Employment Standards Legislation Overview PDF

1 Chapter Overview Key features of employment standards legislation Scope of legislation Basic duties of employers Minimum employment standards Administration and enforcement Copyright © 2021 Emond Montgomery Publications. All rights reserved. ...

1 Chapter Overview Key features of employment standards legislation Scope of legislation Basic duties of employers Minimum employment standards Administration and enforcement Copyright © 2021 Emond Montgomery Publications. All rights reserved.  2 Key Features Sets out minimum terms and conditions of work Establishes minimum requirements for termination notice, pay Displaces common law principle that parties are free to negotiate terms and conditions of employment Close to 90% of employees in Alberta fall under the jurisdiction of the legislation, but coverage is not universal Copyright © 2021 Emond Montgomery Publications. All rights reserved.  3 Key Features (cont’d) Cannot be undercut by an employment or collective agreement Unionized employees are covered, but most significant benefits are covered by the collective agreement If employer promises a greater right or benefit promised by employer will be enforced so long as it relates to a specific benefit under the Act Enforcement is complaint-based Bind employers regardless of size Copyright © 2021 Emond Montgomery Publications. All rights reserved.  4 Record Keeping Employers required to maintain accurate written records about employees Must keep most records for three years after date the record was made All records must be readily available for inspection by an Employment Standards Officer May protect employer from unjustified claims Copyright © 2021 Emond Montgomery Publications. All rights reserved.  5 Wages Employer must establish regular pay period and pay day Partial payment is prohibited Cash, cheque, or direct deposit acceptable Five types of deductions allowed: 1. Statutory deductions (e.g. income tax) 2. Court-ordered deductions Copyright © 2021 Emond Montgomery Publications. All rights reserved.  6 Wages (cont’d) 3. Authorized by a collective agreement 4. With specific written authorization 5. Recovery of wage advance or overpayment In Alberta, when employment ends If notice given, payment must be made within 3 days If no notice from employee, payment must be within 10 days Copyright © 2021 Emond Montgomery Publications. All rights reserved.  7 Minimum Employment Standards Minimum wage Hours of work and rest Overtime Vacation, General holidays Statutory leaves of absence Rights during statutory leaves Termination rules Copyright © 2021 Emond Montgomery Publications. All rights reserved.  8 Minimum Wages Employer must pay at least the minimum wage prescribed by the regulations General and special conditions apply for specific types of workers In 2015 minimum wage in Alberta raised to $15, the highest in Canada, as of October 2020. AB has “three-hour rule” Copyright © 2021 Emond Montgomery Publications. All rights reserved.  9 Maximum Hours of Work “Maximum hours of work” and overtime separate issues Employees may be required to work up to 12 hours/day or longer in special circumstances: Emergencies Urgent work Unforeseeable/unpreventable circumstances Permit, issued by the director of employment standards Copyright © 2021 Emond Montgomery Publications. All rights reserved.  10 Hours of Work and Rest In Alberta, employees must have at least: eight consecutive hours off work between shifts, and one day for each week or multiple, to a maximum of 24 days and then four consecutive days of rest. Can be modified to accommodate the needs of employers that operate continuous work cycles Consideration for refusals to work on a specified day for religious reasons Copyright © 2021 Emond Montgomery Publications. All rights reserved.  11 Eating Periods and Coffee Breaks Eating periods Coffee breaks In Alberta, ½ hour every five Employer under no statutory hours, with or without pay obligation to provide coffee If unpaid, employee is not breaks required to stay on premises If given, employer must pay Employer may require the for that time and the employee to work longer employee is required to without a break in some remain at the workplace circumstances Copyright © 2021 Emond Montgomery Publications. All rights reserved.  12 Overtime Pay Separate from hours of work In Alberta, basic 8/44 rule At a minimum, employers must pay 1.5x the regular rate for all hours worked beyond 8 hours on each workday or 44 hours in the workweek Some jobs exempt from overtime pay List of occupations provided by Employment Standards Registration Copyright © 2021 Emond Montgomery Publications. All rights reserved.  13 Banking of Overtime An employer and employee may agree to receive paid time off work instead of overtime pay Employee may receive 1 paid hour off work (“straight time”) for each hour of overtime worked instead of pay If time off not provided or taken within three months, then the employee must be paid 1.5x overtime pay (some exceptions apply) Copyright © 2021 Emond Montgomery Publications. All right reserved.  14 Annual Vacation Employee must have accrued at least 12 months continuous service with employer Entitlement starts at 2 weeks and increases to 3 weeks after 5 years of qualifying seniority May be reduced in proportion to the number of days that the employee is absent from work, including maternity, parental, and other leaves Copyright © 2021 Emond Montgomery Publications. All rights reserved.  15 Annual Vacation (cont’d) In some cases (e.g. seasonal plant shutdown) employer is entitled to determine when vacation must be taken To reduce the cost of administering annual vacation, employers can designate a common anniversary date. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  16 Vacation Pay At least equal to 4% of wages earned during the 12 month period for which the vacation pay is given In Alberta, to determine vacation pay, “wages” do not include overtime earnings (unless an overtime agreement is in effect), general holiday pay, pay in lieu of termination notice, and unearned bonuses Copyright © 2021 Emond Montgomery Publications. All rights reserved.  