F2024 Quiz 2 ELAW PDF

Establishment and Modification of Employment Contracts Offer, Acceptance, and Consideration May be verbal or in writing Some agreements must be in writing (e.g. Apprenticeship Agreements) Offer must be firm and unequivocal Can be subject to a condition pre...

Establishment and Modification of Employment Contracts Offer, Acceptance, and Consideration May be verbal or in writing Some agreements must be in writing (e.g. Apprenticeship Agreements) Offer must be firm and unequivocal Can be subject to a condition precedent; if so, then both sides must act in good faith to fulfil Becomes a contract with an unequivocal and unconditional acceptance and evidence of consideration Once the contract is formed, neither party can back out without due notice or pay in lieu This is the basis for the concept of “reasonable notice” Copyright © 2021 Emond Montgomery Publications. All rights reserved. Advantages of Written Contract Well-drafted written contracts have several advantages that include: Reduced risk of misunderstandings Potential conflicts addressed at start (e.g. clauses that might limit the rights an employee might otherwise have such as a limit to their entitlement upon termination) Less uncertainty Copyright © 2021 Emond Montgomery Publications. All rights reserved. The Employment Contract Checklist Names of employer and Any required notice of employee termination Job title, brief description, Reference to any collective reporting relationships agreement Start date and (if Ownership of applicable) end date inventions/intellectual property Rate and calculation of pay, and when paid Statement about applying organizational policies Terms and conditions re hours of work, benefits Details of work location(s) commencement and Salary review timeframes accrual Restrictive Covenants Copyright © 2021 Emond Montgomery Publications. All rights reserved.  “Express” terms “Express” terms in employment contracts are generally specific for a point in time, but: Parties cannot foresee all the contingencies that may play out over the course of the employment relationship Position, brief description, basic pay, vacation, expected hours of work May also include Confidentiality Agreement, Non- solicitation, and Non-competition clauses Copyright © 2021 Emond Montgomery Publications. All rights reserved. Express Contractual Obligations When obligations are clearly expressed in the agreement, the courts enforce them literally But the courts may interpret the language contrary to the interests of the dominant party if the clause is unduly onerous on the employee If the terms are extremely one-sided then the contract may be void due to “unconscionability” and/or duress When obligations are ambiguous, the courts can rely on extrinsic evidence (e.g., past practice in interpreting the language) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Implied Contractual Obligations Some of the most fundamental and enduring obligations owed by an employee to an employer are not spelled out in a written employment contract (e.g. an employees duty of loyalty to their employer) Obligations can be oral, written, or some combination These attest to the unexpressed, factual intentions of the employer and employee as evidenced from all the surrounding circumstances Past practices, pre-contractual negotiations, customs Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms Customize—do NOT use single, standard contract for all employees; use template with options to enable customization Most jobs—key terms found in letter of hire / final contract that expressly incorporate employer’s policy manuals Key terms include: names of parties, date contract begins, position, job description, duration (if it is for a fixed term), compensation, and termination notice For more senior or specialized jobs, a more formal customized contract is advisable Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 1. Job description 2. Remuneration 3. Term—fixed or indefinite? No termination notice required if contract is for a fixed term and employment ends at end of term (subject to Employment Standards) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Common Contractual Terms (cont’d) 4. Termination clause Better to deal with it up front Clause can set out method of payment of termination pay May include notice of resignation requirement This is helpful for more senior or more difficult roles to fill Clause can set out just cause for dismissal without notice Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 5. Probationary Period: Opportunity to test the employees’ suitability Burden to end the relationship if unsuitable is lower Not implied by common law so must be specified in contract 6. Relocation: address issue if relevant Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 7. Benefits: E.g., chance to be specific on issues such as how vacation time is determined, use of company car, or reimbursement for use of own car. 8. Restrictive Covenants: Non-Disclosure Non-Solicitation Non-Compete Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (Restrictive Covenants) An “express” term of employment An agreement preventing employees and former employees from: Exploiting the employer’s client relationships, trade secrets, confidential info, goodwill Competing with the employer Applies during employment and after the employment relationship has ended Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (Restrictive Covenants) (cont’d) Any restrictive covenant is void as being a restraint of trade unless all of the following conditions are met: 1. Protects a legitimate “proprietary interest” of the employer that is worthy of protection “Firm-specific”, not just general expertise and skills 2. Reasonable in terms of duration and geographic location Only where competition exists for the employer’s product