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Posts tagged: AODA

Top 10 Employment Law Developments in 2017

By , December 4, 2017 1:43 pm

In 2017, the provincial legislature and Ontario judges continued to change Ontario’s employment laws. These changes resulted in higher payroll costs and a more regulated workplace. This blog briefly identifies 10 employment law developments from the past year.

1.Changes to the Employment Standards Act. Many changes were made to this law in November. Most of these changes take effect on January 1, 2018 which doesn’t give employers much time to change existing practices and policies. We offer a fixed fee service for employers who need help complying with these changes.

2.Ministry of Labour inspectors are visiting more Ontario workplaces. In the past, most inspections were the result of an employee complaint. Now the MOL is getting more proactive. For the last several years, the MOL has initiated strategic inspection blitzes. In 2017 the MOL announced it is hiring 175 additional ESA enforcement officers. This means your organization is much more likely to be inspected for compliance with Ontario’s employment laws including the many changes to the ESA that take effect January 1, 2018.

3. Accommodating employees with mental disabilities may be the fastest growing area of human rights law.  We recently devoted ⅓ of our employment law conference to this topic. It seems as if more and more employees are debilitated by depression and anxiety, and often an employee’s interaction with their supervisor triggers a mental disability. It is a complex area fraught with legal uncertainty. The duty to inquire about a person’s health when there are objective signs that the person may have a mental disability is one such issue.

4. Damages for employee terminations are going up. In the past, the sole issue in most wrongful dismissal cases was how much pay the employer owes the employee in lieu of the notice of termination that the employee should have received.  Now employees routinely seek several kinds of additional damages. A 2017 decision considered the termination of a 44-year-old female supervisor with 9 years’ service shortly after filing a sexual harassment complaint. The trial judge awarded her 10 months pay in lieu of reasonable notice, $ 60 000 in moral damages because of the way she was terminated, $ 25 000 for the way the employer handled her human rights complaint,  interest, and about $ 425 000 in legal fees. The Court of Appeal increased the damage award. In another case, a trial judge awarded a terminated employee, among other damages,  $ 100 000 for the intentional infliction of mental stress and the tort of harassment which I believe was recognized as a legal cause of action in the employment context for the first time.  

5. Termination clauses in employment contracts continue to be successfully attacked. We have written several blogs on this issue. Some judges are refusing to enforce termination clauses whereas others do, so there is considerable legal uncertainty in this area. I’m hoping the Supreme Court of Canada will provide some guidance in this area. In the meantime, we suggest that employment contracts be reviewed periodically – especially termination clauses.We provide this service for a fixed fee

6. Changes to AODA. The Employment Standards under the Accessibility for Ontarians with Disabilities Act came into effect for all employers in 2017. Did you know this law imposes 9 new obligations  on all employees, and 2 additional obligations on organizations with more than 50 employees? Also, did you know that organizations with more than 20 employees must file a report with the government by December 31, 2017? We offer a fixed fee service  for employers who need help complying with these obligations.

7. Sexual harassment. The Harvey Weinstein story shone a light on this issue – again. Changes to Ontario’s health and safety law in late 2016 amended the definition of “workplace harassment” to include sexual harassment. Employees now have the right to have complaints investigated by a trained person, and be told the outcome of the investigation and whether the alleged harasser was disciplined. We offer a fixed fee service for employers who have not complied with the new obligations imposed on employers including the obligation to implement a written workplace harassment investigation procedure.

8. Pregnancy and parental leave extended to 18 months. The federal government and provincial government have amended laws to make this happen. As written about in our blog, now employees can take 12 months EI benefits over an 18 month period. 

9. Drug testing. The federal government plans to regulate the sale of marijuana and it won’t be limited to people who need it for medical purposes. Recently some judges have found that drug testing is permitted in certain circumstances. I predict that more and more employers will be implementing drug and alcohol policies in 2018.

10. Employee bonuses. Is an employee entitled to the bonus they would have earned if they had received notice of termination? This often turns on how to  interpret the term “actively employed”. The Alberta Court of Appeal and Ontario Court of Appeal seem to be taking a different approach to this issue. Accordingly, it looks like the Supreme Court of Canada will have to decide this issue. In the meantime, we suggest that bonus clauses in employment contracts be updated.

For 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm. 

Is Your Organization Compliant with AODA? It Should Be. Here’s Why

By , November 27, 2017 5:29 pm

Did you know that employers with 20 or more employees are required to file a report with the Ontario government confirming they have complied with their obligations under the Accessibility with Ontarians with Disabilities Act (“AODA”) by December 31, 2017?