17 General Holidays In Alberta, there are 9 general holidays Plus any other day designated by regulation Parties may substitute alternate days off if majority of employees and the employer agree Most employees eligible Employees do not lose their right to a general holiday if it falls during their vacation Copyright © 2021 Emond Montgomery Publications. All rights reserved.  18 General Holidays (cont’d) General holiday pay must be equal to at least the amount of an average day’s pay (s. 28) If an employer asks an employee to work on a general holiday, the employee is entitled to: 1.5x employee’s regular wage (up to 12 hours), plus the employee’s average day’s pay; or employee’s regular hourly wage rate for each hour worked, plus one day’s holiday Copyright © 2021 Emond Montgomery Publications. All rights reserved.  19 Maternity Leave In Alberta, 16 weeks Paid by Federal government through EI Leave can commence up to 13 weeks before anticipated delivery date Must include at least 6 weeks immediately following the birth Unless the mother can obtain a medical certificate Copyright © 2021 Emond Montgomery Publications. All rights reserved.  20 Maternity Leave (cont’d) Minimum 90 days continuous employment with the employer to qualify Employee must normally give 6 weeks advance notice Must be taken consecutively Can be extended if the infant’s medical condition requires continued care from the mother Copyright © 2021 Emond Montgomery Publications. All rights reserved.  21 Parental Leave In Alberta: up to additional 37 consecutive weeks within 53 weeks after birth or adoption placement Applies to both parents, but not at the same time Minimum 90 days continuous employment Not paid by employer under Employment Standards Act but employees may be able to claim under the Employment Insurance Act Copyright © 2021 Emond Montgomery Publications. All rights reserved.  22 Maternity and Parental Leave Employer prohibited from terminating or laying off employee during leave Unless business is discontinued Employee must provide written notice at least 4 weeks before resume date Copyright © 2021 Emond Montgomery Publications. All rights reserved.  23 Reservist Leave For members of reserve force of the Canadian Forces Requires at least 26 consecutive weeks of employment with employer to qualify Provides unpaid, job-protected leave: when deployed; and up to 20 days per year for annual training. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  24 Reservist Leave (cont’d) Employees must provide 4 weeks notice Employers cannot terminate employee on leave Employer must reinstate employee to position occupied or comparable Copyright © 2021 Emond Montgomery Publications. All rights reserved.  25 Compassionate Care Leave For primary caregiver of ill family member, up to 27 weeks’ unpaid, job-protected Need certificate from a qualified health practitioner Requires 90+ days employment with employer to qualify Copyright © 2021 Emond Montgomery Publications. All rights reserved.  26 Compassionate Care Leave (cont’d) Dovetails with EI’s compassionate care leave Employees must provide 2 weeks notice Employers cannot terminate employee on leave Employer must reinstate employee to position occupied or comparable Copyright © 2021 Emond Montgomery Publications. All rights reserved.  27 Other Leaves Disappearance of child leave Critical illness of a child leave Long-Term Illness and Injury leave Domestic Violence Leave Personal and Family Responsibility Leave Bereavement Leave Copyright © 2021 Emond Montgomery Publications. All rights reserved.  28 Employee Rights during Statutory Leaves Right to reinstatement Right to salary plus increases Right to retain benefits Right to vacation entitlement Right to be free from reprisals Right to accrue seniority Copyright © 2021 Emond Montgomery Publications. All rights reserved.  29 Administration and Enforcement Process begins with complaint filed to ES All are encouraged to resolve issues between parties ES Officers may mediate Where the ES officer determines complaint warrants further action, officer can escalate to director Copyright © 2021 Emond Montgomery Publications. All rights reserved.  30 Administration and Enforcement (cont’d) Director has broad powers to investigate and impose a remedy and/or penalty If director finds a contravention, will issue orders to employer If no contravention found, employee can appeal Penalties: Up to $100,000 for a corporation Up to $50,000 for an individual Copyright © 2021 Emond Montgomery Publications. All rights reserved.  31 Understanding Discrimination & Human Rights Complaints Employers are required to maintain workplaces free from discrimination and harassment Exists for the entire life of the employment relationship Hiring—Training—Transfers—Promotions—Compensation Performance evaluations—Discipline—Termination—Layoffs Alberta Human Rights Act BC Human Rights Code Copyright © 2020 Emond Montgomery Publications. All rights reserved.  32 What is Discrimination? Discrimination need not be intentional It is the result that counts, not the intent Legal test 1. The complainant has a characteristic protected by the legislation 2. The complainant experienced an adverse impact with respect to their employment 3. The protected characteristic was a factor in the adverse impact Systemic discrimination A web of policies and practices that are neutral on their face, but have discriminatory effects. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  33 Overview of the Legislation: Areas Covered Publications and notices Goods or property, services, accommodation (housing and facilities) Tenancies Employment practices including equal pay and advertisements 65% of complaints in BC and 85% of complaints in AB are about employment Membership in trade unions and occupational associations Copyright © 2020 Emond Montgomery Publications. All rights reserved.  34 Overview of the Legislation: Protected Grounds Alberta BC 1. Race 1. Race 2. Religious beliefs 2. Religion 3. Colour 3. Colour 4. Gender 4. Sex 5. Sexual orientation 5. Sexual orientation 6. Physical disability 6. Physical disability 7. Mental disability 7. Mental disability 8. Age 8. Age 9. Ancestry 9. Ancestry 10. Place of origin 10. Place of origin 11. Marital status 11. Marital status 12. Family status 12. Family status 13. Gender identity 13. Political belief 14. Gender expression 14. Criminal or summary conviction 15. Source of income unrelated to employment Copyright © 2020 Emond Montgomery Publications. All rights reserved.  