Tattoos and Piercings In The Workplace

Whereas tattoos, Crayola-coloured hair and prolific facial piercings were once an aesthetic reserved for punks, goths and other subculture groups, these body modifications have become commonplace in mainstream Canadian culture. For example, an estimated 38 per cent of millennials have tattoos and the trend towards an inked-up epidermis isn’t showing signs of slowing.

Despite their growing popularity and visibility, many workplaces still prefer that their employees do not have visible tattoos or piercings beyond their ears. But as an increasingly tattooed and pierced generation comes to dominate the workforce, so too do their sensibilities about acceptable presentation and self-expression.

Which raises the question: do employers have the right to discriminate on the basis of body modifications such as tattoos and piercings when hiring employees?

Appearances and Hiring in Canada

Given Canadian culture’s ever-growing tendency towards the celebration of differences, it may surprise you to learn that, when it comes to hiring, employers have every right not to hire someone because they are tattooed or heavily pierced. So long as the tattoos or piercings are not part of an ethnic, religious or tribal custom, the Human Rights Act and the Charter of Rights and Freedoms do not apply to employers’ hiring choices with regards to body modifications.

Tattoos and Piercings In The Workplace in Canada- KCY at LAW

Tattoos and Piercings in the Workplace

Once an employee is hired, employers do not have the same discretion to impose strict rules regarding visible tattoos and piercings.

Employers do have the right to exercise their own discretion when asking their employees to remove piercings or cover up tattoos. However, significantly restrictive rules concerning piercings and tattoos should have a reasonable business purpose. Therefore, employers should ask themselves if their rules relate to the achievement of their company’s purpose.

Recent decisions from Ontario and Quebec judges have begun to clarify the limits of employers’ discretion when setting workplace policies concerning tattoos and piercings.

In 2013, the Ottawa Hospital changed its dress code to require all staff (including those who did not work directly with patients) to cover all “large” tattoos. The new policy also required that staff remove “excessive body piercings.” The Ottawa Hospital argued that patients were less comfortable with tattooed and heavily pierced healthcare workers and that this could lead to stress and negative health outcomes. While the hospital argued that these measures were to ensure better patient health, the arbitrator found that these new regulations were too restrictive. Moreover, the arbitrator could find no evidence to support the supposed link between hospital workers’ body modifications and patients’ health outcomes and was therefore found to be unenforceable.

The Ottawa Hospital decision was consistent with a 2011 arbitrator decision that found an Ontario Provincial Police policy requiring all 9,000 of its police officers to cover visible tattoos was too broad to be enforceable.

Going further back, in 2009, a Quebec judge determined a daycare’s blanket prohibition on visible tattoos to be unreasonable. The judge granted that, while it was fair for the daycare to prohibit visible tattoos with inappropriate images for children, their insistence that an employee with a butterfly on her arm wear long-sleeves in the summer was overreaching.

Tattoo and Piercing Workplace Policies

Employers should consider if having visibly tattooed and/or pierced employees is likely to negatively impact their business interests.

Naturally, an employer does not want their employees’ appearance to be upsetting or off-putting to their clients or customers. It is fair for employers to require employees to cover tattoos that would reasonably be seen as inappropriate such as tattoos that depict hateful messages, or graphic violence or sexuality. Asking an employee to cover offensive tattoos is fine but sweeping prohibitions on tattoos and piercings may be found to be unreasonable if brought to arbitration.

Workplace tattoo and piercing policies should therefore:

  • Be applied consistently across race and gender
  • Never discriminate based on religious or ethnic beliefs
  • Distinguish between employee roles (i.e. those that do and do not interact with customers or clients)

Workplace Dress Code Policies

KCY at LAW has significant experience helping employers craft fair and enforceable workplace policies that will protect your business interests while respecting your employees’ rights to individual expression. To book your consultation, give us a call on +001 905 639 0999 or contact us online today!

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 to find out more.

Ontario Employees’ rights to time off from work

Breaks and time off from work, what are your rights?

Everybody loves time off work. Whether it’s a quick 15 to enjoy a cup of joe or a nice long weekend away at a cottage, you may notice that you are extra productive at work after you’ve had a proper break.

When it comes to the workplace, rest is important for health, happiness, and ultimately, productivity. A well-rested employee is able to give their best. Research has even shown that down time is key to boosting motivation, creativity, concentration and innovation. It helps you to problem solve and process new information. It even improves your immune system.

In short, a well-rested employee is a productive employee. This applies to workers whose labour is physical, mental or emotional.

In Ontario, employees’ rights to time off from work – such as breaks for lunch – are set out in the Employment Standards Act (ESA).

Meal Breaks in Canada

According to the ESA, all employees (with some exceptions) are entitled to one 30-minute break within the first five hours of work. That is, no employee should work more than five hours in a row without a break. Workers also have the option to split this 30-minute break into two 15-minute breaks with the oral agreement of their employer.

Regardless of how an employee chooses to allot their break time, this time must be uninterrupted. They must be completely free from their work duties during their break time.

This 30-minute break time is unpaid. It does not count towards hours of work, overtime or vacation pay. This means that most employees’ work days are actually 8.5 hours in order to achieve a 40-hour work week: eight hours working plus half an hour break each day.

Employees may have additional breaks (often 15-minute ‘coffee breaks’) written into their employment contract. If extra breaks are outlined in your contract then this allotment is binding. However, if the employee must remain at their place of work for these additional breaks, the breaks must be paid.

Ontario Shift Workers

What about employees doing shift work? These employees must have eight hours off work between shifts whose combined time exceeds 13 hours. For example, if you worked at a restaurant, you may work a split shift from 6:00-10:00 am and then 12:00-4:00 pm because the total number of hours worked is only eight. You could not, on the other hand, work a 6:00-10:00 am and then a 12:00-8:00 pm split shift as you would have worked 14 hours with only two hours break in between.

Daily and Weekly Rest

Breaks from work are about more than eating. Employees are also entitled to 11 consecutive hours off work each day. This is referred to as ‘daily rest’. This means an employee who finishes work at 11:00 pm, cannot return to work any earlier than 10:00 am the next morning.

In addition to this 11-hour break between work days, employees are entitled to 24 consecutive hours off work every week or 48 consecutive hours off work in every consecutive two-week period.

Employees cannot opt out of these rights to daily and weekly rest. However, there is an exception for employees who are on call or called in under exceptional circumstances.

Exceptional Circumstances

According to the ESA exceptional circumstances under which an employee may be asked to forgo the above break entitlements apply “only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations.”

Examples of exceptional circumstances include emergencies that may arise from or an accident, natural disaster or serious equipment failure.

Unforeseen situations that would compromise the provision of essential public services (such as transit or hospitals) and the unexpected interruption of seasonal operation (such as a harvest) or continuous processes (such as an assembly line) would be considered exceptional circumstances. The need to fill a rush order, meet the demands of busy holiday periods or cover an employee who calls in sick are not.

Well-rested employees are good for business

As an employer you may relish the idea of your employees working as long and as often as possible, in reality, they are far more likely to work effectively if they are given adequate breaks from work.

If you are curious about your rights as an employee or obligations as an employer, consult the employment law experts at KCY at LAW today! Call us at 905-639-0999 or book your consultation today!