Clear Path Blog

On July 15^th 2011 the WSIB amended a board policy extending the NEER window to 4 years. The purpose is to improve return to work outcomes, overall cost reductions and premiums for employers.

What does this mean for you? Claim years will now be subject to 4 years of reviews and potential surcharges.  Specifically, claims that have occurred in 2008 will now be appearing on your September 2012 NEER statement.  In the previous scheme a 2008 claim would have ceased to impact employers as of September 30, 2011 in the 3 year window.  Ultimately any active claims in the 2008 claim year (claims receiving benefits as of January 1, 2012), could adversely affect your NEER review potentially significantly increase your WSIB costs in 2012. This new policy requires greater involvement and accountability on part of the original employer to foster a successful return to work for the injured worker or risk greater costs in a longer window.  In light of the new window - what should you do?

 How do I minimize the impact of the 4 year NEER window?

We recommend these 6 principles to minimize the impact of the 4 year NEER window.

1. Develop, implement and adhere to comprehensive return to work policies
2. Review functional abilities of injured workers to determine possibilities for return to work as early as possible and as often as necessary
3. Communicate regularly with the WSIB regarding active claims
4. Medically monitor and manage all WSIB claims using experienced medical professionals
5. Consider appealing adverse decisions
6. Continue to request SIEF on claims  

Clear Path can help…

Clear Path has a particular specialty in cost-effective WSIB claims management, return-to-work (RTW) strategies and acquiring SIEF cost relief. It can be challenging dealing with the government and orchestrating an effective return to work plan.

We believe claims management is a collaborative process which assesses, coordinates, monitors and implements the options and services required to promote timely, safe return to work programs and quick resolution of WSIB claims.

Clear Path offers a complimentary and confidential review of your most recent NEER statement by our WSIB claims specialists (a $250 value!).

Our experts will forecast your costs for this year and identify areas of potential savings. You have nothing to lose and there is absolutely no obligation to utilize our services further.

Fax your most recent NEER statement today to (519) 624-0860 for a complimentary review.

How Prepared Is Your Business for an Emergency?

May marks “Emergency Preparedness Month” in Canada. This annual event is meant to raise awareness of having an emergency safety plan ready and to highlight areas of risk.

It should also prompt business owners to consider what they would do if faced with an unexpected event - whether it is a violent situation or a catastrophic event like a natural disaster that shuts down your business. You may have established a disaster recovery plan for your business and its assets– including contacting vendors, ensuring inventories are not lost, and locating alternative locations to do business. But have you considered your most important asset?

Ensure you have a plan for your “Human Capital”

Many businesses fail to create a plan for their most important asset – their human capital. What should your employees do in such a situation? How will you know they are safe? Who should they contact? What is your chain of command? How will you distribute information to them? It is important to have a written plan (ready to be executed at any time) on exactly what you expect from your employees for at least 3 days.

The Ontario government has some tips on helping you prepare for an emergency situation at work:

·         Step 1: Learn About Hazards at Work

·         Step 2: Learn How You Will Be Informed Of an Emergency

·         Step 3: Workplace Emergency Plan

·         Step 4: Develop a Communication Plan

·         Step 5: First-Aid/CPR Training For Staff

·         Step 6: Prepare a Workplace Emergency Survival Kit

·         Step 7: Practice and Maintain Your Plan Kit

·         Step 8: Learn How to “Evacuate”

·         Step 9: Learn How to “Shelter-In-Place”

·         Step 10: Consider any Special Needs

More details can be found at http://www.emergencymanagementontario.ca/english/prepare/atwork/atwork.html.

What can Clear Path do for you?

