Small Businesses and the AODA: New Requirements as of January 1, 2017

Over the last few years, large Ontario employers have been busy implementing changes to their practices in order to meet new accommodation requirements under the Accessibility of Ontarians with Disabilities Act (AODA). As of January 1, 2017, Ontario employers with fewer than 50 employees must now meet additional obligations with respect to employment standards and information and communications. These new requirements supplement the existing obligations under the Ontario Human Rights Code.

The new employment standards require employers keep their employees informed about policies relating to the support available to employees with disabilities, at all stages of the employment relationship. Employers must notify their employees and the public about the availability of accommodations for job applicants with disabilities. Additionally, employers providing performance management, career development, and advancement opportunities to their employees must take into consideration the accessibility needs and individual accommodation plans of employees with disabilities.  Employers are also required to provide communication supports in accessible formats, and employees with a disability must be provided with individualized workplace emergency response information.

Small and medium sized businesses will be required, upon request, to provide accessible formats and communication supports for any persons with disabilities. These will be required in a timely manner that takes into account the person’s accessibility needs, and at a cost that is no more than the regular cost charged to other persons. Additionally, organizations which are equipped with processes for receiving and responding to feedback will be required to notify the public about the availability of accessible format and communication supports and, upon request, provide them.

These new requirements work to ensure that barriers that hinder their full participation in employment are not only identified, but removed and eventually prevented, with the goal to fully accommodate employees with disabilities by 2025.

Written with the assistance of Kristina Bezprozvannykh, articling student.

Class action against workplace discrimination

In France, employees who suffer from workplace discrimination are entitled to bring claims against their employer. Workplace discrimination is strictly prohibited and is characterized when a person is treated less favorably than another because of his or her origin, sex, marital status, pregnancy, physical appearance, health, disability, sexual orientation, gender identity, age, political opinions, trade union activities, his/her belonging to an ethnic group, or his/her alleged race or religion.

Employees or future employees who have been subjected to discrimination can either take legal action directly or authorize a union to act on their behalf. However, even if a union takes legal action, the employer will automatically and immediately learn the name of the employee concerned. Moreover, such procedure does not permit a demonstration that the discrimination is collective.

In this context, as from 20 November 2016[1], French law has been modified to allow representative trade unions and associations to launch class action suits in order to show that several candidates or employees have been directly or indirectly discriminated against by the same employer. The identities of the discriminated persons remains unknown at the beginning of the procedure.

The purpose of the class action can be either to put an end to the discrimination or to obtain damages (or both).

Before commencing the class action, the trade union or the association must contact the employer and request it to cease the discriminatory situation.

As from such date, the employer :

  • has one month to inform the works council (or, if any, the staff delegates or representative unions within the company) of the request made by the union or association. A dialogue between the employer and the staff representative should lead to a solution in order to stop the discrimination.
  • has six months to stop the discrimination. If no action has been taken at the end of such six-month period, the trade union or association which initiated the class action may commence proceedings before the tribunal.

During the course of the procedure undertaken by the unions or association, the time limit for introducing an individual action is suspended. Therefore, an employee or candidate can decide to take legal action after obtaining the judgement related to the class action in order to obtain compensation for the damages which were not included within the scope of the judgment.

[1] Article L 1134-6 to L 1134-10 of the French Labour Code

Italy’s Supreme Court confirms that dismissals for redundancy to increase profits are legal

In a decision dated December 7, 2016, Italy’s Supreme Court – the Corte di Cassazione – confirmed that the dismissal of an individual employee for redundancy can be legally grounded solely on business-related reasons, such as improving the company’s competitiveness, reducing costs, or increasing profits. The decision was based on the constitutional principle of “freedom of private enterprise.”

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Mining Industry Highlight: Failure to Provide Written Procedures Leads to $55,000 Fine for Employer

Following a Ministry of Labour investigation, a mining company was fined $55,000 on October 26, 2016 after an employee was injured at a mine in Northern Ontario. The employee, an underground mechanic, was replacing an axel on a mining vehicle when an 878-pound tire fell and injured him. Fortunately, three other employees were nearby to lift the tire off the injured employee who was then taken to the hospital.

