Last week, we hosted an “Ask the Experts” panel here in Vancouver in order to give our clients and other guests the opportunity to ask specific questions directly to industry experts.This year’s panel experts were Deb Walker - Chemistry Consulting, Ryan Anderson - Mathews Dinsdale Clark LLP, and Judith Mewhort - Montridge Advisory Group. We had a great discussion, and attendees learned tons of valuable information.
Now, for those of you who couldn’t make it, we’ve compiled the questions and answers into this blog post. So if you want to learn more about cannabis in the workplace, issues around termination, an employer’s duty to accommodate, and more, skip to the questions that interest you or read right through!
**This guide does not constitute legal or other professional advice and should not be relied upon as such.
How Dramatic Can Job Responsibilities Change Before the Contract Must Be Changed?
Employment law assumes natural progression. If a junior accountant becomes an intermediate accountant and then a senior accountant, they do not need to sign a new contract. The salary increase and title change is considered part of an accountant’s progression. However, once there is a fundamental change to the job, it’s recommended that you change the contract to reflect the new position. Otherwise, you risk having employees with contracts that no longer reflect their current role, and that will be out of date when it comes to their termination clause and other entitlements.
Another, often overlooked, aspect of contracts is the consideration stage. Most people think a contract has two components: offer and acceptance. In fact a contract has three stages:
The consideration stage is a transfer of value between the parties. Anytime you offer someone a contract, you must give them something more than they already have. This comes up in the workplace because, frequently, an employee begins their new role before the offer letter or employment agreement (contract) is signed. For example, post interview, an employer offers a candidate a position verbally outlining terms and conditions, the candidate accepts the offer, and is given the job (consideration). However, the offer letter or employment contract is not signed until several days after the employee commences work. Therefore, the contract is not in force as the employee has already started the job and no new consideration has been given. One way to get around this issue is to add a clause into the contract along the lines of “in consideration of signing this contract, the employee acknowledges receipt of this Starbucks gift card” or $1 or some other tangible compensation. The courts do not determine the nature of the consideration only that it be given.
What’s a Defined Workplace Mental Health Program?
There is no specific definition in Canada. However, The Mental Health Commission of Canada has created The National Standard for Psychological Health and Safety in the Workplace. The Standard is not a requirement, it is a voluntary set of guidelines designed to help businesses in need of direction. The 75-page booklet can be downloaded from their website. The purpose of the guidelines is to help employers to create a program that suits the needs and culture of their businesses while ensuring a safe work environment where employees feel comfortable seeking assistance for mental health issues.
One of the building blocks when building a mental health program is to include emotional health along with physical and financial components in a wellness program. In addition, adjustments can be made to traditional benefits programs to improve access to mental health support. Starbucks, for example, recently increased the counselling benefit in their extended health plan to $5000 a year. Most small and medium-sized businesses are not able to offer such an amount to all their employees. Thankfully, new online tools allow for employees to seek treatment in more affordable ways with an increasing number of therapists and doctors willing to conduct appointments through phone or video call which has lowered the cost and increased the accessibility of treatment.
In addition, there are now a variety of online mental health tools. The caveat is that not all are created equal, and not all are held to the same high-standard of regulation that physical practices are. For that reason, it’s highly recommended businesses looking to invest in online tools consult their benefits advisor for guidance.
How Do You Address or Avoid Bullying?
Have a solid policy on the subject. Make the expectations of behaviour clear from top to bottom, and provide examples as to what bullying or harassment in the workplace looks like.
All businesses are legally mandated to have a bullying policy in place, though roughly only 50% of them do. Many small businesses think that because they have a small team that gets along, they don’t need such a policy, or that they don’t need to follow proper protocol. The truth is that claims of bullying can arise at anytime, and if someone calls WorkSafe BC and reports an incident, they won’t be happy to hear that you have no policy in place.
One way to reduce incidents of bullying in the workplace is to train managers on de-escalating. It can be as simple as walking them through some techniques and providing them with a cheat-sheet to refer to when needed.
Bullying has two definitions: A colloquial definition and a legal one. We all think we know what bully means, but it has a very specific legal definition, which is: Any behaviour a person ought to know causes humiliation or discomfort unrelated to work. Getting a stern talking to regarding performance may be humiliating and uncomfortable, but it’s not unrelated to work and may be completely appropriate.
That’s why, when an employee comes to you with concerns of workplace bullying, have a conversation with them and try to get a picture of what’s going on and what the best path to resolution is.
Mental Health: How Do You Initiate a Difficult Conversation?
Employers have a legal obligation to inquire. If there is evidence to suggest an employee is acting notably different (low energy, anti-social, missing work) then employers cannot bury their heads in the sand and pretend not to know.
So although people may feel that it’s inappropriate or rude to ask someone if they’re struggling with their mental health, it’s an employer’s legal obligation to do so. It is also good business practice. It’s very important to know if an employee’s underperformance is a result of a disability. If it is, an employer’s duty to accommodate may come into play. When this happens, it is important to seek advice in order to ensure compliance with Employment Standards and Human Rights Legislation.
Be tactful when bringing up the subject. Ask thoughtful questions and allow them to tell you as much (or as little) as they feel comfortable sharing. Also, have a list of resources readily available. Whether that is the contact information for your company’s Employee Assistance Plan, a list of free mental health resources, or just a reminder of the benefits available to them through your company plan.