Only so long as it takes for the employer to recover 3. Must not be contrary to the public interest In general restrictions must only got as far as necessary to protect a legitimate business interest Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (Restrictive Covenants) (cont’d) Onus (i.e., burden of proof) is on the employer to prove validity Any doubts are resolved in favour of the employee Reflecting appreciation for the disequilibrium in bargaining power Note: An otherwise valid restrictive covenant ceases to bind an employee if they are found to have been wrongfully dismissed Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (Restrictive Covenants) (cont’d) Non-competition: Do not use standard cause—go only so far as necessary to protect employer’s legitimate business interests Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 9. Intellectual Property Ownership (assignment of inventions): Also important to establish who owns client relationships in a sales environment (e.g. book of business) 10. Choice of Law: Sets out jurisdiction where any dispute under the employment contract will be heard Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 11. Corporate Policies: Ensure employees know from outset that manual contains effective contractual terms; provide employee with copy before contract signed 12. Entire Agreement: Signed contract constitutes the entire agreement between the parties; no prior conversations, previous drafts or promises are binding Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 13. Inducement/Allurement/Enticement: Will employer recognize service from former employer regarding termination notice? 14. Independent Legal Advice: Key clause which states that employee has had ample time and opportunity to seek independent advice before signing—especially important where employee not sophisticated Important to provide opportunity for such advice in situations where the contract contains a clause(s) which seek to limit the rights an employee would normally otherwise have (e.g. termination clause) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Common Contractual Terms (cont’d) 15. Severability Clause: Clause stating that in the event that a provision in the contract is invalidated by a court, this will not affect the validity of the remainder of the agreement. 16. Golden Parachute: Executive Employment Contracts Similar to other contracts but with additional benefits, to induce the executive to act in the interests of the employer during periods of significant transition without being distracted by their personal interests 17. Implied Duty to Maintain Confidentiality Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Enforceability and Interpretation of Written Employment Contracts 1. Lack of consideration “Consideration” in law means something of value given in exchange for the other parties’ promise— otherwise it’s a gratuitous promise e.g. ASM Corrosion Control Ltd v George and Watson v Moore Corp Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Enforceability and Interpretation (cont’d) 2. Inequality of bargaining power—harsh contract terms (considered by the courts to be unconscionable) can result from employer’s dominant bargaining position and undue pressure. To prevent this the employer should: Seek reasonable balance in contract terms Give job candidate time to review draft contract and obtain independent legal advice wherever appropriate Expressly refer in contract to opportunity for independent legal advice Explain major terms, and have candidate initial them Copyright © 2021 Emond Montgomery Publications. All rights reserved.  Enforceability and Interpretation (cont’d) 3. Obsolescence—the terms no longer reflect the employee’s position within the organization. To prevent this: Periodically review and update agreements to reflect changes in job duties Make promotions conditional on signing updated agreement Set out minimum and maximum notice provisions that apply regardless of changes in job duties Copyright © 2021 Emond Montgomery Publications. All rights reserved. Enforceability and Interpretation (cont’d) 4. Failure to meet minimum statutory standards: Contract terms must meet or exceed minimum statutory standards, (e.g., notice of termination requirements of Employment Standards) Otherwise, the term is unenforceable and the employer will be liable for full common law reasonable notice. e.g., Machtinger v HOJ Industries Ltd Copyright © 2021 Emond Montgomery Publications. All rights reserved. Enforceability and Interpretation (cont’d) 5. Use of ambiguous language “Contra proferentem” rule—where the terms of a contract can bear more than one possible interpretation, ambiguities will be interpreted against the drafter of the agreement (usually the employer) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  25 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.  26 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.  27 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.  28 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.  29 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.  30 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.  31 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.  32 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.  33 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.  34 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.  35 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.  36 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.  37 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.  38 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.  39 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.  40 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.  41 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.  