The legal basis for the fine was section 107.1(1) of Mines and Mining Plants regulation under the Occupational Health and Safety Act which states that “An employer shall establish written procedures for work performed on tire and wheel assemblies.” Section 107.1(2) also requires that “The procedures shall address the hazards associated with the work in a manner that protects the health and safety of workers”. Ultimately, the Ministry of Labour investigation found that the company did not have a written procedure in place regarding the hazards of this type of work and the company pleaded guilty to the regulatory violation. In addition to the $55,000 fine, the court imposed a 25% victim fine surcharge as required by the Provincial Offences Act.

This decision serves as a reminder for employers in the mining sector to ensure that they have written procedures in place generally for hazardous work and specifically for work performed on tires. Employers should also note that the mining regulation requires written procedures for, among other things, activities relating to the installation of ground support at mines (section 67), the movement of bulk material in a pass, chute or storage area (section 84) and work involving trolley lines (section 180(11)).

Employers in the mining industry should also be aware of the additional health and safety requirements which will be coming into force on January 1, 2017. These additions to the Mines and Mining Plants regulation will require employers to conduct a risk assessment to identify, assess and manage hazards and potential hazards that may expose workers to injury or illness. Risk assessments will have to be provided to the joint health and safety committee and reviewed as necessary and at least annually.

 

Recent changes to the law on the dismissal of severely disabled employees

In Germany, as of 1 January 2017, various amendments to the law on severely disabled persons came into force. Of particular importance is a new regulation relating to the dismissal of severely disabled employees.

Until the recent changes came into force, before the dismissal of a severely disabled employee the representative body for severely disabled employees had to be heard in accordance with the relevant provisions of the German Social Code Book IX (SGB IX). However, this was not a prerequisite for the effectiveness of the dismissal and therefore rather irrelevant.

Since the beginning of this year, however, the hearing of the representative body for severely disabled employees is a prerequisite for both the dismissal of a severely disabled employee with due notice and without (section 95 para. 2 sentence 3 SGB IX – new version). This means, that a dismissal without such prior hearing is ineffective.

However, if at the hearing, the representative body for severely disabled employees objects to the intended dismissal, the employer can nevertheless proceed with the dismissal. In such a case, the employee may also not claim further interim employment or the like. The legislator has introduced the hearing obligation rather as a mere formal requirement.

However, many questions relating to this new regulation remain. As a precaution, it should first be assumed that similar conditions apply to the content of the hearing of the representative body for severely disabled employees, as in the case of a works council hearing pursuant to the provisions of section 102 of the German Works Constitution Act – BetrVG. In particular, the reasons for the dismissal should be presented in detail. There is also much to suggest that the deadlines set out in section 102 BetrVG for the statement of the works council could be used as guidance for hearings regarding the dismissal of severely disabled employees.

Moreover, considering the unclear wording of the new law, we recommend that the hearing of the representative body for severely disabled employees should take place before the application to the integration office for the necessary approval of the intended dismissal pursuant to the relevant provisions of the SGB IX.

The new French “right to disconnect”

French law has recently implemented the “right to disconnect” from digital tools, requiring employers to limit employees’ use of digital tools outside of office hours.

The purpose of the new legislation is to protect the employees’ work-life balance and their right to rest periods.

New article L 2242-8 of the French Labour Code provides that the conditions relating to the right to disconnect must be discussed on an annual basis, as from 1st January 2017, in the course of the mandatory negotiations on equality between men and women and quality of working life. Such negotiations will take place between the employer and union representatives.

In the absence of an agreement with unions on the right to disconnect, the law provides that the employer will be required to prepare a charter, after having consulted the works council or the staff representatives. This charter should include provisions related to the implementation of training in order to learn how to use digital tools reasonably.