Are Employers Obligated to Provide Sick Days?
Illness is not a protected leave. Employers are not under any obligation to provide sick days but they are generally a good idea.
Think about the consequences of sick employees in the workplace. They’re often less productive, won’t recover as quickly, and may get other employees sick. It is in everyone’s best interest to provide an avenue of relief for sick employees.
Read our blog for more information on short-term leave.
A point to note, personal leave days are protected in some provinces, and the specifics of those leaves vary between jurisdictions and in some cases can be used for sick leave.
In addition, some employers offer flex time that can be used for sick days. Although, it is the recommendation of the panel that sick days be recorded separately from personal and other leave days in order to track intermittent absenteeism due to illness. Tracking sick days may be important when determining disability benefits or determining causes related to performance issues.
How Do You Manage Employees on Sick Leave and an Employee Performance Plan?
The first thing you should do is determine if the absenteeism is related to disability. If it is, you have a legal obligation to accommodate and should deal with the issues separately.
If it is not related to disability, then they are liable for their time off from work.
Whether or not their absenteeism is due to disability, the best way to handle an employee on a performance plan is to make the requirements of their job clear. This is easy in situations where there are clear quotas to be met--and more difficult if not. Give them clear expectations and a timeline in which they are expected to meet these expectations. Schedule regular check-ins and reviews to ensure they are on track to meet their goals.
Because you must accommodate an employee with disabilities, you should understand how their absenteeism might affect the timeline for improvement. A six-month performance plan may make sense for an employee with regular attendance, but someone often away from work will take longer to get up to speed.
How Do I Protect My Business Against the Loss of a Key Person?
Loss Due To Death, Disability, or Serious Illness
It’s typically assumed that a life insurance policy is all you need. That’s not true. Think about some of the possible questions that will require answers.
What’s your communication plan? What does your receptionist say to clients calling for a key person seriously injured in a car accident the night before? How and when do you tell your employees, partners, and customers? What do you tell the bank? Is there a risk that the bank will call the loan or will financing continue as normal? Will other key people stay?
The sudden unplanned loss of a key person--whether due to death, disability, or serious illness--results in lost revenue and increased expenses.
The best way to protect your business is to draft a really solid business continuation plan.
Loss Due To Leaving Business
Figure out why they’re leaving. It’s rare that people leave strictly for monetary reasons. Is your benefits plan competitive? Does your workplace have a culture that people want to be part of?
Sometimes employers, faced with the stress of losing a key employee, will make an offer to entice them to stay. It’s not recommended; employees tend to talk amongst themselves about these sorts of things, and once they’ve figured out they can get an improved offer by threatening to walk away, they’ll think they can do it again.
In these situations, the best option can be to learn why they'll be leaving and find solutions to prevent it from happening to your next star employee.
Pay close attention to the restriction clauses (non-compete or non-solicitation) in their contract. Courts love to strike them down as anti-competitive and harmful to an individual’s ability to earn a living. If their contract says they can’t work in their profession for 24 months and can’t talk to any related business in Canada, a judge won’t give it a second glance and they’ll be able to work with and talk to who they please. If you are going to include restriction clauses, keep it as narrow as you can to improve your chance of it being upheld.
Must Employers Allow Consumption of Cannabis?
No, impairment at work is still not allowed. The same rules that apply to alcohol also apply to cannabis.
If they have a medical prescription, use your discretion. It’s similar to an employee prescribed painkillers. Have a conversation with their doctor and determine the severity of their illness. Take into consideration the nature of their job and the potential safety risks related to the consumption of cannabis. If they’re employed as a heavy machinery operator, there are legitimate reasons why it would be unsafe to work while under the influence of cannabis, and accommodations may need to be made such as assigning the employee to other duties.
How Can I Be An Employer of Choice?
The formula for being an employer of choice is the consistent application of policies that improve employee working conditions and wellbeing. Ask yourself these questions:
- Am I listening to my employees?
- You can think you’re doing the right thing for your employees, but if you’re not listening to them you might not be giving them what they want. There is often a disconnect between benefits offered by a company and those desired by the staff. Specifically, the Sanofi survey finds year after year that employees would prefer increases to their benefit and retirement plans over additional wages Despite this fact, employers continue to believe that more money offers the best return. Talk to your employees, find out what they’re looking for and support them to the best of your ability.
- Is communication a two-way street?
- Is all your communication coming from the top down or the bottom up? Communication needs to flow both ways, so both employers and employees are aware of each others’ expectations. If the conversation is too unidirectional, people will feel that they aren’t being listened to or they won’t see what they’re asking for materialize.
- Do Employees Feel Comfortable at Work?
- You won’t be an employer of choice if employees are coming in feeling stressed, nervous or dreading the day ahead of them. This can occur if employees feel micromanaged or lack a social outlet at work.
- Am I Letting People Succeed?
- Do you have the same expectations for your junior employees as you do your seniors? Part of letting people succeed is knowing when they need guidance, when they need encouragement, and when they can be left alone to work.
Working hard to create an open culture that’s invested in employee health--both mental and physical-- where employees can make friends, have some flexibility, grow in their careers, and take time off when they need it, is the best way to become an employer of choice.
We hope you found the information valuable and we look forward to hosting another panel discussion next year.
If you have any questions, please leave a comment and we will get back to you. You can also contact us at firstname.lastname@example.org.