42 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.  43 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.  44 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.  45 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.  46 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.  47 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.  48 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.  49 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.  50 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.  51 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.  52 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.  53 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.  54 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.  55 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.  56 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.  57 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.  58 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.  59 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.  60 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.  61 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.  62 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.  63 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.  64 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.  65 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.  66 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.  67 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.  68 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.  69 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.  70 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.  71 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.  72 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.  73 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.  74 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.  75 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.  76 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.  77 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.  78 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.  79 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.  80 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.  81 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.  82 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.  83 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.  84 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 7. Interview third-party is 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 safety Ensure workers know about hazards Post copies of legislation readily available to Ensure workers know their workers OHS rights Help JHSCs carry out their Establish OHS policies duties and programs Cooperate with OHS Provide and maintain officers protective equipment, clothing, devices Report accidents/injuries Keep accurate records Do not employ underaged Copyright © 2021 Emond Montgomery Publications. All rights reserved. workers 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 Stage 4: OHS/WCB officer makes a decision and orders corrective action if appropriate 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 harassment Copyright © 2021 Emond Montgomery Publications. All rights reserved. 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.  111 Objectives of the Legislation The workers’ compensation (WC) acts of Alberta and BC The WC Act is a no-fault insurance scheme for work- related injuries or diseases Employers pay premiums that fund the cost of the system The trade-off WC compensates workers who are injured on the job or contract an occupational disease In exchange, employers are protected from being sued by injured workers Legislation and WC regime increasingly focused on prevention and preventative measures Copyright © 2021 Emond Montgomery Publications. All rights reserved.  112 Key Features of the Legislation 1. No-fault—pays out regardless of employer or employee negligence 2. Benefits are funded by premiums 3. It is illegal for workers to contribute to WC premiums 4. WC rights cannot be waived Copyright © 2021 Emond Montgomery Publications. All rights reserved.  113 Key Features of the Legislation (cont’d) 5. Coverage is mandatory for most employers 6. Focus is on early and safe return to work (RTW) 7. Vocational rehabilitation for employees unable to return to their original jobs 8. Administered by WC boards (WorkSafeBC and WCB Alberta) Copyright © 2021 Emond Montgomery Publications. All rights reserved.  114 Coverage Most industries are covered Some industries are not compulsorily covered but may apply for coverage if they choose Financial institutions Recreational and social clubs Broadcasting stations Law firms Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  115 Coverage (cont’d) Elimination of the agriculture exemption in Alberta Workers not covered include: Independent contractors Sole proprietors Executive officers Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  116 WCB Benefit Eligibility Must be “arising out of and in the course of employment” The injury need not result from performance of the job so long as it is reasonably incidental to it Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  117 WCB Benefit Eligibility (cont’d) Wilful Misconduct If the injury is “attributable primarily to the serious and wilful misconduct of the worker,” the injury will not likely be covered Occurs during a criminal act Occurs while intoxicated Is the result of an intentional self-inflicted injury Fighting when the issue is purely personal Horseplay if it is a serious deviation from employment duties Activities that are exclusively personal and have no direct or indirect relationship to employment duties. Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  118 WCB Benefit Eligibility (cont’d) Disability Claims Gradual onset Pre-existing conditions Occupational diseases Causal relationship (clear connection between work or work conditions and recognized disease) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  119 WCB Benefit Eligibility (cont’d) Mental Stress or disorder and chronic pain Work-related events are the predominant cause Events must be excessive or unusual There is objective confirmation of the events Diagnosed by an appropriately qualified medical expert Are not the result of making a compensation claim Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  120 Disability Claims The onus is normally on the worker to show a causal relationship with work Except: PTSD for first responders Certain cancers and heart attacks for firefighters Schedule B to the British Columbia WC Act and the Alberta WC Regulation Lists industrial diseases that arise from specific industries If a worker contracts a listed disease, there is a rebuttable presumption that the disease results from employment Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  121 What Do Benefits Cover? 1. Lost earnings on the day of the injury paid by the employer 2. Health Care Costs 3. Temporary Partial Disability 4. Permanent Total Disability Payable for life 5. Temporary Total Disability Periodic payments in the same amount as if the employee had been left permanently disabled Payments cease after recovery Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  122 What do Benefits Cover? (cont’d) 6. Permanent Partial Disability or Disfigurement Payable for life 7. Vocational Rehabilitation Following many types of injuries or illnesses, the worker may rejoin the work force in some other capacity Invariably, retraining the worker to gain new knowledge and skills is required WCB will finance this retraining Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  123 What do Benefits Cover? (cont’d) 8. Death and Survivor Benefits A spouse who survives a worker who died from a compensable injury may be entitled to a lump-sum payment based on factors such as The deceased’s net average earnings The number of dependent children The dependent's entitlement to CPP earnings Whether the spouse is incapacitated Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  124 Case Study: Robert Robert is a 38-year-old head auto mechanic at Otto’s Body Shop He has worked there for four years, earning $1000 net per week At the beginning of his eight-hour shift, Robert tore a ligament in the thumb of his right hand (the same ligament he damaged several years earlier working for a previous employer) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  125 Case Study: Robert (cont’d) Otto asks a co-worker to drive Robert to the hospital Robert has badly injured his hand and will not be able to use it for four weeks He will required extensive physiotherapy to regain full use On the day of the injury, Otto must pay Robert’s full wages and benefits Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  126 Case Study: Robert (cont’d) Robert’s physiotherapy and treatments are 100% covered by WCB Monetary benefits: WCB will compensate for loss of earnings from the first working day after the date of the injury, based on 90 percent of the employee’s pre-injury net earnings For Robert: $1000 (net average earnings) times 90 percent = $900 per week Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  127 Case Study: Robert (cont’d) After four weeks off work, Robert returns on modified duties, earning $500 (net) per week Robert’s net loss of earnings are $1000 minus $500 = $500 per week His loss of earnings benefits are $500 times 90% = $450 per week In total, Robert earns $500 (net salary) plus $450 (WCB benefits) or $950 per week while on modified duties Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  128 Duty to Co-operate The goal of WCB is to return a worker to the pre- accident employer where possible Employer and employee therefore must Keep in touch Disclose medical information that relates to functional abilities Make any modifications to facilitate an early return Failure by the employee to provide information may result in a suspension of benefits Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  129 Funding the WC System Employer Assessments Employers pay the full cost of the system by means of premiums It is illegal for an employer to recover any part of their premium from workers Employers must register with WCB Employers are required to provide information that will permit the WCB to classify and assign it a base insurance rate according to: type of industry, and potential hazards Certificates of recognition (COR) (both provinces) Alberta’s Partnerships in Injury Reduction (PIR) & BC’s Partnerships in Injury & Disability Prevention Program (“Partners Program”) Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  130 Effective Claims Management Establish effective procedures for investigating injuries Complete and file an accident report to initiate the claim process Document all claims, however minor Ensure justifiable claims are compensated promptly Challenge only truly doubtful claims, but protest them from the outset Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  131 Effective Claims Management (cont’d) Keep notes of all contacts with WCB Establish a return-to-work plan and accommodate Do not contact an employee’s physician Ensure confidentiality of all medical files—keep them separate from personnel files. Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.  132 Appeals A worker, dependent, or employer who disagrees with a decision may request a review BC time limit = 90 days WCB Appeals Commissions are independent of WC Boards Copyright © 2021 Emond Montgomery Publications. All rights reserved. Copyright © 2021 Emond Montgomery Publications. All rights reserved.