Although the law provides that its application should only concern companies with at least 50 employees, it appears that such obligation may also apply to companies with at least 10 employees. Therefore, it is recommended that employers begin planning how to apply the right to disconnect in their respective companies.

It is however important to emphasise that the right to disconnect will not completely prevent the employees from using their phone or computer after working hours or during week-ends and holidays. If an employee wishes to use digital tools during his rest period, he will be able to do so. However, the employer has to alert the employees to the existence of the right and implement measures which regulating such use.

The law does not provide a specific sanction for failure of the employer to comply with such obligations. However, if the employer does not comply with the right to disconnect, the employees may raise such breach as grounds upon which to base a claim that the employer has committed a violation of the safety obligation.

Intra-Corporate Transfer Directive implemented in the Netherlands

On November 29, 2016 the Dutch Royal Decree (the Decree) which implements the European Intra-Corporate Transfer Directive (2014/66/EU) (the Directive), came into force. The Directive applies to secondments of non-EU citizens satisfying certain conditions whose main place of residence is outside the EU (Expats) to an EU Member State. The Directive simplifies the admission procedure for Expats (and their families), in order to make the EU more attractive to international businesses. To enhance these international secondments to the EU between affiliated entities, a special ‘Intra-Company Transfer’ permit (ICT-permit) has been introduced. The ICT-permit allows the individual to work in the EU for a maximum period of three years.

Requirements to obtain an ICT-permit in the Netherlands

The new ICT-permit will apply to applicants who meet the following conditions:

  • The Decree applies to Expats with a position as manager, specialist or trainee (as defined in article 3 of the Directive);
  • The Expat must have a valid employment agreement with a company outside the EUand must have been employed by that company for at least three continuous months before the transfer to the Netherlands;
  • The ‘host-entity’ in the Netherlands must be part of the same enterprise or group of enterprises as the formal employing entity of the Expat;
  • The Expat must possess the skill and experience required by the host-entity or, where the Expat is a trainee, a Masters degree;
  • In principle, there are no minimum salary requirements. However, as the Directive intends to avoid unfair competition, the Expat should receive remuneration in line with market standards;
  • The host-entity in the Netherlands does not have to be registered as a ‘recognised sponsor’ for highly skilled workers. However, if the company is so recognised then an even more simplified admission procedure applies.

Duration of the ICT-permit

The ICT-permit can be granted for a maximum period of three years for managers and specialists. For trainees, the maximum period is one year. At the end of the secondment period, the Expat must relocate to his home country for at least six months in order to be able to re-apply for an ICT-permit in the Netherlands.

Mobility within the EU

The Directive also aims to facilitate mobility of Expats within the EU: ‘Intra-EU mobility’. Distinction is made between ‘short-term mobility’ and ‘long-term mobility’. Short-term mobility means that an Expat can stay and work in a second EU-member state for a maximum period of 90 days in any 180-day period. Depending on the legislation of the second EU-member state, the host-entity may have notify both EU-member states that the Expat intends to work in the second EU-member state.

If the Expat stays in a second host-country for a period of longer than 90-days in any 180-day period, the rules for long-term mobility apply. Depending on the legislation of the second EU-member state, a notification of this period of work may have to be made or a formal application for long-term mobility will need to be submitted.

In the Netherlands, notification should be made at the Employee Insurance Agency (UWV).

Relation to the ‘highly skilled migrant scheme’

The target group of the Directive shows similarities with the Dutch ‘highly skilled migrant scheme’ which applies to highly skilled foreign employees working in the Netherlands. If the Expat meets the requirements of the ICT-permit, he cannot apply for a ‘highly skilled migrant-permit’ and his application must be resubmitted under the ICT-permit scheme. If the parties involved consider that it is more desirable for the employee to obtain a highly skilled migrant-permit, then the Expat will need to enter into an employment contract with the host-entity rather than remaining employed by the foreign company..

Conclusion

Do you work at an international company that is (planning on) seconding employees to the Netherlands? Please feel free to contact Maartje Govaert, Thomas Timmermans or Saskia de Schutter for any advice or further questions in respect of the above.