Clear Path can help you create an emergency preparedness plan for your people. In addition, other areas where Clear Path can help you pro-actively manage some other human capital risks, include:

• Ensuring your business is compliant with Bill 168 legislation (Workplace Violence & Harassment)
• Developing and implementing Health & Safety policies & procedures
• Training your staff on how to perform an effective accident investigation
• Implement strategies to retain your “key” employees and develop succession plans for all
• Serve as an "on-demand" resource in the event of a MOL visit or other similar situations

Intro to Health & Safety for Small Business Owners Learning Session:

You are invited to attend this informative half-day session will help small business owners create a "culture of safety" within their company. Topics for discussion will include:

• What is the Occupational Health & Safety Act (OHSA)?
• What is meant by due diligence?
• Internal Responsibility System (IRS) - what does it mean and why does it matter?
• The worker's rights, role and responsibilities
• Work refusal rules under Bill C-45 and Bill 168
• The role of the Ministry of Labour
• New obligations for the employer under Bill 168 (Workplace Violence & Harassment)
• How to identify specific risks in your workplace
• How being proactive can help you avoid a WSIB Workwell Audit

Next steps:

In the meantime, if you have any questions or would like to book a complimentary one hour consultation with certified HR professional Anna Aceto-Guerin, don’t hesitate to contact us at (519) 624-0800 or by email at anna@clearpathemployer.com. Take a look at an example Emergency Preparedness in the Workplace Checklist by clicking here.

In 2005, the Ontario government passed the Accessibility for Ontarians with Disabilities Act (AODA) with the goal of making the province fully accessible for people with disabilties by 2025. This Act will eventually bring significant changes to various aspects of our society, including new rules for buildings and physical structures, employment, transportation, and information & communication.

These changes will be implemented through a series of five "standards," each covering a different area and with a different timeline. Only one of the standards, the AODA Customer Service Standard, has been passed to date and is the subject of this blog entry.

As for the other standards, the Ministry of Community and Social Services recently released a draft of regulations to combine 3 of the 4 remaining standards into one piece of legislation (Integrated Accessibility Standards). The Built Environment standard (changes to physical structures) remains in development and is particularly challenged by concerns over changes to historical buildings.

AODA Customer Service Standard:

As mentioned, the first of these standards (and perhaps the least onerous) is the AODA Customer Service Standard, which requires all Ontario businesses to provide their goods and services in a way that is accessible to all Ontarians. The Act does not require that goods and services themselves be accessible (that may be covered in future standards), only the way in which they are provided. It also gives employers freedom to determine the best accessibility options for their own workplace. The standard really is a "nudge" (rather than a "big stick") to encourage businesses to implement fairly modest changes, many of which may open themselves up to receiving more business from an aging society where at least 15% of the population have with some kind of disability.

The standard applies to all Ontario businesses with at least 1 employee and came into effect for public sector (government) organizations on January 1, 2010. For private businesses and not-for-profits, the deadline for compliance is January 1, 2012.

Businesses must comply with 11 regulations covering a number of areas, but all of them emphasize the core principles of dignity, independence, integration, and equal opportunity. To read about the specific requirements, please click here.

AODA: Positive aspects for employers 

Ability for employers to comply:

• For many employers, relatively modest measures are all that is necessary for compliance (this is not to say that they don't need to take the necessary steps listed in the regulations).
• The Act states that persons with disabilities may not dictate what steps the business takes to be more accessible, only that reasonable options must be available. For example, a person with vision issues may request a Braille version of company literature, but if the business is not able to provide that format, it can offer alternatives such as providing in a large print format, electronic versions that may be read by text-reading software on a home computer, or simply have an employee read the document to the customer.

• Fines for non-compliance are fairly modest ($200 - $15,000), unless the business is in breach of a government order, when much more significant penalties apply. However, providers must be aware that submitting a claim through Ontario's Human Rights Tribunal continue to be an option for any dissatisfied customer.

Support Resources:

• Unlike the recent Bill 168 legislation (Workplace Violence & Harassment), the government has given businesses plenty of time to comply and provided a signficant amount of documentation (guides, policy examples, surveys, etc.) for employers to use.

• Click here to access some of the government-created support documents.

Business Impact:

• Implementing more accessible customer service practices may increase business opportunities, particularly since 15% of the population have some type of disability.

• The Act does not require businesses to provide free services (i.e. admission fees) to support workers, although the business may choose to do so.