35 Discrimination in Hiring Morrison v AdvoCare A male registered care aide was refused employment on two occasions Was the refusal to hire discrimination based on sex? Test for prima facie discrimination in hiring: 1. The complainant was qualified for the job 2. The complainant was not hired, and either: a) someone no better qualified but lacking the distinguishing protected characteristic obtained the position, or b) the employer continued the seek applicants with the complainant’s qualifications. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  36 Overview of the Legislation: Equal Pay for Equal Work What is required in Alberta and BC? Employees of any sex must be paid the same rate for work that is the same or substantially similar May not reduce the pay of the higher-paid employee to ensure equal pay for equal work What is not required in Alberta and BC? Pay equity—requires employers to compare totally different jobs to determine whether or not they are equal in value Currently required only in Ontario and Quebec Employment Equity—legislation that requires employers to address underrepresentation of certain groups of people (usually visible minorities) through planned hiring Currently required in the federal sector Copyright © 2020 Emond Montgomery Publications. All rights reserved.  37 Overview of the Legislation: Where Discrimination is Allowed When the “refusal, limitation, specification or preference” is based on a bona fide occupational requirement (BFOR) When an alleged contravention of the Act is “reasonable and justifiable in the circumstances” AB—special exemptions on the grounds of age and marital status for pension plans and insurance. BC—special exemptions for organizational membership where the organization is not for profit and has the aim of promoting the interests and welfare of an identifiable group Copyright © 2020 Emond Montgomery Publications. All rights reserved.  38 Overview of the Legislation: Making a Complaint 1. File within the time limit (AB: 1 year since incident; BC: 6 months since incident) 2. Application is reviewed for completeness, jurisdiction, and initial merit 3. Respondents sent a copy of the complaint and given a time limit to respond to the allegations If no response, complaint proceeds to review and orders may be made against the respondent 4. Settlement attempts (investigations may occur in AB) 5. Case is heard by a human rights tribunal Copyright © 2020 Emond Montgomery Publications. All rights reserved.  39 Overview of the Legislation: Remedies Cease the discriminatory policy or behaviour Refrain from engaging in the same acts in the future Award the complainant opportunities or privileges that were lost as a result of the discrimination Compensate the complainant for lost wages, income, or expenses Take any other action the tribunal considers proper to put the complainant in the position he or she would have been in but for the discrimination Copyright © 2020 Emond Montgomery Publications. All rights reserved.  40 Issues in Recruitment, Selection, & Hiring: Essential Requirements of the Job An employer who is recruiting should ensure a job description is: Current Accurately reflects the employer’s needs and expectations Identifies the essential requirements of the job If an essential requirement of the job negatively affects a person on a prohibited ground, the employer must accommodate to the point of “undue hardship” (for the employer) Copyright © 2020 Emond Montgomery Publications. All rights reserved.  41 Issues in Recruitment, Selection, & Hiring: Essential Requirements of the Job To be regarded as a BFOR (a standard that is necessary in spite of being discriminatory), the workplace policy, practice, or requirement must: 1. be adopted for a purpose rationally connected to the job, 2. be adopted in an honest belief that it was necessary to satisfy a legitimate business purpose, and 3. be reasonably necessary to accomplish that purpose—and it must be impossible to accommodate the individual without creating undue hardship. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  42 Issues in Recruitment, Selection, & Hiring: Use of Employment Agencies BC: Section 13(2) expressly prohibits discrimination by employment agencies Specifically: refusing to refer a candidate, based on a prohibited ground Alberta: Although employment agencies are not specifically defined in the Act, s 8(1) prohibits “any person” from advertising or circulating application forms that are discriminatory Agencies cannot accept requests, or act on requests, to hire people based on preferences related to prohibited grounds of discrimination Copyright © 2020 Emond Montgomery Publications. All rights reserved.  43 Issues in Recruitment, Selection, & Hiring: Job Advertisements Where and how a job is advertised is important Section 8(1) of the Alberta Act and Section 11 of the BC Code prohibit job ads that directly or indirectly discourage people from applying based on a prohibited ground The wording of a job ad should be geared to the qualifications and skills that are required for job performance Copyright © 2020 Emond Montgomery Publications. All rights reserved.  44 Issues in Recruitment, Selection, & Hiring: Job Application Forms The application form should Avoid discouraging candidates from applying Avoid eliciting information that directly or indirectly excludes individuals on non job-related grounds An attestation clause at the end of the form requires applicants to attest that the facts stated on the form are accurate Copyright © 2020 Emond Montgomery Publications. All rights reserved.  45 Conditional Offers of Employment No contract of employment exists when a conditional offer is made by an employer until those conditions have been fulfilled by the candidate The conditions may allow the employer to gather information from the candidate that, earlier in the recruitment process, would have been forbidden by the Act Information that should be requested only after a conditional offer: Copy of a driver’s license Work authorization from immigration Social insurance card Transcript or copy of professional credentials Requests for medical or health information Copyright © 2020 Emond Montgomery Publications. All rights reserved.  