Reduction in the Employment Insurance Waiting Period and the Potential Implications for Employers

In March 2016 the federal government announced changes to Employment Insurance (EI) rules in Canada.  Effective January 1, 2017, the EI waiting period has been reduced from two (2) weeks to one (1) week by way of amendments to s. 208 of the Employment Insurance Act, SC 1996, c 23.  The EI waiting period change will only impact benefit periods starting on or after January 1, 2017. The reduction of the waiting period applies to all types of EI benefits – regular, sickness, maternity, parental, compassionate care, parents of critically ill children, and special benefits for self-employed individuals.

While claimants are still entitled to the same maximum number of weeks of EI benefits, the waiting period may have indirect implications for employees and employers who have top-up arrangements that supplement EI. Reducing the waiting period shifts forward the period during which EI benefits are payable. In some cases, employer payments that supplement EI maternity and parental benefits may be aligned to the two-week waiting period and the reduction of the waiting period may have impacts for employees or employers.

The federal government has taken steps to mitigate the potential impact on employers’ and employees’ plans.  On October 15, 2016, draft amendments to the Employment Insurance Regulations, SOR 96-332 (EI Reg), were published addressing how the shorter EI period will impact supplement unemployment benefit (SUB) plans and maternity/parental leave top-up plans.  Also, how the shorter waiting period will impact sick leave or short-term disability (STD) plans that qualify for the EI Premium Reduction Program (PRP).  These amendments are not, as of yet, in force, and do not address the immediate impact on employers that must administer such benefits to employees in light of the reduced waiting period.

Until the amendments to the EI Reg come into force, an employer should be aware of and consider the following key implications to its business as a result of the reduced waiting period.

Key implications and considerations for employers:

  • SUB and Top-Up Plans – Employers offering of SUB type plans (including EI top-up, maternity leave, leave for care of a child, and compassionate care leave) may see a reduction in plan costs as employees will be able to access EI benefits earlier in their leave period. SUB plan designs may need to be modified to ensure that plan recipients are provided with the intended level of income support during the benefits period.
  • Long term disability (LTD) plans – Employers may consider adjusting its LTD elimination period to coordinate with changes to other programs.
  • EI PRP –  The EI PRP permits employers to use a lower EI premium rate when the employer provides a STD or sick leave plan that meets specific requirements set out in the EI Reg.  Currently, a STD or sick leave plan that qualifies for the EI PRP can include an elimination period of up to 14 days before STD or sick leave benefits become payable. This 14-day elimination period corresponded with the two-week waiting period. The EI Reg will be amended to provide that the maximum elimination period is seven (7) days, in order to align with the new one (1) week waiting period for EI benefits. As a result, employers with STD or sick leave plans that have an elimination period of more than seven (7) days will no longer qualify for the PRP rebate.   However, the proposed amendments to the EI Reg include a transitional provision to provide existing plans participating in the PRP with a four year period to update their plans while continuing to qualify for participation in the PRP. This transitional provision will apply to plans that are in place before the reduction of the waiting period, and expires on January 3, 2021.  However, going forward, employers with plans currently registered with the EI PRP will have to reduce the waiting period from two (2) weeks’ to one (1) week in order to preserve any EI premium reduction it receives.

Overall, employers should begin steps to review its plans and programs to assess the impact of the reduced EI waiting period, and to determine how to administer such plans during the transitional period.

Written with the assistance of Rebecca Silverberg, articling student.

Legislation proposing to add “genetic characteristics” to prohibited grounds of discrimination

Recently, a private member’s bill which proposes to add “genetic characteristics” to the list of prohibited grounds of discrimination under the Ontario Human Rights Code went through its second reading at Queen’s Park and was referred to the committee stage. From an employment law point of view, if this bill is passed into law, the right to equal treatment without discrimination based on genetic characteristics would apply in employment relationships.