Autonomy:

• Service providers are free to determine what accessibility options make the most sense in their particular business. Ideally, communicating with a person with a disability on what would be the best way to service them will result in the best solution. However, the Act does not mandate absolute requirements, such as making all doors and aisles wheelchair accessible.
• Providers can set up their own Feedback Processes to get feedback from those with disabilties, which may be integrated into existing feedback mechanisms.

• Self-reporting of compliance through annual "Accessibility Reports" for businesses with at least 20 employees.

AODA: Challenges employers may face

Impact on your bottom line:

• Costs for training staff, modifying structures, establishing policies/procedures, and purchasing any assistive devices for internal use (i.e. scooter with a basket) are to be absorbed by the employer.

• Providing sufficient time for a customer who needs significant extra time to complete a transaction with you without rushing them (in order to comply with principle of "Dignity") may force provider to hire additional staff or have other customers dissatisfied with their service.

Unintentional non-compliance:

• An employer that installs a TTY (Telephone Teletype) device for people who are Deaf or have a speech impairment, but does not check the line often enough may be in breach of the "Dignity" and "Equal Opportunity" principles since they are effectively asking disabled person to accept lesser service

• Addressing a support worker rather than the disabled person may be in breach of the standard.

Spontaneous requests and handling non-visible disabilities:

• Communicating with regular customers about the best way to meet their specific needs is good business sense. However, spontaneously being able to meet the needs of new customers may be challenging. In addition, if the nature of the business involves numerous short-term transactions and/or one-time purchases, it may be difficult to prepare for all scenarios.

• Employers may be able to meet common accessibility requirements, but may not be familiar with needs of lesser known disabilities or non-visible disabilities (i.e. brain injury, mental or psychological disabilities). For example, a customer with a mental health disability that makes it difficult to be in crowded space may be offered a table apart from others. This may be feasible for some businesses, especially when provider is aware of the needs of a regular customer. However it may be difficult to provide this special seating "on the spot" for a new customer.

Service animals:

• Most people are familiar with the use of seeing eye dogs, but there are other types of service animals (horse, rabbit, monkey, etc.)  that can be used to assist people with a variety of disabilities (autism, mental health disabilities, those with physical or dexterity disabilities, etc.) that must be allowed in your place of business. If in doubt, a note from a doctor or nurse may be requested.

• Managing the conflicting needs of a disabled person with those of customers or staff members with allergies (related to a service animal) may put the employer in a difficult position.

Proprietary information:

• Some organizations may have concerns about providing proprietary information or intellectual property in written, video or audio format that may be shared with others.

To learn more about the AODA Customer Service Standard and how Clear Path can help your business become compliant, contact Anna at anna@clearpathemployer.com or (519) 624-0800. You may also choose to register for one of our upcoming learning sessions.

By David Guerin, Clear Path Employer Services (2011)

Insights from Nov 29, 2010 teleconference on recent changes at the WSIB:

Check out the Tools section of our website to download a copy of the presentation used by the WSIB during the teleconference.

On Monday the WSIB held one of their promised Stakeholder Consultations via teleconference regarding the new Work re-integration policies.

I was one of the "lucky ones" to have heard about the session, however the 2 ½ hour "consultation" did not reveal many new details. The session started with a walk down memory lane in terms of the previous RTW and Labour Market Re-Entry programs with the WSIB and the "case for change."

The premise sounds good: they envision "Re-integration to decent, safe, and sustainable employment." Alas, I'm unsure that the WSIB has a realistic and practical way of implementing this in the real world. Here are some of the highlights of the content discussed:

Policies:

There are 5 new Work Re-integration policies to replace the 24 existing policies covering ESRTW, re-employment and LMR:

• Principles, Concepts and Definitions (19-02-01)
• Responsibilities of the Workplace Parties (WPP) in the Return to Work Process (19-02-02)
• Determining Suitable Occupation (SO) (19-03-03)
• Work Transition (WT) Plan (19-03-05)
• Work Transition (WT) Expenses (19-03-06)

In addition, there is a new draft NEER policy (featuring the change to a 4 year window). According to today's presentation, this new policy "will not be used by WSIB staff during consultation period," but rather the "existing NEER policy (13-02-02) will continue to apply throughout the course of the consultation period."