46 Issues in Recruitment, Selection, & Hiring: Pre- Employment Medical or Fitness Examinations Any form of medical testing Must be left to the conditional offer stage Must be a bona fide occupational requirement (BFOR) The employer must perform the same test on every candidate The employer must maintain confidentiality of test results Copyright © 2020 Emond Montgomery Publications. All rights reserved.  47 Issues in Recruitment, Selection, & Hiring: Pre- Employment Drug and Alcohol Testing Drug or alcohol dependence is a disability Testing in and of itself is not prohibited However, the best advice is not to conduct these tests Pre-employment screening does not measure on-the-job impairment or predict the candidate’s ability to do the job If you test and it comes back positive, it triggers: the responsibility to determine if it is due to a disability; and the requirement to accommodate to the point of undue hardship. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  48 Issues During the Course of Employment: Duty to Accommodate The following are regarded as fundamental principles of accommodation in the context of human rights law: Individualization Dignity Inclusivity Accommodation is a shared and ongoing obligation: Employer Employee Union Copyright © 2020 Emond Montgomery Publications. All rights reserved.  49 Issues During the Course of Employment: What is “Undue Hardship”? Undue hardship is not defined in legislation Occurs when accommodation creates onerous conditions, intolerable costs, or serious disruption Factors considered: Financial cost Size and resources of employer Disruption of operations Morale problems of other employees Substantial interference with rights of other individuals or groups Interchangeability of workforce and facilities Health and safety concerns Copyright © 2020 Emond Montgomery Publications. All rights reserved.  50 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability Gather medical information (with consent) to determine functional abilities Consult with employee, supervisor, union If possible, modify the employee’s current job requirements; if not, assess other available jobs Assess undue hardship of proposed accommodations Implement Monitor frequently Document all facets of the accommodation process—including: Alternatives considered Reasons the alternatives were not accepted Maintain confidentiality throughout Copyright © 2020 Emond Montgomery Publications. All rights reserved.  51 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Disability Essex Police Services Board v Essex Police Association Is an employer required to create a new job based on the reassigned duties of other jobs to satisfy its duty to accommodate? Is an employer required to place the employee who needs an accommodation in a position that is currently occupied by another employee? Jodoin v City of Calgary How diligent must an employer be when searching for accommodation? Copyright © 2020 Emond Montgomery Publications. All rights reserved.  52 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Substance Abuse Substance abuse is a disability Purely recreational use of drugs or alcohol is not a disability Accommodation usually means offering rehabilitation or time off to attend a program An employer is not required to accept ongoing, lengthy absences unrelated to the rehabilitation Be consistent and persistent Condoning Last chance agreements Copyright © 2020 Emond Montgomery Publications. All rights reserved.  53 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Religious Beliefs Religion or creed Dress codes Religious days off Modification of work schedules Central Alberta Dairy Pool Roosma Break policies Friesen v Fisher Bay Seafood Employee’s belief he is commanded to “preach, teach, baptise, and make disciples” unwelcome by coworkers. Is requiring an employee to refrain from preaching during work hours a BFOR? Copyright © 2020 Emond Montgomery Publications. All rights reserved.  54 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Pregnancy and Family Status Sex (pregnancy) Temporary relocation Modified duties Flexible work schedules and break times Family status What is the correct legal test for discrimination on the basis of family status? Health Sciences Association of BC v Campbell River Canada v Johnstone Does the duty to accommodate family status include eldercare? Devaney v SRV Holdings Copyright © 2020 Emond Montgomery Publications. All rights reserved.  55 Issues During the Course of Employment: Fulfilling the Duty to Accommodate Age Social and legal shift in attitude about age discrimination Older workers may need to work for social or financial reasons Older workers make valuable contributions Previous cases justified age discrimination as justifiable for economic reasons and to ensure workforce “renewal” Mandatory retirement Douglas/Kwantlen Faculty Association v Douglas College Dickason v University of Alberta 2008 BC Code amended to prohibit mandatory retirement Association of Justices of Peace of Ontario v Ontario Mandatory retirement does not meet Charter “minimal impairment” test Copyright © 2020 Emond Montgomery Publications. All rights reserved.  56 Issues During the Course of Employment: On- the-Job Drug and Alcohol Testing Pre-employment testing is prohibited On-the-job selective testing may be carried out: Where there is reasonable suspicion of impairment Where an employee is involved in a workplace accident or incident As a part of an agreed rehabilitation or return-to-work plan Where an employee works for a trucking company that operates in the United States and compliance with American law is required Universal random testing may be carried out: If there is evidence of reasonable cause or necessity (rampant drug/alcohol use) Where the workplace is extremely dangerous (e.g. nuclear power facility) Where test result is positive, tailor sanction to fit circumstances (no automatic termination) Copyright © 2020 Emond Montgomery Publications. All rights reserved.  