One of the driving forces behind this bill is the concern that genetic characteristics, if they become known by someone such as an employer, could be used to discriminate against an individual. The Ontario Human Rights Commission expressed a similar concern with regard to perceived disabilities which “could include subjecting a person to unequal treatment because of a belief that the person, due to genetic characteristics, is likely to or will develop a disability in the future.”

The Canadian Coalition for Genetic Fairness, a public interest group, has also advocated for enhanced protection against genetic discrimination under Canadian law. They argue that “[i]t is unfair to use genetic information to determine which individuals will be employed or insured. To assume that someone’s DNA will result in a disease or disorder is faulty, misleading and speculative.”

To a certain extent, this concern appears to have been addressed in a proposed addition to the Ontario Human Rights Code which would ensure the right to equal treatment without discrimination even if “a person refuses to undergo a genetic test or refuses to disclose, or authorize the disclosure of, the results of a genetic test”.

While these proposed amendments to the Ontario Human Rights Code are still several steps away from being proclaimed into law, if passed, they would certainly have an impact on the intersection of employment law and human rights legislation. If passed, the extent to which employers collect and use genetic information obtained from medical evaluations will become particularly important and policies will need to be carefully evaluated to ensure genetic information is not used in a discriminatory manner.

Written with the assistance of Mark Bisseger, articling student.

Twelve things to know about rights that workers have to rest breaks in South Africa

This article was written by Verushka Reddy, a Director and Erwyn Durman, a Candidate Attorney at Norton Rose Fulbright South Africa

Employers and employees should be aware of the following twelve main principles in relation to rest breaks at work.

       Rest Breaks

  1. Rest breaks are regulated by the Basic Conditions of Employment Act, 1997. The Act provides for three types: daily rest breaks, weekly rest breaks and meal breaks.
  2. These rest breaks must be provided to all employees except senior managerial employees, sales staff who travel to customers and regulate their own hours, and employees who work less than 24 hours per month for an employer.

     Meal intervals

  3. An employee must have a meal interval of one continuous hour, for which they are not paid, after five hours of work.
  4. An employer may require or permit an employee to perform a duty during a meal interval, only if that duty cannot be left unattended or performed by another employee.
  5. If an employee takes a meal interval in excess of 75 minutes the employee should be paid, for the period that exceeds 75 minutes, unless the employee lives on the premises. The purpose of this requirement is to prevent employers from taking advantage of employees by requiring them to take an extended work rest break during the course of a shift or work day, but not paying them for this ‘time off’. Similarly, if an employee is required to be on standby during the meal interval or a part of it, the employee must be paid for the duration of the standby period.
  6. An employer and employee can enter into a written agreement to reduce the meal interval to a minimum of 30 minutes. By written agreement the meal interval can be dispensed with if an employee works less than six hours a day.

    Daily rest periods

  7. Employees are entitled to a daily rest break of a minimum of 12 consecutive hours between the end of the day’s work and the start of the next day’s work.
  8. By written agreement, daily rest breaks may be reduced to no less than 10 hours if the employee lives on the premises and has a meal interval for longer than three hours.
  9. Smoke breaks are not provided for in labour law. Smoking in the workplace is regulated by the Tobacco Products Control Regulations which places a duty on employers to protect non-smoking employees by ensuring that there is a designated smoking area. Smoke breaks do not have to be allowed.
  10. If an employer does allow for smoke breaks outside of the designated work rest break, the employer has a discretion to manage the duration and frequency of the smoke breaks. The regulations provide that an employer must have a written policy on smoking in the workplace.

    Weekly rest periods

  11. Employees are also allowed a weekly rest break of at least 36 consecutive hours, which includes a Sunday unless otherwise agreed.
  12. A weekly rest break may be reduced by written agreement to a minimum of 60 consecutive hours per fortnight, and can be reduced by up to eight hours in any week if the rest break the in following week is extended proportionately.

These twelve principles apply to most industries. An example of an industry to which the above provisions do not apply, is the air service industry.  The duty periods, rest periods and days free for these employees are regulated by the South African Civil Aviation Technical Standards 121.

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