to the employer, not the police or a regulatory body. After you have reported the misconduct to the appropriate internal body, your employer doesn’t have to disclose to you what they do with this information. This means that you may never know the results of their inquiry into the reported transgression.

What You Can't Blow the Whistle On - Workplace Issues - KCY at LAW

You’re Not A Whistleblower If…

Lastly, not every misstep or misdeed warrants whistleblowing. You are not a whistle-blower if the issue you are reporting:

  • pertains to personal or personnel issues (i.e. workplace bullying and harassment);
  • is regarding a dispute between the you and the organization (i.e. a dispute regarding vacation time); or
  • involves simple mismanagement (i.e. poor supervision) as opposed to gross mismanagement that poses a risk to the organization or public.

The above issues can usually be addressed internally through Human Resources.

Legal Experts in Canadian Whistleblowing

If you are concerned with the legal implications of corporate or managerial misconduct at your workplace, be sure to speak with an experienced employment lawyer. KCY at LAW can help. Contact us by calling 905-639-0999 or get in touch online for more info!

What is Total Disability? | Six Common Definitions of Total Disability

It’s a common question, and the answer to it comes as a surprise to many. Being totally disabled may sound like you would have to be completely bedridden or in a vegetative state. This, however, is not the case. The legal definition of total disability as it relates to disability benefits and insurance is more reasonable than you might expect.

What Is Total Disability? – According To The Courts…

In 1983, the Supreme Court set out a basic threshold for total disability when they cited Couch on Insurance in their decision for Paul Revere Life Insurance Co. v. Sucharov:

The test of total disability is satisfied when the circumstances are such that a reasonable man would recognize that he should not engage in certain activity even though he literally is not physically unable to do so. In other words, total disability does not mean absolute physical inability to transact any kind of business pertaining to one’s occupation, but rather that there is a total disability if the insured’s injuries are such that common care and prudence require him to desist from his business or occupation in order to effectuate a cure…

Your Insurance Policy Defines Your Total Disability Entitlements

The specific details of what is considered total disability will vary depending on your disability insurance plan. Your plan will define your entitlement to disability benefits based on your ability to perform work either in your job, your field, or the labour force in general.

Insurance Policies and Total Disability Entitlements - KCY at LAW

While the specific parameters of what it means to be totally disabled will vary from one policy to the next, it generally means that you are unable to reasonably perform the regular functions of your usual job. However, depending on your insurance policy’s total disability definition, your ability to perform work other than the job you were doing at the time you became ill or injured may impact your benefit entitlements.

Some policies only require that you be unable to do your specific job in order to be considered totally disabled. Others, by contrast, may require that you be unable to perform other work – even if it is outside your field of interest or expertise – in order to qualify for total disability benefits.

All insurance policies, however, will require that you receive the appropriate care from a qualified physician in order to qualify for total disability benefits.

Six Common Definitions of Total Disability

There are six common definitions of total disability:

  1. Own Occupation
  2. Regular Occupation
  3. Any Occupation
  4. Reasonable Occupation
  5. Limited Regular Occupation
  6. Loss of Income

Common Definitions of Total Disability - Employment Lawyer Burlington - KCY at LAW1. Own Occupation
This definition of total disability requires that, directly because of injury or illness, you are unable to perform the important duties of your occupation. Own occupation looks at your ability to perform your specific job duties. Being able to perform other tasks does not disqualify you from receiving benefits.

This is the most generous definition of total disability. Policies that define total disability in terms of own occupation are also the most expensive. They tend be available only to individuals at the top of their occupational field such as CEOs or specialized surgeons.

2. Regular Occupation
The regular occupation definition of total disability is the most common definition offered in insurance policies. It is similar to own occupation except that it is broader in the types of employment you may have to pursue.

Being unable to perform the specific duties of your occupation alone does not entitle you to total disability insurance benefits. However, you would not be expected to take on employment unsuited to your skill and education level. For example, an injured industrial electrician would not be required to take on a job as a cashier but may be required to find employment as an electrician in another, less physically-demanding sector of the industry.

3. Any Occupation
This definition of total definition is the least liberal but also the least expensive. To qualify for total disability benefits under this definition, you would have to be unable to perform gainful employment in any occupation for which you are reasonably qualified based on your education, training and experience.

4. Reasonable Occupation
This definition is similar, but slightly more liberal, than the any occupation definition of total disability. It includes any occupation for which you may reasonably become qualified through education, training and experience.