57 Issues During the Course of Employment: Harassment In AB and BC harassment is prohibited if associated with a protected ground The Act prohibits any public display likely to expose a person or class of persons to hatred or contempt Examples of prohibited behaviours include: Verbal or physical abuse Threats, derogatory remarks, jokes, innuendo, or taunts about appearance or belief The display of pornographic, racist, or offensive images Practical jokes that result in awkwardness or embarrassment Unwelcome invitations or requests (explicit or implied) Intimidation, leering, or other objectionable gestures Condescension or paternalism that undermines self-confidence Unwanted physical contact including touching, patting, pinching, or punching Copyright © 2020 Emond Montgomery Publications. All rights reserved.  58 Issues During the Course of Employment: Types of Harassment Poisoned work environment Comments or actions are not directed at an individual, but have made the workplace hostile or unwelcoming to them Sexual harassment Comments or actions based on sex that are unwelcome, or should be reasonably known to be unwelcome Normally requires a course of vexatious conduct rather than a single instance, unless very serious “Sexting” outside of work hours Sexual solicitation Someone in a position of authority makes unwelcome advances or requests for sexual favours The threat of reprisal or promise of reward is explicit Copyright © 2020 Emond Montgomery Publications. All rights reserved.  59 Issues During the Course of Employment: Harassment Legal standard for determining if harassment has occurred: Would a reasonable person think the conduct or comment was inappropriate? There is an onus on the person experiencing the harassment to inform the harasser that the behaviour is unwelcome Employers are legally responsible for promoting a harassment-free workplace: Commitment Well-known policies and procedures Education and awareness Processes for dealing with complaints Prompt investigation by an impartial and knowledgeable person Documentation Confidentiality Copyright © 2020 Emond Montgomery Publications. All rights reserved.  60 Issues During the Course of Employment: Employer Liability for Human Rights Violations Vicarious liability For discriminatory actions of its agents and employees in the workplace Direct liability For discriminatory actions of management Employer is liable for workplace harassment by managers but may avoid liability for non-managerial harassment if it can show: it was unaware that harassment was occurring, it was diligent in preventing the harassment, and it responded appropriately once aware of the harassment. Copyright © 2020 Emond Montgomery Publications. All rights reserved.  61 Issues During the Course of Employment: Investigating Harassment Complaints 1. Investigate in a timely 6. Do not ask leading manner questions 2. Ensure the investigator is 7. Interview third-party unbiased witnesses 3. Give the accused a 8. Document the chance to respond investigation 4. Follow the employer’s 9. Keep and open mind policies and procedures 10. Consider the entire 5. Interview witnesses context separately Copyright © 2020 Emond Montgomery Publications. All rights reserved. Occupational Health and Safety All provinces have extensive legislation to prevent accidents and illness resulting from work and to compensate workers who are injured or made ill by work Key issues are: 1. Preventing accidents and injuries at work 2. Enforcement of OHS procedures and standards 3. Compensating employees injured at work (see Chapter 9) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Alberta Legislation 1. The Occupational Health and Safety Act (OHSA) Prevention of workplace injuries and diseases 2. The Occupational Health and Safety Regulation (OHSR) Detailed rules about the application of the Act 3. The Workers’ Compensation Act (WCA) Deals with consequences of workplace injuries/disease Compensation and rehabilitation of injured workers Copyright © 2021 Emond Montgomery Publications. All rights reserved. BC Legislation 1. The Workers Compensation Act (WCA) Deals with consequences of workplace injuries/illness Compensation and rehabilitation of injured workers Part 3 sets out basic OHS framework Statutory authority for OHSR 2. The Occupational Health and Safety Regulation (OHSR) Detailed regime for prevention of workplace injuries and diseases Requires management systems for occupational health and safety—joint responsibility of all parties Copyright © 2021 Emond Montgomery Publications. All rights reserved. Preventing Accidents and Injuries at Work 1. Internal Responsibility System Employers must establish mechanisms to combat hazards and to facilitate “the right to know” and the “right to refuse” unsafe work Joint health and safety committees (JHSC) 2. External Health and Safety Standards (Legislation) Minimum health and safety standards with mechanisms for enforcement Copyright © 2021 Emond Montgomery Publications. All rights reserved. Shared Responsibility OHS is a shared responsibility whereby each workplace party has duty to ensure a healthy and safe workplace Employers, workers, supervisors, prime contractors, owners, suppliers, corporate officers, and directors Focus is on prevention Copyright © 2021 Emond Montgomery Publications. All rights reserved. Employer Duties Duty to take all reasonable precautions to protect the health and safety of all workers at the workplace (both employees and other workers) Many specific responsibilities Accountability through all levels of management as agents of the employer Copyright © 2021 Emond Montgomery Publications. All rights reserved. Employer Duties (cont’d) Comply with the Provide information legislations training and supervision to Ensure workers know ensure safety about hazards Post copies of legislation Ensure workers know their readily available to workers OHS rights Help JHSCs carry out their Establish OHS policies and duties programs Cooperate with OHS Provide and maintain officers protective equipment, Report accidents/injuries clothing, devices Do not employ underaged Keep accurate records workers Copyright © 2021 Emond Montgomery Publications. All rights reserved. Worker Duties Apply to all workers, including all levels