So what do these new policies mean for the employer?

We see that the WSIB is looking at different outcomes with this new program, with particular focus on ensuring that the injured worker returns to the injury employer as often as possible. These options include:

• Pre-injury job with injury employer,
• Pre-injury job, with accommodation if required with the accident employer, 
• Work of a comparable nature and earnings to pre-injury job with injury employer, with accommodation if required, or lastly,
• Alternate suitable work with injury employer, with accommodation if required

Obligations of the workplace parties seem simple - maintain early contact, communicate throughout recovery, identify RTW opportunities, make sure to give any relevant RTW info to the WSIB and lastly to report any disputes to regarding RTW.

What is the Work Transition Plan and when does this come into play?

It seems that if there are issues with RTW then the case manager will refer the file to the WTS -Work Transition specialist for review. This will typically happen between 6-9 months of time.

One of the concerns we see here is the issue with recovery and healing times. Currently there are some discrepancies and inconsistencies with regard to healing times and the jury is still out on this issue. When we asked the question of the presenters today, they really didn't have a good answer for us on how the healing times let alone the severity of injury would be determined or if it will be determined consistently by the WSIB.

Young and older workers:

Couple of really interesting changes - one of which is around the young worker and enhanced benefits for this group of individuals that could potentially be earning lower pre-accident earnings. The new system will actually assist them to "achieve higher earnings than pre-injury without significantly increasing the cost or duration of the plan." So at the end of the day this looks a bit like an advantage if you are a younger worker who may not have pursued higher education - Which seem to me among other things to be slightly discriminatory...

The other item we thought was interesting is the "option for workers 55 or over to participate in a self-directed transition program (TP), with full LOE benefits payable for 12 months, following which LOE benefits based on the identified suitable occupation (SO)". We're not quite sure how this will work...and not sure the WSIB knows either.

"We can't force the worker..."

One thing I noticed throughout the session was the frequent use of the words "we can't force the worker." This was used in relation to accepting shift changes or part time work, relocation or even certain types of training. One thing is sure; there will be more worker intervention, input and generally direction by the worker in this new work re-integration program.

Consequences of non-cooperation:

According to today's session, a dispute over "job suitability" does not automatically mean that workplace parties (WPP) are being non-cooperative. However, if parties are being non-cooperative in RTW efforts, there will be penalties:

• For the worker the initial penalty will be a 50% reduction in benefits and the full penalty being full wages reduced.
• For the employer penalties start at 7 days after the written notice of non cooperation and include 50% of cost of lost wages, the final penalty will be 100% of the cost of the worker's wage loss benefits, plus 100% of any costs for providing WT services to the worker.

The light at the end of the tunnel here is that for an employer that breaches both a co-operation and re-employment obligation in the same claim, the WSIB will apply a single penalty however, the presenters were not able to confirm if this will be applied over and above any NEER surcharges or as a separate penalty.

Next Steps:

If you would like to discuss the changes to the WSIB in more detail, please don't hesitate to contact Anna Aceto-Guerin, CHRP at anna@clearpathemployer.com or call (519) 624-0800

Despite the fact that 60% of business executives believe they have a right to know how employees portray themselves and their organization in online social networks, only 17% have programs in place to monitor and mitigate possible reputational risks. (Source: 2009 Ethics & Workplace survey, Deloitte)

The spread of Social Media like Facebook and Twitter has offered new opportunities for employees to release confidential company information, disrespect a fellow employee's privacy, and create a hostile work environment.

Employees now have the ability to post, tag and ‘like' content on the internet that can be defamatory for an organization's employees and/or brand. These acts can occur both in and out of the workplace, and while an employer can not control what their employees do in off-hours they can manage it!

The Best Defence is a Good Offence

Organizations should be proactive and define the difference between acceptable and inappropriate online behaviour, emphasizing the connection between an employee's conduct and your company's image.

Clear and reasonable policies should be prepared and effectively communicated to all (posting online will allow employees to access them from home if they are unsure about what they are posting). The policies should contain a warning that you reserve the right to monitor their internet use during work hours or on company computers. In addition, they should state that your company will take action upon those who post negative or inappropriate material involving your company while on their own time.