Employment Standard

This regulation under AODA applies to all employers. It  requires an employer to comply with at least nine (9) new obligations such as notifying job applicants that, where needed, accommodations for disabilities will be provided, on request.

Employers with 50 or more employees have two additional obligations including the duty to prepare a written individual accommodation plan for every disabled employee who has requested an accommodation for a disability.

Customer Service

This regulation under AODA requires all employers to, among other things, provide customer service training to employees.

An employer with 50 or more employees is required to prepare written customer service accessibility policies.

Multi Year Accessibility Plan

An employer with 50 or more employees is required to  establish, implement, maintain and document a multi-year accessibility plan. This plan outlines the organization’s strategy to prevent and remove barriers and meet its requirements under the Integrated Accessibility Standards regulation.

Ignorance of the Law is No Excuse

Many employers are not aware of their obligations under AODA, and have therefore not complied with them, and do not know about the obligation to inform the Ontario government that they have complied with their obligations under AODA by December 31, 2017.

Fixed Fee AODA Compliance Service

The MacLeod Law Firm has developed a fixed fee service that will get an employer into compliance with AODA before the December 31, 2017 reporting deadline. A description of this service is found here

If you have questions about this service, please contact Nadia Halum at [email protected], or Doug MacLeod at 416 317-9894.

For 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Why Employers Are Finding It Increasingly Difficult to Comply with Ontario’s Employment Laws

By , November 8, 2016 9:20 am

Lawyers as Forest Rangers

You can compare employment lawyers to forest rangers.

We prevent legal fires when we, for example, draft employment contracts & legally required policies, and when we provide prophylactic advice such as pre-termination advice.

We put out legal fires when we, for example, defend wrongful dismissal actions, human rights complaints, and claims for overtime pay under the Employment Standards Act.

Lawyers as Compliance Officers

In recent years with the proliferation of new workplace laws, employment lawyers have also taken on the role of compliance officers for some clients.

Unless a person is responsible for keeping an organization up to date on Ontario’s employment laws, an employer is simply not aware of new employment laws.

In the past, many employment laws were of the “Thou shall not…” variety.

Increasingly, however, the laws are of the “Thou shall do (something)…” variety which makes compliance impossible if the employer is unaware of a new law. As most people are aware, ignorance of the law is not a defence to a violation of a law.

New Employer Obligations

As readers of this blog are aware, the Ontario government regularly introduces new laws and amends existing employment laws. Here are a small number of recent new or changed laws:

  1. Mandatory Training

New employees must generally receive customer service training under the Accessibility for Ontarians with Disabilities Act (“AODA”), and mandatory health and safety training under the Occupational Health & Safety Act (“OHSA”).

  1. Mandatory Investigations

Employers are now required to investigate workplace harassment complaints (i.e. my co-worker is “bullying” me) and the person who investigates the complaint must be appropriately trained. If not, the Ministry of Labour can order the employer to retain an external investigator at the employer’s expense.

Although an investigation into a human rights complaint is not explicitly required under the Ontario Human Rights Code the failure to do so can result in an order to pay an employee damages for failure to investigate even if an adjudicator concludes no discrimination took place.

  1. Mandatory Requirements In Relation with Disabled Employees

As of January 1, 2016 eleven (11) new obligations were imposed on employers with 50 or more employees as a result of the Employment Regulation under AODA. These obligations were all of the “Though shall do (something)…” variety. One such obligation is to prepare an individual accommodation plan for any disabled employee who requests accommodation. This plan must address at least 8 prescribed issues. These new obligations are imposed on employers with 1 to 49 employees on January 1, 2017.

I will continue to bring new employment law developments to your attention through this blog. But sometimes this is not enough.

The MacLeod Law Firm’s Compliance Services

To help employers comply with new employment laws and to manage compliance risk, the MacLeod Law Firm is offering a number of fixed fee services.

One service is our HR/Employment Law Compliance service. After determining a client’s compliance needs, we prepare a schedule of monthly services. (i.e. Month 1 – Occupational Health & Safety Act compliance; Month 2 – Employment Standards Act compliance; Month 3 – Mandatory postings and training compliance etc.)

Another service is our AODA Compliance Report. We review each client’s current practices and provide a written report setting out exactly what the organization needs to do to comply with AODA’s new Employment Regulation.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

AODA Update: New Regulation Taking Effect July 1, 2016

By , June 27, 2016 11:56 pm

The Accessibility for Ontarians with Disabilities Act (“AODA”) is constantly changing. So when there has been yet another change to AODA it takes all of my energy not to cover my ears and yell “LAH, LAH, LAH” at the top of my lungs.