5. Limited Regular Occupation
This definition protects you on the basis of the regular occupation definition of total disability for the first 24 months of your injury or illness. Thereafter, your coverage shifts to the any occupation definition of total disability.

6. Loss of Income
Loss of income definitions of disability do not define total disability in terms of your ability to perform a job. Instead, they pay benefits based on your loss of income due to illness or injury. For example, if you are completely unable to work and earn any income, you will receive the full benefit. However, if you are able to work somewhat, the insurance will supplement a percent of your lost income.

Employment Lawyers Can Help You Receive Your Maximum Benefits

If you are unable to work due to illness or injury and wish to file for disability benefits, KCY at LAW have the expertise to help you navigate the complex process of insurance claims. Call us at (905) 639-0999 or contact us online here.

On-Call Time – Understanding On Call Time

I once had a friend who worked as a server at a restaurant. I remember her telling me that she was often required to show up for work at 3 p.m. – in case things got busy – but could only clock in once she started waiting tables. Some nights she wouldn’t be needed to start taking tables until 5:00, meaning she would have to sit around work for two hours without getting paid for this time.

“It sucks,” she’d say.

That it did. It was also illegal.

There are many industries that require their workers to be on-call. Doctors and servers are often used to waiting, ready to drop all plans, and head to work. At the core of all employees’ on-call pay entitlements is the question of what is considered work time.

What Is Work Time - KCY at LAW - Employment Lawyer

What Is Work Time?

According to the Ministry of Labour, work time is:

  • Time spent at work, actually working
  • Time which you are required to be at work, even if you are not technically working

This second point requires some elaboration. In some cases, even if you aren’t performing the duties of your job, you may still be considered working if you are required to be physically present at your place of work.

On Call Time

Time when you are required to be at your place of work but not working does not include:

  • eating times such as breaks and lunch
  • sleeping time, but only if the employer provides the sleeping facilities and the employee is entitled to a minimum of six uninterrupted hours off work; and
  • time directed to private affairs or pursuits.

Based on these criteria, my friend should have been paid for those hours she was required to be at the restaurant but not yet taking tables.

If you are at home, by contrast, time spent on-call is not considered working time and you are therefore not entitled to pay. However, if you are on-call at a location specified by your employer, such as a worksite, you are considered to be working and therefore entitled to pay.

What Employers Need To Consider for On Call Time - KCY at LAW

Impending Changes To Scheduling Rules?

For employers who wish to occasionally or regularly have their employees on-call, it is important to consider the reasonableness and logistics of this requirement. How often will you expect your employees to be on call? If you call, how quickly are they expected to be on site? Does this give reasonable travel time based on where the employee lives?

But things may be changing for employees who constantly find themselves limited in where they can go and what they can do because they are on call and unpaid. Proposed amendments to the Employment Standards Act expected to take effect January 1, 2019 would require that on-call employees who are not called in to work be paid three hours at the regular rate of pay for each 24-hour period that employees are on-call.

On Call Time & Employment Law Experts

If you have questions regarding your employment rights, contact the experienced employment lawyers at KCY at LAW today. Call us on (905) 639-0999 or fill out our online form for more info!

Employee Background Checks Canada – Part 2

We recently gave you an overview of some of the regulations and best practices guiding background checks in Canada. In case you don’t have time to go back, the two main takeaways were:

  1. Do not conduct background checks until you have made a candidate a conditional offer of employment.
  2. All background checks should be reasonable to the needs of the job and done with the informed consent of the candidate.

Different Types of Backgound Checks

This week, we’ll go into detail about the different types of background checks an employer might want to undertake and how to do so reasonably and legally. We’ll look at background checks for a candidate’s:

  • education
  • professional qualifications
  • employment references
  • credit record
  • driver’s record
  • criminal background

Let’s get right into it.

Education Background Checks

Different Types of Employee Background Checks Canada - KCY at LAWEducation Background Checks are meant to confirm that your candidate’s educational qualifications are accurate. There are no specific legal restrictions prohibiting employers from confirming the accuracy of a candidate’s qualifications or transcripts with an educational institution. However, employers should exercise caution; contacting a school could reveal where a student was educated or what year they graduated: information from which age and country of origin might be inferred and the potential for discrimination arise from illegal interview questions.