of managers and supervisors To work in compliance with statutes and its regulations To use protective devices or clothing Report any known workplace hazard, including missing or defective equipment Not engage in any horseplay or conduct that may endanger self or others Ensure that their ability to work is not impaired by alcohol, drugs, or other causes Cooperate with JHSC Cooperate with OHS officers Copyright © 2021 Emond Montgomery Publications. All rights reserved. Supervisor Duties: Alberta In Alberta OHSA there is no specific reference to supervisors, but their obligations include: Those of the employer (as its agent) To ensure, so far as is reasonably practicable, the health and safety of workers To ensure that workers are aware of their rights and responsibilities Those of the worker To take reasonable care to protect the health and safety of self and other workers To cooperate with the employer in protecting the health and safety of those present on the worksite (workers and others) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Supervisor Duties: BC British Columbia OHSR establishes distinct duties for supervisors: Ensure safety of workers they supervise Know and comply with the WCA & OHSR rules relevant to that workplace Ensure workers are aware of all health and safety hazards Work with JHSC Cooperate with WCB officers Copyright © 2021 Emond Montgomery Publications. All rights reserved. Duties of Others Prime Contractors: Ensure coordination of all parties at the workplace in complying with WCA Owners: Provide and maintain a premise that is being used as a worksite in a way that ensures health and safety, and compliance with WCA, OHSR, and other regulations and orders Suppliers: Provide tools and equipment that are in safe operating condition, and ensure that these and designated substances or hazardous materials comply with WCA and regulations Officers and Directors: Take all reasonable measures to ensure compliance with Act/Regulations and any orders Copyright © 2021 Emond Montgomery Publications. All rights reserved. Workers’ Rights 1. Right to participate in the health and safety process 2. Right to refuse unsafe work, and 3. Right to know about workplace hazards Copyright © 2021 Emond Montgomery Publications. All rights reserved. Right to Participate: JHSC Advisory group of worker and management representatives who meet regularly to discuss health and safety concerns, review progress, and make recommendations JHSC mandatory for workplaces of 20 or more, or where WCB orders one (AB OHSA, s 16 and BC WCA, s 125) At least half the JHSC members must be workers (employer cannot hold majority) Employer cannot interfere with the choice of the worker representative to the committee Copyright © 2021 Emond Montgomery Publications. All rights reserved. Right to Participate: JHSC (cont’d) 1. Identify unhealthy or unsafe work situations, and advise on systems for addressing risks 2. Consult workers and employers on safety matters 3. Advise employer on programs and policies to improve workplace health and safety 4. Participate in health and safety inspections, investigations, and inquiries, including responses to complaints In Alberta, JHSC committees have the statutory right to conduct investigations. Copyright © 2021 Emond Montgomery Publications. All rights reserved. Right to Refuse Unsafe Work Workers have the right (and duty) to refuse work where they reasonably believe that the work creates “undue hazard” (BC) or “imminent danger” (AB) to themselves or another person condition of equipment physical condition of workplace violation of OHS legislation Some occupational restrictions apply for inherently dangerous occupations Employer forbidden from dismissing or penalizing an employee for exercising the right to refuse Copyright © 2021 Emond Montgomery Publications. All rights reserved. Right to Refuse Unsafe Work (cont’d) Stage 1: The worker must immediately tell supervisor and state reasons The supervisor/employer must immediately investigate the situation and either: a) remedy the situation; or b) inform the worker that the refusal lacks validity Stage 2: In BC, a worker can ask supervisor to investigate further, in presence of worker and JHSC member/union rep In AB the second step is filing a complaint with an OHS officer who moves directly to investigation Stage 3: In BC if there is no resolution at Stage 2, employer and worker must notify WCB officer, who investigates Copyright © 2021 Emond Montgomery Publications. All rights reserved. Right to Know: WHMIS Workers have a right to know about potential workplace hazards, including machinery, processes, and substances WHMIS, the workplace hazardous materials information system, applies to all industries and workplaces Employer WHMIS responsibilities: 1. Prepare and maintain an inventory of hazardous materials 2. Label hazardous materials 3. Prepare and maintain product Safety Data Sheets (SDSs) SDSs must be readily available to workers who are exposed or may be exposed 4. Provide training to workers who are exposed or are likely to be exposed Copyright © 2021 Emond Montgomery Publications. All rights reserved. Workplace Violence and Bullying Violence = threatened, attempted or actual conduct that is likely to cause physical injury Employers must address incidents of violence and take steps to prevent violence Risk assessment for workplace violence Instruct workers regarding how to identify and respond to violence Create written policy with procedures for reporting, investigating and documenting incidents Develop appropriate responses to violence Copyright © 2021 Emond Montgomery Publications. All rights reserved. Workplace Violence and Bullying (cont’d) Harassment = any unwanted physical or verbal behaviour that offends or humiliates, that persists over time or is a serious one-time incident BC expanded scope of “violence” in 2013: Now includes bullying and harassment Employers must hold workshops for all employees on avoiding bullying and harassment AB added harassment as a workplace hazard in 2018 Employers must conduct harassment hazard assessments and implement measures to eliminate/control Provide training to workers to recognize, prevent and respond to Copyright © 2021 Emond Montgomery