Canadian Employment Law Today

May 29, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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with Stuart Rudner Ask an Expert RUDNER LAW TORONTO 2 | May 29, 2019 Have a question for our experts? Email Canadian HR Reporter, 2019 Answer: Worker's compensation provides employees the ability to obtain financial compensation for a workplace injury or disease, without having to pursue legal ac- tion how they were injured or who caused the injury. In exchange for this benefit, workers are usually limited from pursuing their employers. In Ontario, workers compensation is gov- erned by the Workplace Safety and Insur- ance Act (the Act). e Act provides some guidance for when a worker may pursue le- gal action with respect to a workplace injury. e Act states: • that a worker who is employed by a Sched- ule One employer is not entitled to pur- sue legal action against any Schedule One employer or a director, executive officer or a worker employed by a Schedule One employer, for any workplace injury or dis- ease. • that a worker who is employed by a Sched- ule Two employer is not entitled to pursue legal action against the worker's Schedule Two employer or a director, executive of- ficer or a worker employed by the worker's Schedule Two employer, for any work- place injury or disease. In some circumstances, a worker may have the option to pursue benefits under the Act or commence an action against the at-fault party or parties in respect of the injuries. If the worker elects to pursue benefits under the Act, the worker forfeits her right to pursue legal action against the employer and/or any at-fault party regard- ing the same injury. Generally speaking, if you choose to claim worker's compensation you forfeit the right to pursue any other person for the injuries resulting from the workplace incident. However, an employee whose claim has been denied because her employer's busi- ness activity is not required by law to be registered with the Workplace Safety and Insurance Board (WSIB) and the employ- er has not applied for voluntary coverage through the WSIB, may be able to pursue a legal action relating to the workplace injury. Ask an Expert A workers' compensation claim forfeits other legal action Employers are required to assess accommodation WEBINARS Interested in learning more about employment law issues directly from the experts? Check out the Canada Professional Development Centre's live and on-demand webinars discussing topics such as pay equity audits, marijuana in the workplace, and dealing with sexual harassment in the #MeToo era. To view the webinar catalogue, visit Sick days and statutory leave Question: If an Ontario employer offers unpaid sick days and an employee uses all of them, is the employee entitled to statutory personal emergency leave in addition to those days? Answer: e short answer to this ques- tion is no, as personal emergency leave was scrapped by Bill 47. By way of background, Bill 148, which came into force at the begin- ning of 2018, provided ten days of Personal Emergency Leave each year to all employees, the first two of which had to be paid. Howev- er, the current government recently passed Bill 47, which replaced that entitlement with eight days, of various types, that are unpaid. When dealing with an employee's re- quest for sick leave, employers should be mindful of their duty to accommodate. In Ontario, employers are required to accom- modate individuals to the point of undue hardship where the need for accommoda- tion relates to a ground protected by human rights legislation. is includes disability, marital status and family status (including childcare and eldercare obligations). Employers should never dismiss an em- ployees' request for accommodation out of hand. Instead, an employer is required to assess whether there is a legitimate need for accommodation. In order to do this, the employee is required to provide suf- ficient information. If it is determined that the employee should be accommodated, the employer must make a legitimate effort to assess whether accommodation is possible, bearing in mind that some hardship is ex- pected when accommodation is required. If, however, the employer can show that accom- modation would result in "undue hardship," then it is not required to accommodate. Employers should also remember that dismissal for innocent (or non-culpable) absenteeism is possible but difficult, and should certainly not be a first resort. Ab- sences beyond what is provided for in a policy are not automatic grounds for dis- missal, and employers that dismiss the em- ployee in such circumstances do so at their own risk. At the very least, the employer should speak with the employee, assess any need for accommodation, warn the em- ployee of concerns regarding attendance if such concerns are warranted, and allow the employee an opportunity to improve. Stuart Rudner is the founder of Rud- ner Law, an employment law firm in Markham, Ont. He is the author of You're Fired: Just Cause for Dismissal in Cana- da published by omson Reuters Can- ada. He can be reached at stuart@rud- or (416) 864-8500. is column was written with the assistance of Anique Dublin, a law clerk with Rudner Law. Legal action following denial of workers' compensation claim Question: If an employee makes a workers' compensation claim for an injury but is denied, can the employee then pursue legal action related to the injury?

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