Employment Standards Regulation: January 1, 2017

The most important amendment to AODA that applies to employers with 1 to 49 employees takes effect on January 1, 2017. For a description of our compliance service in connection with the Employment Standards Regulation, click here.

Ontario Regulation 165/16: July 1, 2016

Before the Employment Standards takes effect, however, another regulation – O. Reg. 165/16 – will take effect on or about July 1, 2016. It will consolidate all of the accessibility standards in the Integrated Accessibility Standards Regulation. Thereafter both small (1 to 49 employees) and large (Over 50 employees) organizations will be required to do the following:

Changes to AODA Requirements

  1. Training– currently, organizations are only required to provide customer service training to employees and volunteers who deal with third parties, and those who participate in developing the organization’s policies. However, the new regulation will require organizations to, as soon as practicable, train: (a) all employees and volunteers; (b) every person who participates in developing the organization’s policies; and (c) every other person who provides goods, services or facilities on behalf of the organization.
  2. Documenting policies, practices and procedures – currently, organizations with 20 or more employees must “document” their customer service policies, practices and procedures, and make a copy of that document available on request. However, when this regulation takes effect, this requirement will only apply to organizations with 50 or more employees. In other words, organizations with 20 to 49 employees are no longer required to document their customer service policies, practices and procedures.

Besides documenting their customer service policies, practices and procedures, large organizations must also (a) notify persons to whom it provides goods, services or facilities that the document which describes the organization’s policies, practices and procedures is available upon request; and (b) prepare a document that describes the organization’s training policy, summarizes the content of the training and specifies when the training is to be provided. Both documents must be provided to any person upon request.

All organizations with 20 or more employees must confirm their compliance with the above requirements by submitting an accessibility compliance report by no later than December 31, 2017.

Lesson to Be Learned

We recommend that you review and update all of your organization’s AODA policies, practices and procedures to ensure you are in compliance with the upcoming changes.

MacLeod Law Firm Update

I am very pleased to announce that I have hired Nadia Halum as our newest associate lawyer. She articled for us this past year. Please join me in welcoming Nadia to our firm. She can be reached at (647) 985-9894 or [email protected]

 

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

 

 

Accommodating Disabled Employees: Can an Employee Demand to Work at a Different Workplace?

By , May 3, 2016 9:15 am

Accommodating Disabled Employees

I have written a number of blogs on the challenges associated with accommodating employees with mental disabilities. I have also blogged on the new obligations that were imposed on employers with 50 or more employees earlier this year with respect to disabled employees including the requirement to prepare a written accommodation plan.

Can a Disabled Employee Demand to Be Moved Away from a Co-Worker?

I have been involved in a number of cases where an employee has claimed that he could not work in the same work space as a co-worker for mental health reasons and asked to be moved to a different physical location.

The Case: The Emond v. Treasury Board

In a recent case, an adjudicator concluded that an employer failed to accommodate an employee on long-term disability who requested that she be permitted to work in a different work location than a co-worker for mental health reasons. As a result the adjudicator ordered the employer to move the employee to another of its nearby workplaces, and to compensate the employee for the difference between the amount she received while on long-term disability and her salary due to the employer’s failure to accommodate.

The Facts: The Devil Is In the Details

Did a disability exist? The adjudicator concluded that the employee suffered from emotional stress caused by a co-worker. Although the adjudicator recognized that “stress cannot automatically be associated with a disability or an incapacity,” she concluded that the employee’s medical condition did constitute a disability or an incapacity, thereby triggering the employer’s duty to accommodate.

Was there medical evidence supporting the accommodation request? In the opinions of her general physician and her psychologist, the employee would be capable of returning to work if she was permitted to work in a different workplace than the co-worker. Although the employer suggested that the employee should attempt to return to work on a different floor of the same workplace, both of the treating physicians disagreed. The employer refused to permit the employee to work in a different workplace or from her home. The adjudicator commented that the employer did not call any rebuttal medical evidence nor discredit the employee’s treating physicians.

Lessons to be Learned

  1. Do not refuse an employee request to move work locations for mental health reasons before carefully considering the reason for the request.
  1. Request medical reports in support of the employee’s request. If you are not satisfied with the documentation provided by the employee, send the employee to a physician or disability management consultant of your choosing if you have the right to do so.
  2. Prepare an individual accommodation plan under the Accessibility for Ontarians with Disabilities Act.
  3. Update your employment contract if your organization does not have the right to send a disabled employee to a doctor of the employer’s choosing.
  1. Maintain regular contact with the disabled employee and update the individual accommodation plan as needed.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

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