Publications. All rights reserved. harassment External Health and Safety Standards Alberta OHS Code and BC OHSR Extensive detailed standards applicable to all employers or to specific industries, occupations, and trades Industry-specific standards and regulations may address a wide range of subjects: E.g. procedures for operating and maintaining, ventilation, temperature, cleanliness, exposures to chemicals, etc. Enforcement is a key issue Copyright © 2021 Emond Montgomery Publications. All rights reserved. Accident Investigation Procedures 1. Investigate ASAP after the injured worker receives medical attention 2. Prepare and file WCB report 3. Obtain statement from injured worker where possible 4. Examine equipment, take photographs and samples 5. Interview all witnesses 6. Have someone witness the interviews 7. Prepare and have witness statements signed 8. Do not tamper with the site 9. Develop/implement remedial action plan 10.During OHS investigation, consider right to counsel Copyright © 2021 Emond Montgomery Publications. All rights reserved. Administration of the Legislation: Inspections Inspections can result from an incident or may be random Inspectors have broad powers, including the following rights: 1. Enter workplace at any time without a search warrant 2. Conduct tests at the employer’s expense 3. Request the identity information of workers and employers at work sites 4. Question anyone in the workplace 5. Speak to any worker privately 6. Compel production of any documents 7. Remove any equipment machine or device for testing 8. Stop work orders Copyright © 2021 Emond Montgomery Publications. All rights reserved. Due Diligence Defence OHS Offences are strict liability – intent or negligence are not required for conviction Due diligence = an attempt to show that every reasonable precaution was taken A health & safety program which meets due diligence standards will include: 1. Designated senior manager responsible for compliance 2. Health and safety policy 3. Safety orientations 4. Regular safety inspections 5. Monthly safety meetings 6. Employer support and response to JHSC 7. Many other actions as listed on page 325. Copyright © 2021 Emond Montgomery Publications. All rights reserved. Penalties Administrative Penalties Penalties apply to individuals or corporations (both are “persons”) BC fines*: Maximum for first conviction: $ 724,644.41 + $36,232.25 for each day the offence continues Maximum for subsequent convictions: $1,449,288.80 + $72,434.44/day AB fines: For first conviction: $500,000 + $30,000/day For subsequent convictions: $1,000,000 + $60,000/day *Amounts as of Jan. 2020—WCB adjusts fines each year to match inflation rate Copyright © 2021 Emond Montgomery Publications. All rights reserved. Criminal Liability of Organizations Criminal Code makes it a crime not to take reasonable steps to prevent bodily harm arising from work Organizations liable for individual or combined effects of actions by several employees Organization liable for actions of senior officers and for members, agents, and employees Summary conviction – less serious offence fines under $100,000 Indictable offence – more serious, no maximum fine and potential of life imprisonment Copyright © 2021 Emond Montgomery Publications. All rights reserved. Emergency Response: Planning for a Pandemic OHS legislation does not currently require pandemic preparedness BUT pandemic safety measures are required Components of a pandemic plan (see page 332) Provide credible, up-to-date information Screening customers, suppliers and the public Minimizing interactions (social distancing) Avoiding unnecessary travel Altering physical workspace Provide personal protective equipment Higher standards of cleanliness Changes to absence management policies Extra stocks of critical supplies Working from home Copyright © 2021 Emond Montgomery Publications. All rights reserved.  88 Privacy Privacy of personal information is a relatively new issue In past, privacy was protected by the practical difficulties in compiling records Today, vast amount of sensitive, personal information can be compiled, analysed, transferred, and manipulated in nanoseconds Privacy concerns are now paramount Employers can be vicariously liable for privacy invasions carried out by their employees in the course of their duties Personal Information Protection and Electronic Documents Act (PIPEDA): federal legislation that sets out how organizations may collect, use, and disclose personal information Copyright © 2021 Emond Montgomery Publications. All rights reserved.  89 What is “Personal Information”? It is information about an identifiable individual and includes such things as: Age, sex, religion, ethnicity, opinions, photographs ID numbers, home address, residential phone number, personal email address, web browsing Purchasing and spending habits, income, credit records, loan records Disciplinary actions, employee files, pay, benefit records Blood type, medical records Copyright © 2021 Emond Montgomery Publications. All rights reserved.  90 Freedom of Information and Protection of Privacy Act Provides individuals with the right to request access to information in the custody or control of public bodies, while providing public bodies with a framework within which they must conduct the collection, use, and disclosure of personal information Public bodies include: A department, branch, or office of the government An agency, board, commission, corporation, office, or other body designated as a public body in the regulations of the Act Educational bodies Health care bodies Local government bodies Self-governing professions Copyright © 2021 Emond Montgomery Publications. All rights reserved.  91 Freedom of Information and Protection of Privacy Act Provides access to records, unless the Act specifically allows the record to be withheld The right of access is balanced by the need to protect individual privacy You can ask to see records held by the government, including personal information about you You have the right to request that your personal information held in government files be corrected This is not an absolute right, and a request to correct information may be turned down Individuals can also complain to the commissioner if they believe their personal information has been collected, used, or disclosed in violation of the Act Provides for review by the Information and Privacy Commissioner Copyright © 2021 Emond Montgomery Publications. All rights reserved.  