Author: Dave Patriarche
Does your firm need to have a Naloxone kit on site?
I got this article (below) that acted as a reminder of Ontario employer obligations under the updated OHSA regulations I’ve include the article and the provincial site providing more detail and locations where you can get your free kit (most pharmacies).
Does your workplace have a naloxone kit? Are you legally required to have one?
In light of the opioid crisis, the Ontario government passed Bill 88, Working for Workers Act, 2022 ( Act ), which amended, among other things, the OHSA to prescribe the inclusion of naloxone kits in select workplaces.
The OHSA now requires an employer who becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at the workplace to provide and maintain a naloxone kit in the workplace.
Naloxone can temporarily reverse an opioid overdose. Learn how to recognize an opioid overdose and use naloxone to reverse it.
EI sickness benefits being extended
We’ve been playing a guessing game since the federal government first announced changes to the EI sickness benefit back in the April 2022 budget. When it would happen, and how it would work with private sickness benefits (WI/STD, LTD)etc. were just the beginning. Well, the mystery is starting to clear up with December 18th being the go-live date, providing a more generous benefit increasing from the current 15 weeks to 26 weeks.
So, what does this mean for group disability plans? There is still EI reform happening and more details are expected in the coming weeks and months specifically around the STD rate reduction program (this only applies if you have a formal STD plan and meet the qualifications). We’ll watch and share more about this as it comes out.
Should you change your long term disability benefit as a result of this change?
There are a two primary options for employers to consider.
- Keep your existing LTD waiting period of 112 or 119 days. This will provide an LTD benefit 2 months before the EI ends and in most cases, will provide a higher benefit period than the EI benefit maximum. Insurers do a pretty good job of getting people back to work, so the earlier intervention should help with better outcomes. The downside is that there could be a duplication of EI and LTD payment, which the employee would have to repay (but the LTD benefit is higher so not a hardship).
- Amend your plan to match the new EI sick benefits. This would delay your LTD benefits from 4 to 6 months. A small rate decrease would be experienced (~3-7%), but staff would have the reduced benefit that EI offers. This would also delay the LTD insurer from getting involved, which can make rehabilitation and return to work harder in some cases (early intervention is always better).
The decision will be unique to each employer’s situation. Some have no LTD benefit, so no changes are required. Some insurers will change all their plans one way or the other while others will leave it as is, but most are expected to allow employers to choose.
There is more info on the release below and we’ll be in touch as more information becomes available.
News release – November 25, 2022
Canadians who are facing illness or injury need to feel confident that they are supported and that their jobs are protected as they recover. That is why the Government of Canada is taking action to improve Employment Insurance (EI) sickness benefits.
Having a workplace holiday party this year?
As we approach the end of November, the end of the pandemic and with so many wanting teams back together in real life, the idea of holiday parties comes up. I saw this note from E2R ( an HR consulting firm) and thought a good reminder of items employers should consider.
The holiday season is just around the corner – yes, already! For many employers, this means gearing up for workplace holiday festivities, perhaps for the first time in-person since the breakout of COVID-19.
To make sure a holiday party is a big success, all employers, regardless of size, should consider their responsibility to provide a safe environment for employees and guests. This means ensuring that proper plans are in place so that employees know what is expected of them, such as highlighting specific workplace policies related to conduct (including ‘off-duty” conduct), drugs and alcohol, and harassment.
Employer Liability
While holiday parties are meant to be fun and enjoyed by all, they can also lead to significant liability for employers.
As a general principle, an employer is liable for the actions of its employees at the workplace. But what exactly is the “workplace” you ask? Well, the definition of workplace has expanded to include situations where employees are off-site and off-duty. Courts have found that employers may be held responsible for negative consequences and damages flowing from their work-related social gatherings, including holiday parties.
Impairment
It’s the time of year when drinks are flowing – but did you know that employers may be liable for employee incidents related to overconsumption of alcohol? For example, if an intoxicated employee were to drive home following a holiday party, the employer may face liability for any related injury to the employee or to an innocent third party. To minimize this risk, it is a good idea to consider limiting the quantity of alcohol, to arrange safe transportation options for employees to get home (taxi chits for example), and to ensure that the staff is adequately trained in spotting impairment.
Issues of impairment may also arise from substances other than alcohol, such as recreational cannabis. Employers should review their policies regarding cannabis use and set clear expectations at any workplace function.
Misconduct
Employers have a legal responsibility to ensure that employees are provided a safe and harassment-free environment at any workplace social function. If an employee crosses the boundary of inappropriate conduct by engaging in harassing, discriminatory or violent behaviour, the employer could be liable for those actions.
To minimize this risk, employers should ensure employees are familiar with respect in the workplace policies and reporting procedures. Employers should also be cautious of any games, activities, or decorations that may encourage inappropriate behaviour (e.g. hanging mistletoe). Employees who misbehave should be immediately, and safely, removed from the function.
