On Tuesday, June 10, over 100 businesses from across Ontario joined us and the employment law team from Stringer LLP to discuss pressing employment issues like avoiding occupational health and safety penalties, accommodating employees’ family status, getting ready for the new Employment Standard, using employment contracts to protect your business, and the perils of employee benefits. With seven presentations, Q and As, and a panel discussion, this could easily have been our most informative conference yet.
From Ryan Conlin, we heard that Metron Construction was fined $750,000 for criminal negligence related to a fatal incident on Christmas Eve, 2009, and the owner of Roofing Medics was sentenced to jail time for another fatal incident. These unprecedented penalties—along with the new OHS awareness training in Ontario—should make any company think twice about the safety of their employees and the measures in place to protect them. Of the Metron decision, Conlin said:
This decision serves as a wakeup call for corporations to ensure that they can prove senior management are actively involved with OHS compliance and are aware of their obligations under the Criminal Code and Occupational Health and Safety Act
Besides the due diligence associated with preventing health and safety incidents, Conlin recommends an accident response plan that describes how the organization will deal with the legal issues that result from injuries and deaths.
Jeremy Schwartz told the audience that employers may face increasing requests for family status accommodation—usually child or elder care—given recent court decisions, and how they should deal with them. It’s crucial to get as much information about the employee’s circumstances as possible and appropriate. Employers can and should question an employee’s efforts to manage their family obligations—within reason. Employees must be prepared to accept a reasonable accommodation. Once you grant an accommodation, you must follow up regularly with the employee to determine whether she or he still needs accommodation.
Jessica Young described in detail the obligations employers face under the Accessibility for Ontarians with Disabilities Act Employment Standard. Large businesses have an upcoming deadline of January 1, 2016; small businesses in 2017. That means updating or creating policies on recruitment, accessible formats and communication supports, individualized accommodation plans, return to work, performance management, career development and redeployment. One significant deadline is long past: by January 1, 2012, all organizations in Ontario were supposed to be providing individualized workplace emergency response information to employees with disabilities as necessary.
From Landon Young, we heard that without a restrictive covenant, a former employee may solicit your customers, employees and suppliers, and compete against you freely. It’s true that courts often strike down restrictive covenants—particularly non-competition agreements—but nonetheless, employers can and should use such agreements to protect their interests from former employees. The key to an enforceable agreement is avoiding unnecessary or excessive restrictions on your employees. Employers should remember these three general rules:
- The employer must have a proprietary interest in the employee’s knowledge, skills or services.
- The restriction must be reasonable in scope.
- The restriction must not be contrary to the public interest.
It’s also crucial to remember that if you want to impose a new restrictive covenant on a current employee, you must offer some consideration, like a bonus, raise, promotion, etc.
Allison Taylor argued that employee benefits can go very wrong if organizations don’t pay attention to their policies and agreements. For instance, if an employer fails to mention benefits continuance during an Employment Standards Act termination notice period, that employer could be liable for common-law notice. Employers can also find themselves liable for long-term disability benefits once a terminated employee’s LTD coverage ends. Taylor also reminded us that disability benefits do not replace a severance package and—sometimes we take this for granted—employers are bound to what they promise.
There were countless lessons to take away from the informative and insightful presentations, but one thing stands out, year after year: employers must pay close attention to their policies and procedures, from drafting to implementing to regularly reviewing. Understanding the law is key, and understanding the context of the law helps a great deal.