Professional Qualifications Check

This type of background check involves confirming a candidate’s professional experience. Have they worked where they said they worked and for as long as they have claimed? This check does not involve questioning former employers about your candidate’s performance or personality. For that, you will need to consult your candidate’s employment references.

Employment References Check

Whereas with professional qualifications check you are merely confirming that the candidate has indeed worked at a place for a specified period of time, a reference check allows you to get a former boss’s take on your candidate’s competency, workplace productivity and behaviour.

There aren’t any restrictions about contacting references at any point during the hiring process. However, it is advisable to have a standard set of questions to ask references of all candidates to avoid bias or discrimination.

Background Credit Checks

It is permissible to conduct credit checks and refuse employment based on their results. However, they are really only necessary for positions where the employee would have the opportunity to commit theft or fraud such as bank employees or accountants.

Before conducting a credit check, written notice must be provided to the candidate. Because conducting a credit check requires information about the candidate’s age, it should not be performed until after a conditional offer of employment has been presented.

Driver’s Record

This record check requires the person’s name, address and drivers license number and will bring up information about your candidate’s driving and license details. A driver record check is really only a bona fide occupational requirement for jobs like drivers, truckers and some sales positions.

Criminal Background Checks

While you may think it would be nice to know if your job applicant has a criminal record, criminal background checks aren’t always necessary. In most cases, an employment check will suffice. Criminal background checks are reasonable for employees who will be working in positions of trust or dealing with vulnerable populations such as the young, old or disabled. Since criminal background checks can easily bump up against human rights law and privacy issues, it is best that employers demonstrate that there is a bona fide occupational requirement for conducting one. Employers must receive written consent from their prospective employee before performing any sort of criminal background check.

Types of Criminal Background Checks Canada - KCY at LAW Employment Lawyer

There are three types of criminal record checks: Criminal Record Checks (CRCs), Police Information Checks (PICs), and Vulnerable Sector Checks (VSCs). CRCs bring up criminal and summary convictions. PICs disclose convictions, outstanding and discharged charges. VSCs are the most comprehensive. They perform all the checks of both CRCs and PICs and include if the person has received a pardon for a sexual offence conviction. Some industries, such as child and elder care, are required by statute to ensure their employees have undertaken a VSC,

If you need to perform criminal background checks on prospective employees, it is imperative that you do not single out any particular candidate for said check. Doing so would be discriminatory and therefore illegal.

Additionally, you cannot discriminate against someone who has been convicted of an offence unless you can demonstrate that this offence will directly impact their ability to perform the job.

Bonus! Social Media Background Checks

Checking a candidate’s public social media accounts for information that might help you make a hiring decision (i.e. their credentials and social judgement) is permissible under Canadian law. Checking a candidate’s public social media accounts can be done at any time during the hiring process – within limits. For an in-depth look at social media and hiring you can check out our blog on just that where we talk about social media and hiring practices.

Experts in Employee Background Checks

If you are in the process of hiring the perfect employee to join your team and are considering performing background checks, speak with an experienced employment lawyer to protect yourself from legal action. Contact KCY at LAW at (905) 639-0999 or reach us online here.

Top Law Firms in Burlington

No, this is not a shameless attempt to toot our own horn.  While we could take a couple paragraphs to tell you to look no further for a law firm in Burlington to help you with all of your legal needs, the fact is that the team at KCY at LAW are specialists in employment law. So where should you turn if your legal concerns are outside the realm of contracts, terminations, LTD claims and the Employment Standards Act? Our top recommended firms for all of your non-employment law needs are Cambridge LLP and Martin & Hillyer Lawyers.

Top Law Firms in Burlington – Cambridge LLP

Cambridge LLP’s primary offices are in Burlington and Toronto. The team at Cambridge LLP boasts expertise in cross border litigation and arbitration; estates, trusts and wealth-planning; immigration; business litigation and class-action lawsuits. They are tireless in the pursuit of their clients’ interests and respectful and supportive of their clients’ needs.

Top Law Firms in Burlington - Cambridge LLP - Employment Lawyer Burlington

Martin & Hillyer Lawyers – Law Firms in Burlington

Martin & Hillyer is Burlington’s largest personal injury law firm. If you have been injured in a car accident, slip & fall, or are the victim of medical malpractice or sexual abuse, they are your team.  Additionally, Martin & Hillyer lawyers’ have the expertise to support you through the labyrinth of insurance claims.