COVID-19
As we know, the risk of COVID-19 and related health and safety requirements are ever-changing. Employers should be aware of the most recent health and safety requirements and make the necessary amendments to any holiday party plans to ensure the celebration is compliant with up-to-date COVID-19 regulations and your own internal procedures for ensuring health and safety.
Take Away
All this talk of liability, while not exactly merry, certainly does not mean that employers should stop hosting holiday parties! However, employers must be aware of the safety and legal responsibilities associated with workplace events and be proactive in managing risks. Our e2r™ Advisors are happy to assist you with risk management, relevant policies, or related concerns.
Here’s to a safe and healthy (and fun!) holiday party! Cheers!
CRA Updates CPP Maximums for 2023
The maximum pensionable earnings under the Canada Pension Plan (CPP) for 2023 will be $66,600—up from $64,900 in 2022. The new ceiling was calculated according to a CPP legislated formula that takes into account the growth in average weekly wages and salaries in Canada.
Contributors who earn more than $66,600 in 2023 are not required or permitted to make additional contributions to the CPP.
The basic exemption amount for 2023 remains at $3,500.
The employee and employer contribution rates for 2023 will be 5.95%—up from 5.70% in 2022, and the self-employed contribution rate will be 11.90%—up from 11.40% in 2022. The increase in contribution rate is due to the continued implementation of the CPP enhancement.
The maximum employer and employee contribution to the plan for 2023 will be $3,754.45 each and the maximum self-employed contribution will be $7,508.90. The maximums in 2022 were $3,499.80 and $6,999.60 respectively.
Another Ontario termination clause bites the dust
I’ve spent the last few weeks running and speaking at the CGIB educational events in Toronto, Calgary and Vancouver. We’ve had employment lawyers speak at each of them on a number of topics employers face when it comes to benefits and how they handle them at termination. The one resounding theme that arose was the need for current up to date employment contracts.
Every employee /employer relationship has an employment contract, it’s only a matter if it is written or oral. Written is always preferred as it clearly states how the parties enter into the contract (pay, vacation, etc.) and how they exit (termination pay, benefit extension (or not) etc.). This can prevent issues when the employment comes to an end.
In Ontario, the courts have ruled that having items like “non-compete clauses” in your contract can render the entire document invalid. This can cause issues if you terminated a 20 year employee (as en example) who had a written employment contract that had both a non-compete and a termination clause that said that the employee would be paid 6 months of base pay only on being severed. The non-compete clause would nullify the remainder of the contract leaving the employer responsible to the common law period (as much as 2 years) and could also include items like bonuses, benefits etc. This can be corrected by reviewing these contracts with an employment lawyer and ensure they are up to date and enforceable.
The article below provides an example of how things go wrong even when written with the best intent. Please consult an employment lawyer for advice to create enforceable contracts that are specific to your business and particular situation.
“Termination clauses can no longer be seen or read in an isolation of each other – they have to be read as a whole, so employers have to be very careful in reviewing their employment agreement templates from beginning to end, and ensuring that no provision of the agreement, whether it deals with termination or not, infringes on employees’ statutory rights to notice, severance pay, and benefits continuation under the under [employment standards legislation].”
Please read if your plan offers Long Term Disability (LTD) coverage
The Government of Canada is working to modernize the Employment Insurance (EI) program. In the 2022 federal budget they confirmed the extension of Employment Insurance sickness benefits from 15 to 26 weeks.
This change is anticipated to take place later this year (yes, not much time) but we are still missing many details, and until we get them we are unable to provide the proper solution for our clients.
The effective date and specific details are expected in the next month or so, but plan sponsors will probably need to realign LTD plans to the 26-week elimination period (from the current 15, 16 or 17 weeks). This will help avoid the payment of disability and EI benefits at the same time, where a member may be required to refund EI for benefits overpaid (for collecting from both at the same time).
Once the government settles on the details, we’ll be reaching out to provide options. As it stands, I am expecting that most plans will be amended to delay the start of LTD benefits to 6 months (26 weeks) and will likely see a small drop in rates (maybe 5%).
Stay tuned for updates.
Legal case (a warning)
This is a cautionary tale with a BAD ending. Terminations are never easy, but getting them wrong can be very costly which is why we ask clients to reach out BEFORE things take a turn for the worst. On top of that, ensuring that you have Plan Administration Liability Coverage is critical as it, or Employment Practices Liability coverage, can help protect you when things go wrong.
In Pasap v Saskatchewan Indian Gaming Authority and Bear Claw Casino, in a wrongful dismissal action, the Court ordered the employer to pay their former employee $1,216,764.00 in damages on account of the employee’s loss of LTD benefits post termination.