With May now upon us, and as we bid farewell to one of the harshest winters in recent memory, thoughts turn to spring cleaning. To freshening up. To putting our houses back in order.
In that spirit, Rubin Thomlinson offers the following spring cleaning suggestions, from the employment law perspective.
- New Occupational Health & Safety Training Requirements
As of July 1, 2014, all Ontario employers must be compliant with Regulation 297/13 to the Occupational Health & Safety Act, which requires that:
- All workers be provided with Occupational Health & Safety Awareness training, which covers (among other things): the rights and obligations of workers, supervisors and employers; the roles of the Joint Health & Safety Committee, the Ministry of Labour, the Workplace Safety & Insurance Board and other designated entities in the arena of health & safety compliance; and common workplace hazards.
- All supervisors be provided with enhanced training that also deals with (among other things): recognizing, assessing and controlling workplace hazards.
Significantly, these training obligations apply not only to new hires, but also to existing personnel. Accordingly, it is important for employers to plan ahead, and to begin working (if efforts are not already underway) to ensure that their training programs are up and running in enough time to allow for the training of all current workers and supervisors before the July 1, 2014 deadline.
- Unpaid Internships
In recent months, the media has been buzzing with stories related to unpaid internships; and the Ontario Ministry of Labour has announced an enforcement “blitz” targeting internship programs over the period of April to June of this year. In particular, the Ministry will be scrutinizing compliance with the Employment Standards Act, 2000 (the “ESA”), which circumscribes a very narrow set of circumstances in which an intern can be unpaid and not considered an “employee.” In that regard:
- The protections of the ESA do not apply to secondary school students working in co-op/ work experience programs approved by their schools, and to individuals who perform work under similar programs approved by a university or college of applied arts and technology; and
- The definition of “employee” under the ESA excludes an “individual receiving training” if all of the following criteria are met:
- The training is similar to that which is given in a vocational school.
- The training is for the benefit of the individual.
- The person providing the training (i.e. the employer) derives little, if any, benefit from the activity of the individual while he or she is being trained.
- The individual does not displace other employees of the employer.
- The individual is not given a right to become an employee—i.e. he or she is not guaranteed a job at the end of the training.
- The individual is advised that he or she will receive no payment for the time that he or she spends in training.
Any purported unpaid “internship” that does not meet all of those criteria is unlawful; and, in such circumstances, the so-called interns are in fact employees who are entitled to the protections of the ESA and other applicable law.
Accordingly, as part of any spring cleaning exercise, employers that maintain internship programs should carefully review the details of how those programs are both designed and implemented, to ensure that they do not present liability—i.e. liability to fines from the Ministry of Labour, and liability to employment-related claims from the “interns” themselves.
Since the Accessibility for Ontarians with Disabilities Act (“AODA”) came into force in 2005, its compliance obligations have rolled out in stages—all with a view to making Ontario completely barrier-free by 2025.
Further to that mandate, the Ontario government has enacted several compliance standards, including the Integrated Accessibility Standards (the “Integrated Standards”). For private sector organizations with 50+ employees in Ontario, the deadline for compliance with several requirements of the Integrated Standard was January 1, 2014. Those obligations include:
- Creating accessibility policies that show a commitment to increasing accessibility within the organization, and ensuring that those policies are available to the public upon request.
- Establishing a multi-year accessibility plan that details the specific steps that the organization will take to remove and prevent accessibility barriers. Such an accessibility plan should be posted in the workplace, and should clarify when prescribed actions will be taken, what resources will be needed, and who will be responsible for each step.
- Ensuring that any new website, or any significant refresh of an existing website, conforms to the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0, Level A. To meet this requirement, it is important for organizations to consult with appropriate experts in web design.
This spring, employers should make a point of confirming their compliance with the January 1, 2014 deadline obligations, and should also begin looking ahead to January 1, 2015, when private sector organizations with 50+ employees in Ontario will be required to (i) make any existing feedback processes (such as comment cards or online surveys) accessible upon request, and (ii) provide training on the requirements of the Integrated Standards and the disability-related provisions in the Ontario Human Rights Code to:
- all paid and unpaid employees and volunteers;
- everyone involved in developing the organization’s policies; and
- anyone who provides goods, services or facilities on the organization’s behalf.
- Tune-Up Policies, Offer Letters and Agreements
Technology changes. The law changes. The workplace changes.
To keep up, it is important for employers to periodically review their policies to ensure that they are up-to-date, and that they address new and pressing issues. This spring, employers should consider, for example:
- Whether their workplace drug & alcohol policies need to be updated to reflect the recent and substantial changes to the availability of medical marijuana; and
- Whether their computer use and e-mail policies properly deal with employees’ use of personal devices in the workplace, and the issues presented by the ubiquitous usage of Facebook, Twitter and other social media.
Similarly, employers should think about whether their employment offer letters and other template agreements are due for an update. In that regard, properly drafted agreements can be valuable tools in limiting employers’ obligations to dismissed employees, and in securing important post- employment covenants regarding confidentiality, ownership of intellectual property and non-solicitation. On the other hand, agreements that are out- of-date or otherwise flawed are sometimes far less useful than an employer might realize.
As the old saying goes, “an ounce of prevention is worth a pound of cure”; and, for employers, a spring tune-up of key documents can represent a very valuable exercise in preventative maintenance.
And so, dear readers, welcome to spring. . . and happy cleaning!