Canadian Employment Law Today

CREDIT: TASHATUVANGO/SHUTTERSTOCK • family caregiver leave • critically ill child care leave • crime-related child death or disappearance leave • organ donor leave. Many employees are eligible for these statutory leaves of absence, although the entitlement may depend on the number of employees the employer regularly employs. ere are also exceptions, such as for pro - fessionals such as lawyers or doctors, if their absence would pose the risk of professional misconduct or neglect of professional duty. In many cases, employers don't want to reinstate employees who have taken a pro - tected leave to the same position, particu- larly when a replacement outperforms an incumbent, or when the returning employee requests a modified work schedule. If an employer fails to meet its legal obligation to reinstate, it could expose itself to legal risks, such as constructive dismissal or human rights claims. at doesn't mean that employers' hands are tied when circumstances change and a workplace readjustment is required. When a replacement outperforms the incumbent, for example, the employer should consider moving the replacement to another role at the organization. Employers grappling with a schedule modification request should ask the employee to formalize that request in writing and attempt to arrive at an arrange - ment, to the extent possible. is is particu- larly the case when the request relates to a human rights ground for which the em- ployee may be entitled to accommodation. What's important to remember is that in a case where an incumbent returns to work but performs poorly, subsequent discipline must not be tied to the protected leave. Do - ing so could expose the organization to re- prisal complaints and, in some cases, even human rights challenges. Termination pay standards. Termina- tion pay in Ontario ranges from one week for periods of employment from three months to one year, to eight weeks for ser- vice of eight years or more. is is in addi- tion to any potential severance pay, which is paid to employees who have more than five years of service with an organization that has a payroll of $2.5 million or more. Sever - ance pay is an additional one week of pay per year of service to a maximum of 26 weeks. A common misconception is that an employer is only required to pay the ESA minimum upon termination without cause. Unless an employer has entered into a writ - ten agreement with the employee to limit termination pay to the ESA minimums, the employer is required to pay the employee common law reasonable notice. Common law reasonable notice is not calculated using a formula, but rather is based on a number of qualitative factors that are intended to estimate the amount of time it would take that particular employee to re-employ. It al - most always amounts to an entitlement that is greater than the ESA minimums, and can be very difficult to predict. An employer can easily mitigate the risks and contain liability associated with higher, unpredictable termination pay entitlements by entering into employment agreements with their employees that limit termination pay to, minimally, ESA entitlements. Canadian HR Reporter, a Thomson Reuters business 2016 April 13, 2016 | Canadian Employment Law Today ABOUT THE AUTHOR SAFINA LAKHANI Safina Lakhani is a lawyer with Williams HR Law in Markham, Ont., practicing management- side employment, labour, and human rights law. She can be reached at (905) 205-0496, ext. 222, or slakhani@williamshrlaw.com.

• Cover