What constitutes non-permissible?

Non-permissible content can range from intentional discrimination, harassment or bullying towards other employees to the unintentional release of company confidential information. Even if an employee is expressing personal opinions on non-work topics, if they use their title/position, their comments may attribute to their employer, with potentially negative consequences for the business.

Examples of possibly defamatory acts done in off-hours:

• Employees post pictures of themselves in company uniform engaging in "inappropriate" acts
• Personal blog entry from frustrated worker complaining about being passed over for a promotion, naming supervisor and company
• Facebook page which includes name of employer and has postings about long hours getting ready for a new product launch
• Sending intimate personal messages using company technology

When it comes to the law the basic rule of thumb is that an employer has NO authority over what employees do once they're off the clock....UNLESS the employer can show its legitimate business interests are affected.

Once something is posted....

No matter efforts your company takes, it may be impossible to prevent something negative from hitting the web. According to a 2009 Deloitte survey, 49% of employees say defined guidelines will not change their behaviour online. Therefore, periodic monitoring of internet content should also be conducted:

• Set up Google Alerts and use TweetDeck to conduct real-time Twitter keyword searches to monitor social media use by employees (or others).
• Sign up for web domains, such as ‘yourcompanysucks.com' to halt opportunities for future brand damage

Ultimately, you must discipline (which may include termination for cause) any employee who intentionally breaches your company's acceptable internet use policy.

Real Life Brand Defamation

In April 2009, two Domino's Pizza employees posted a series of YouTube videos depicting themselves playfully tainting food products before allegedly passing them on to customers. With close to one million views, these three minute videos prove that anyone can easily attempt to undo all that's right about a strong brand using social media.

Next Steps

If you would like to discuss creating an Acceptable Internet Use Policy or any other HR related issues, please don't hesitate to contact Anna Aceto-Guerin at (519) 624-0800 or via email at anna@clearpathemployer.com.

By Katie O'Reilly, Clear Path Employer Services (2010)

Updates:

Nov 3/10: First known Canadian case of an employee being fired for their Facebook postings.

Nov 26/10: Toronto Star article detailing the shocking amount of time spent on non-work related internet activities by government employees (including illicit and even illegal content).

The TV program "Grey's Anatomy" (ABC) ended its 6th season with a shockingly violent episode where the disgruntled husband of a recently deceased patient returns to the hospital with a gun and plans to kill those he blames for his wife's death. Over the course of the 2 hour episode, numerous characters were injured or killed.

Although this is a fictional TV drama and your business may not face the same logistical concerns as a major U.S. hospital, the episode did highlight a number of issues related to workplace violence and the recent legislative changes in Ontario under Bill 168, including: 

• Most workplaces are totally unprepared for a violent incident and may not know how to effectively notify fellow employees about the danger or how to evacuate the building
• Even if the offender has an intended target, innocent bystanders (employees, customers) are likely to be injured as well
• Employees may assume that a "general" warning is a drill and not take it seriously
• Workers may inadvertently assist the perpetrator with entry into the building or provide directions on how to find the intended victim (such as Sandra Oh's character does)
• Most businesses do not have controlled entrances, making it easy for unwanted members of the public to enter the premises
• The shock and chaos created by a violent incident can make employees unsure about what action to take, how to summon assistance, and how to keep themselves out of harm's way
• PTSD (Post-Traumatic Stress Disorder) for employees directly and indirectly impacted by the violent incident is likely and may have long-term consequences for your workforce. It will be interesting to watch how Grey's Anatomy handles this in their new season.
• Healthcare providers are more likely to be victims of workplace violence than the general public

To learn more about Ontario's Bill 168 (Workplace Violence & Harassment legislation), contact Anna Aceto-Guerin at (519) 624-0800 or plan to register for one of our upcoming learning sessions.