Top Law Firms in Burlington - Martin & Hillyer

Employment Lawyers Burlington

Whilst we consider Cambridge LLP and Martin Hillyer some of the top law firms in Burlington if you’re looking for legal counsel for employment matters, you’ve come to the right place. Our best advertisers are our clients so check our testimonials like this one from Cheryl Soderland:

Thank you for your excellent negotiations and very generous time to reach a severance settlement for me. I truly appreciate your extra efforts on my behalf! You and your law team are outstanding professionals. I learned a great deal from you during this process. I’m very pleased with the positive outcome!

And if you like what you read, call us at (905) 639-0999 or reach us online to book your consultation.

Employee Background Checks Canada – Part 1

Excellent. You’ve found your dream hire. After weeks of searching, resume-scanning and interviews, you’ve found the right person to join your team. They had a solid resume and during their interviews they seemed friendly, capable and like an overall good fit for your team. You’re ready to present them with an employment contract. Almost.

Pre Employment Screening & Background Checks

There’s only so much you can glean about a candidate from their resume and cover letter. Interviews are a great opportunity to get to know a candidate a little better, but people tend to put their best foot forward in such situations. I work too hard and I care too much are probably the most common, but least candid, answers to the what’s your biggest flaw question.

Background checks are an employer’s opportunity to fact check a job candidate. This pre employment screening could mean verifying their educational credentials, getting feedback from former bosses or checking to see if they have a criminal record.

As an employer, you will no doubt want to know as many details as possible about your top candidate before hiring them. But you must also give every candidate a fair chance and be reasonable in what information you gather.

Pre Employment Screening and Background Checks Canada - KCY at LAW

Privacy Law in Canada

It is essential that, as an employer, you know and understand the limits of what information you can and cannot collect about your job candidate and how it should be handled upon collection. Background checks are governed by privacy law. The Federal Privacy Act and the Freedom of Information and Protection of Privacy Act regulate what is permissible for background checks in the public sector. For federally regulated industries like banking and telecommunications, background checks are guided by the Personal Information Protection and Electronic Documents Act (PIPEDA). In the private sector, employee information isn’t always subject to privacy law.

Background Checks in Canada – Be Reasonable

Any type of background check should be done in good faith. You may want to gather as much information as possible before hiring a candidate, but you also need to be reasonable about the relevance of the information you gather to the candidate’s ability to perform their job. Do you need to know your cashier’s driving record? Does your science tutor’s credit record matter?

What To Consider When Performing A Background Check

Employee Background Checks - What to Consider - KCY at LAWInformed consent is always the best practice when collecting information about potential employees. Your collection of information should also be reasonable in its scope, use and disclosure. When performing a background check:

  1. don’t collect more information than what you need or is relevant to the job position;
  2. only use the information for the purpose for which it was stated to be used;
  3. properly store and protect the information so that it is only accessible to those for whom it is relevant;
  4. make all personal information you collect about a potential employee available to them to view and verify its veracity; and
  5. delete or destroy the information once it is no longer needed or necessary.

Avoid Discrimination

Background checks open up the possibility for a wide range of discrimination concerns. It is illegal to ask questions about a candidate’s age, sex, place of origin or other human rights-protected grounds during the application process. The Human Rights Commission even prohibits you from refusing employment because of a summary offence (i.e. a minor driving related conviction) or because someone has been convicted of a criminal offence for which they’ve received a pardon.

Background checks can often turn up information about a candidate’s age, citizenship and other human-rights protected grounds and can therefore lead to accusations of discrimination depending on how the check impacts your hiring decisions.

Therefore, it is best to make a conditional offer of employment pending the results of the background check. Additionally, you should make it clear from the outset to all candidates what background checks will be performed and why. This way, all applicants can expect the same treatment and, as long as the relevant background checks come up clean, the job.

Background Checks Conclusions

Now that you have a basic overview of the laws and best practices governing background checks, you’re ready to learn about the specific types of background checks available to employers and how and when they can be reasonably conducted. Stay tuned for next week’s blog where we’ll delve into the details of half a dozen different types of background checks.

Legal Advice For Background Checks

If you’re an employer who’s hiring and looking to conduct background checks on your candidates, contact KCY at LAW for the employment law expertise you need to get yourself the best candidate. Call us on (905) 639-0999 or fill out our online form here for more information.