Archive for February, 2011

Procrastination not good for compliance

Advance preparation a wise strategy when new legislation is coming down the pipe

By Jeffrey R. Smith (

HR departments have to deal with many things to ensure organizations run as smoothly as possible. It’s a balancing act between the organization’s bottom line, employee engagement and compliance with employment and labour law.

This keeps everybody busy and could make it easy to put something on the backburner if it’s not imminent, like new legislation that might be coming into effect down the line. But failure to pay attention could leave an employer unprepared and in trouble when the time to comply comes around.

The province of Ontario, for example, has developed new legislation that will significantly affect businesses when it comes into force next year. The Accessibility for Ontarians with Disabilities Act (AODA) is intended to remove barriers keeping people with disabilities from fully participating in society and will require business to make adjustments to their physical premises and implement specific training for employees.

It will come into effect in various stages over the next few years, but the first stage, dealing with customer service, comes into force on Jan. 1, 2012, for private-sector firms. That may seem like some time away, but for those businesses affected — those operating in Ontario and those outside of Ontario who serve Ontarians — who don’t start preparing soon, it will be upon them pretty quickly.

Once AODA is in force, business will have to comply and if they haven’t made advance preparations for it, they will end up scrambling. So while it may be difficult for affected businesses to find the priority to ramp up preparations for compliance with the AODA right now, failure to do so might come back to haunt them.

Past experience shows businesses can get caught unprepared when new compliance requirements come into force. Ontario’s new workplace violence legislation, known as Bill 168, came into force last June, but many employers still aren’t compliant despite the fact there was plenty of advance notice. This could lead to fines and investigations of those employers until they’re found to be compliant.

The buzz is other jurisdictions in Canada are looking at implementing legislation similar to AODA. Manitoba, for one, has already gotten the ball rolling. HR people are usually the key to getting businesses and their staff in line with legislation like AODA, so it’s crucial for them to get the ball rolling on compliance before it’s too late.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit

Bringing contractors into the health and safety fold

Recent court decision means employers must include more than just their employees in health and safety planning

By Jeffrey R. Smith (

The health and safety of employees is an important consideration for employers — and it’s a win-win that benefits both workers and the employer.

But different types and sizes of employers can find some aspects of employee health and safety difficult to maintain and, if a recent Ontario court decision is any indication, it’s not going to get any easier.

Last month, the Ontario Court of Appeal released a decision that could impact small employers that use independent contractors who work off-site. The decision related to a company that distributes materials like sand and gravel to various customers. The company itself employed only 11 people and most of its distribution work was contracted out to independent truck drivers who owned and operated their own vehicles.

Since the company had such a small number of employees in its office, it was able to look after its employees’ health and safety issues directly without the formality of a joint health and safety committee (JHSC). The Ontario Occupational Health and Safety Act only required JHSCs for employers with 20 or more employees.

However, after an accident that seriously injured an independent truck driver while he was working for the company, the Ontario Ministry of Labour found the independent truck drivers — of which the company used between 30 and 140 at any one time — should be considered employees for the purposes of the JHSC requirement. After the case went through a couple of levels of appeals, the Ontario Court of Appeal agreed with the ministry.

On the surface, it seems like this decision could be a positive for safety — the independent contractors would be involved in the company’s health and safety committee and its initiatives.

But it could lead to logistical nightmares for the company and other similar employers. Independent contractors come and go and often, as in this case, their jobs take them to various locations away from the office. Is it too much to ask an employer to maintain a JHSC when many of the representatives work outside of the office and only actually work for the company on an irregular basis?

There likely would be an additional administrative burden on a company which may not be able to handle it. The company in this case had only 11 employees in its office, but was expected to organize a committee for as many as 150-plus people.

In its decision, the Ontario Court of Appeal acknowledged it would be difficult to maintain a JHSC when members are independent contractors who are on their own schedules and usually off-site. It seemed to shrug this off by pointing to the fact the company in this case had already done so after the initial ministry order. However, it may not be so doable for other companies in similar circumstances.

It’s reasonable for businesses to advise contractors doing work for them on proper health and safety practices and to take reasonable measures to ensure the safety of the work being assigned to those contractors. But is it practical to include them on committees and be involved in making company policies? How much of a burden should companies have to take on for the health and safety of independent contractors and how much of it should be the contractors’ responsibility?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit

Taking a snow day

Is there an obligation to protect employees from dangerous commuting in severe weather?

By Jeffrey R. Smith (

Over the course of the long winter, Canadians get their fair share of big storms with bad conditions for travelling. When the weather forecasters warn of a big winter storm with snow, freezing rain and other various forms of punishment, it’s common for workers to wonder if they’ll get a “snow day” — if the weather’s that bad, then perhaps organizations will be forced to shut down operations for the day.

The decision to close and tell employees to stay home in inclement weather rests with the employer, which has to weigh the disadvantages of losing a day’s work against forcing workers to trudge through a long, slow commute in slippery conditions.

But how far does this responsibility go, both morally and legally?

A man walks down the middle of Portland street during a blizzard in downtown Dartmouth, N.S. When conditions are poor, should employers shut down for the day? (Photo: Paul Darrow/Reuters)

A winter storm can create conditions that are very dangerous to drive in — slippery roads, poor visibility, cold weather — as well as many potential delays. If these conditions are really bad, should the employer be obliged to close its office and keep its employees safe at home?

Employers have a legal duty to protect employees from harm in the workplace and this includes work-related functions outside the normal workplace. Could this duty extend to the commute in dangerous conditions? Would there (or should there) be liability if the employer stayed open in severe conditions and an employee who couldn’t afford to take the day off was hurt or killed in an accident caused by the conditions? What if police and weather forecasters had warned people to stay home unless absolutely necessary, as sometimes happens?

On one hand, severe weather is a fact of life in winter in Canada and one could argue we just have to adapt and get on with things. But, on the other hand, one could say that fact of life should mean we have to accept some days will not be good for travelling and employers should plan for a few days every winter to have the office closed when a severe storm sweeps in.

In the end, that could end up saving frustration, employee disenchantment and maybe even lives.

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information, visit

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