By David Guerin, Clear Path Employer Services (2010)

Using employment contracts for all your workers is an absolute must for employers - although many businesses don't use them consistently. In addition, companies need to be sure their actions don't cause these contracts to become unenforceable in the future - leaving them vulnerable to expensive employee payouts and the potential of lost revenue.

This blog entry will provide tips on making sure your contracts don't get thrown out by a judge down the road, including suggestions on how to draft critically important non-compete clauses.

Tip # 1: Don't have new hires sign contract on their 1st day (or after they've started working for you)

By doing so, the "contract" may be a complete waste of time since you have not provided "reasonable consideration" to the new employee and may be accused of coercion. A savvy employee may willingly sign the document at that time, knowing that it is likely to be overturned in the future if necessary.

To be valid, a contract must provide details of compensation and the recipient must be given sufficient time to review it in order to meet "reasonable consideration" requirements.

To avoid any suspicion of "coercion" and to keep it enforceable in the future, Clear Path recommends a new recruit receive their contract at least 3 days prior to their start date (7 days is even better). That way, the recruit has sufficient time to access independent legal counsel if they so choose. Even if a new recruit wishes to sign their new employment contract "on the spot," insist that they take it home with them.

Tip # 2: Include a non-compete clause in your contracts

Everyone knows the old adage, " an ounce of prevention is worth a pound of cure." Ask anyone who had a valued employee leave for a competitor that didn't take the time to carefully draft a non-compete clause, and they will surely tell you it applies.

A non-compete clause is a restrictive covenant that serves as a written agreement between both parties and protects the legitimate interests of the employer. These clauses help protect the employer from losing valuable customers, from having other firms "poach" their best employees, and from losing confidential information or trade secrets.

Tip # 3: Don't be overzealous in the wording

When a non-compete clause is ambiguous or over-reaching, it increases the risk of it being overturned by a court decision in favour of the employee in the future. Ensure your wording is clear and does not contain constraints that a judge may deem excessive or unreasonable.

Factors a court will scrutinize and may deem unreasonable include:

• Duration: Anything longer than 6 months is likely to be seen as excessive
• Geography: Forbidding the departing employee from competing with you anywhere across the country or planet will be seen as unreasonable. We recommend establishing a specific perimeter (i.e. 50 km in any direction from your head office).
• Activity prohibited: Although you may want to, a judge will likely not uphold a ban from doing business of any kind with your existing customers. For example, one of your sales people may wish to sell a totally unrelated product to your customers (i.e. coffee). You need to be specific in the type of business activity you wish to constrain.
• Customization: Courts will typically be favourable to clauses written for individual employees, rather than general agreements signed by the whole.

Help! I already have employees without a contract. It's not too late!

An employer can institute a contract for existing employees to sign at any time. Just remember that appropriate notice and consideration must be given, which usually involves monetary compensation. Ensure that you speak to a lawyer and/or HR professional before beginning this process.

Tip: It is recommended to bundle any request to sign a new contract with another event such as a performance review.

Conclusion:

Don't leave your company vulnerable to future issues. Consistently use employment contracts and non-compete clauses for all your employees. Draft them carefully, since being ambiguous or excessive in your restrictions can lead to the entire contract being thrown out - leaving you without any protection.

News Relation

A non-compete clause has recently sparked a public legal battle between Hewlett-Packard and its former CEO Mark Hurd, after he was hired by Oracle, threatening the release of trade secrets. http://www.ibtimes.com/articles/60661/20100908/oracle-hp-lock-horns-over-hurd-and-trade-secrets-who-will-win-and-why-2.htm

For more information or if you have any questions, please don't hesitate to contact Anna Aceto-Guerin, CHRP.

Thought-provoking Maclean's magazine article notes the rise of several high profile sexual harassment claims during the summer of 2010, including several in Canada.

The article suggests that although most businesses have sexual harassment policies in place, little seems to have changed in terms of management's response to claims brought forward or individual's willingness to file a complaint. The article suggests that many are afraid that they will be told they misunderstood the accused's intentions and "not take themselves so seriously."

Is this Human Capital Risk something that should be getting more attention?

http://www2.macleans.ca/2010/08/20/the-creep-in-the-cubicle-next-door/