Happy new year! Let’s hope that this is the beginning of the end of COVID-19. To start the year off with something light but action-oriented, I thought I would propose three things that you can do this week to help get your organization started off on the right foot in 2022 from an employment law perspective.
1. The annual employment contract update
Nothing is certain – nothing that is, except death, taxes, and me screaming from the rooftops that you should regularly review and update your employment agreements. I still find that many organizations do not use written employment agreements at all or continue to use older ones with outdated termination clauses that may not provide the expected protection.
For context, your non-unionized employees are, by default, entitled to common law “reasonable notice of termination” unless they have contracted out of that entitlement with a valid and enforceable termination clause in a written employment agreement (note that this analysis would be different if your workplace is unionized). Many employers are surprised to learn that the Employment Standards Act, 2000 (“ESA”) notice periods set the floor, not the ceiling, of employee termination entitlements. Without that enforceable termination clause in an employment agreement, your organization will be at risk of a wrongful dismissal lawsuit even if it has paid out ESA minimums on termination. In fact, the most common time I am asked to prepare an employment agreement is after a client has been sued and settled a case that may not have been brought in the first place had the client invested in a contract first.
So, pour yourself a coffee and look in your employee files. When was the last time a lawyer reviewed the templates you’re using for new hires or for employee transfers / promotions? What percentage of your workforce is missing an updated termination clause in their contract? With this information in hand, you can take the first steps towards getting consistent, updated employment agreements that could save tens of thousands of dollars in settlement and legal costs. And after you have finished the update, set a recurring reminder to do the same thing again next year. And the year after… etc.
2. Set a calendar reminder for the Right to Disconnect
In December, I blogged about the incoming “right to disconnect” and what it means for employers. By way of update, we still haven’t seen any regulations passed under the amended ESA that actually establish a right to disconnect for employees. It remains true, for now, that there is only an obligation on employers to prepare and introduce a “policy with respect to” disconnecting from work by June 2, 2022.
I encourage you to put two calendar reminders in. The first should be a reminder in April to check to see whether the provincial government has introduced any regulations that will help guide your policy (I will likely continue to provide updates via this blog, or can help via email as well). The second should be a reminder in May to start putting the policy together for an early June deployment.
3. Haven’t heard from an employee in a while? It might be wise to check in
Throughout the COVID-19 pandemic, it has been common for employers to be generous with prolonged employee absences and leaves. In many cases, employees have requested leaves or revised schedules based on personal circumstances that may have changed since the requests were granted. If this sounds like one or more of your employees, it is likely a good idea to check in with the employee, in writing, and confirm their status.
Taking action now can have multiple benefits. First, if you know an employee won’t be returning, then ending employment earlier may be better than later. The longer that employee remains inactive, the more termination and severance liability your organization may ultimately have.
Second, you can confirm that the employee on a leave remains entitled to be away from work. Circumstances may have changed since the leave was granted, which may allow your organization to recall the employee to work legitimately. For example, if a leave was granted for medical reasons from last year, it may be appropriate to ask for updated medical information.
Third, many of our clients have reported an unusual amount of unresponsiveness from employees away from work. If you can show a record of good faith attempts to contact employees over an extended period of time, it may help protect your organization in the event that you later assert job abandonment or repudiation of employment.
All that said, sometimes silence is golden. If your organization is perfectly content with having a couple employees on unpaid leaves of absence, or if it would be fantastic if certain of your employees find new employment in the meantime and never return, then it might be best to hang tight for a little while.
As always, if your organization would like to discuss any part of this blog, or any other employment-related matter, any member of Siskinds’ Labour & Employment Group would be pleased to assist.