92 PIPEDA: Who’s Covered? Jan. 1, 2001—federal government enacted privacy legislation called the Personal Information Protection and Electronics Document Act (PIPEDA) to cover personal information held by organizations in the private sector Applies to personal information collected, used, disclosed, and retained on employees and customers, etc. in federally regulated industries Alberta, BC, other provinces passed comparable legislation: Personal Information Protection Act (PIPA), for provincially regulated industries: In November 2013, the Supreme Court of Canada struck down Alberta’s PIPA, providing one year to bring into compliance Alberta’s PIPA has since been amended (December 2014), is undergoing a comprehensive review Copyright © 2021 Emond Montgomery Publications. All rights reserved.  93 PIPEDA: Some Recent Amendments June 18, 2015—the federal Digital Privacy Act was proclaimed, with some key changes to PIPEDA Where security has been breached and there is risk of significant harm, the organization must report and keep records of the breach The definition of “personal information” has been broadened PIPEDA now covers applicants as well as employees Business contact information is exempt if used solely for the purpose of communicating for business, employment, or professional matters Permission to disclose without consent to third parties has been broadened in cases involving illegality, fraud, and financial abuse Privacy Commissioner can enter into compliance agreements Copyright © 2021 Emond Montgomery Publications. All rights reserved.  94 Privacy: 10 Principles 1. Accountability: the organization that collects the info must _____________________________________________________ 2. Identify the purpose: the organization must _____________________________________________________ 3. Consent: the individual _______________ prior to collection (some exceptions) 4. Limited collection: the organization must _____________________________________________________ Copyright © 2021 Emond Montgomery Publications. All rights reserved.  95 Privacy: 10 Principles (cont’d) 5. Limited use, disclosure, and retention: the organization may _______________________ __________________ and must not _____________________________________________________ 6. Be accurate: the organization should ensure that the info is ________________. Individuals are given the opportunity to correct errors 7. Provide safeguards: the organization should protect info against _____________________________________________________ Copyright © 2021 Emond Montgomery Publications. All rights reserved.  96 Privacy: 10 Principles (cont’d) 8. Be open: Privacy policies and procedures should _______________. Supervisors should be familiar with them. 9. Give individuals access: the organization must provide individuals with __________________ ____________________________________________ ____________________________________________ 10. Provide recourse: the organization must ____________________________________________ Copyright © 2021 Emond Montgomery Publications. All rights reserved.  97 Personal Information Protection Act (PIPA) In 2003, British Columbia enacted legislation comparable to PIPEDA, called the Personal Information Protection Act (PIPA) for provincially regulated industries Includes workplace rules for employee personal information In 2004, Alberta enacted legislation comparable to PIPEDA, called the Personal Information Protection Act (PIPA) for provincially regulated industries Includes workplace rules for personal employee information Amended 2005, 2009, 2010, 2014 Currently undergoing a comprehensive review Copyright © 2021 Emond Montgomery Publications. All rights reserved.  98 PIPA: Who’s Covered? Provincially regulated organizations to which PIPA applies include: Non-profit organizations Trade unions Private schools Partnerships Corporations Unincorporated associations Professional regulatory associations Any individual acting in a commercial capacity Any individual acting on behalf of a corporation, unincorporated association, trade union, or partnership Copyright © 2021 Emond Montgomery Publications. All rights reserved.  99 PIPA: Principles Governs the collection, use, and disclosure of personal information by private sector organizations Recognizes both the right of an individual to have his or her personal information protected, and the need of organizations to collect, use, or disclose personal information for reasonable purposes Personal information in the custody or control of private sector organizations, as it relates to commercial transactions or activities, are subject to PIPA For workplaces, PIPA also covers personal information about employees Copyright © 2021 Emond Montgomery Publications. All rights reserved.  100 PIPA: Principles (cont’d) PIPA allows individuals to request access to their own personal information, including employee information, and to request correction of inaccurate personal information. Individuals may also make a complaint to the commissioner if they believe their privacy has been violated (e.g., computer monitoring) or their personal information has been collected, used, or disclosed without proper authority or their consent. Allows the commissioner to hear privacy complaints and review the decisions of private sector organizations to deny individuals access to their own personal information, or to refuse requests for correction of that information. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  101 Privacy: Steps to Compliance 1. Appoint Chief Privacy Officer (CPO) 2. Assess how organization collects, stores, retains, uses, and discloses personal information for customers/clients/patients/suppliers and employees Include marketing, sales, HR, payroll, finance, purchasing, technical 3. Develop policies and procedures to bring organization into compliance 4. Train all staff to ensure awareness 5. Monitor performance of policy Copyright © 2021 Emond Montgomery Publications. All rights reserved.