Although an employer is required by law to create some employee policies there is no requirement to create an employee policy manual.
An employee policy manual makes sense for some organizations but not for others. This blog identifies potential problems with employee policy manuals.
I mostly encounter policy manuals in two scenarios; namely, when a human resource professional working at a medium to large organization wants me to review an existing policy, and; when a small employer who has “borrowed” a policy manual from a friend (or the internet) wants me to review it.
Some employee policy manuals I review look like collective agreements which are documents negotiated by unions to take away management’s rights. If an organization wants to introduce such a document to reduce the chance its workforce will unionize then I understand. If an employer decides to “borrow” the document without understanding the management rights it is giving up then I don’t.
Here are four problem areas in relation to employee policy manuals:
A policy doesn’t comply with existing employment laws
Employment standards, human rights, and health & safety laws change regularly. In my experience, most employers don’t regularly review their policies to ensure compliance with current laws. So when I review an employee policy manual some of the policies are out do not comply with current laws.
Does the vacation policy contemplate that an employee is entitled to 3 weeks vacation after 5 years service?
Does the statutory holiday pay policy specify how statutory holiday pay is calculated? This definition was changed two times in a two year period near the end of the Wynne government and the beginning of the Ford government.
Is there a paid sick leave policy and does it comply with the Employment Standards Act? Again the Wynne government introduced paid sick leave, the Ford government revoked it and then the Ford government introduced temporarily COVID related sick pay that has been temporarily extended to July 30, 2022.
A policy takes away a management right
Some employee policies take away from management rights as opposed to adding to them.
Does the health & safety policy expand the scope of the employer’s obligations? This could be as a result of expanding the definition of “worker” or “workplace”. Or it can happen by expanding the definition of “harassment” by including examples of harassment that may not constitute harassment.
Does the employer have an internal appeal process that must be followed before a decision is finalized? This can relate to employee discipline and in some cases to terminations.
Does the performance management policy require an employer to follow a detailed process as opposed to allowing the employer to performance manage as it sees fit?
The employer is not following or enforcing a policy
When I ask a client contact whether they have a policy on a specific topic the person sometimes has no idea. “Houston, we have a problem” because an employer is expected to follow its own policies.
Does the progressive discipline policy limit the employer’s common law right to terminate an employee for one act of serious misconduct? If so, a judge could conclude the employer should have followed its own progressive discipline policy and not terminated for just cause.
Does the absenteeism policy permit an employee to miss a certain number of days before they can be disciplined or performance managed? If so, a judge could conclude that a certain amount of absenteeism is contemplated and permitted.
A policy should not be included in an employee policy manual
A policy makes sense for some scenarios but it does not mean the policy needs to be included in an employee handbook.
Why do various hiring policies need to be included in an employee policy manual? After all, the employee is already hired.
Why does there need to be a detailed performance management policy in the employee policy manual? Instead why not provide it to managers to administer. If your organization is committed to an annual performance review then other than making that commitment why is anything else needed in an employee policy?
Why does there need to be a detailed vacation scheduling policy in the employee policy manual? Instead why not provide the policy to managers to administer. If your organization wants employees to request vacation a minimum amount in advance then other than requiring an employee to provide this notice then why is anything else needed in an employee policy?
When considering whether to create an employee policy manual, or when reviewing your existing employee policy manual keep these problems in mind and if you have any questions call your employment lawyer.
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