The Occupational Health and Safety Act, R.S.O. 1990, C. 0.1 (the “OHSA“) is a piece of Ontario legislation that deals with health and safety in the workplace, including violence, harassment, equipment safety, etc. It places a great amount of responsibility for workers’ health and safety on the workers themselves but it puts the onus of enabling the workers to take on that responsibility squarely on the employer.
NOTE: “worker” is defined in the OHSA as being any person who performs work or supplies services for monetary compensation and therefore includes both employees or independent contractors
If you are a dentist employer, you will need to familiarize yourself with the ins-and-outs of the OHSA in order to be compliant. Here are the basics of what every dentist employer needs to know about the OHSA:
According to O. Reg 297/13 (a regulation made under the OHSA), all employees must receive occupational health and safety awareness training. Such training can be obtained by the employee either online or by completing the Health and Safety at Work, Prevention Starts Here workbook in writing. Both these methods can be found on the Ministry of Labour’s website here.
Where the dental office regularly employs between 6 to 19 workers, then the OHSA mandates that a “health and safety representative” (the “H & S Rep“) be elected by the other workers who do not exercise managerial functions.
H & S Rep Training
The H & S Rep must be provided training by the employer in order to enable her/him to effectively exercise their powers and perform the duties of an H & S Rep. The employer must pay the H & S Rep their regular wage while they are receiving H & S Rep training or performing duties as an H & S Rep.
Functions / Powers of the H & S Rep
The OHSA gives the H & S Rep certain powers and functions:
In dental offices with 20 or more workers, the OHSA mandates that a joint health and safety committee (“JHSC“) be established and maintained.
Composition of the JHSC
The JHSC must consist of at least 2 persons (in workplaces with less than 50 workers) with at least 50% of the JHSC members to be non-managerial workers and elected by non-managerial employees, the other members may be workers in managerial positions and may be selected by management.
Certification of JHSC Members
You, as the employer, must ensure that at least 1 of the non-managerial JHSC members and 1 of the managerial members are “certified”. Certification can be obtained through many sources, but those sources must be approved by the Ministry of Labour. Click here for a list of approved providers of certification training.
Functions / Powers of the JHSC
The OHSA gives the JHSC certain powers and functions:
Under the OHSA, employers have a general duty to cooperate with and help H & S Reps or the JHSC to carry out their functions. In particular, you, as the employer, are required to do the following:
Other duties of the employer mandated by the OHSA include:
A worker may refuse work under the OHSA where he/she believes that:
Upon refusal to work, the worker must promptly report the circumstances of the refusal to the employer who must investigate the report in the presence of the H & S Rep or elected member of the JHSC. The worker who refused the work must remain in a safe place near the workplace and be available for the purposes of the investigation
You, the employer, cannot punish a worker who exercises their rights under the OHSA. Where a worker has followed the OHSA and regulations, exercised their rights under the OHSA, cooperated with a Ministry of Labour inspector, provided information to a Ministry of Labour inspector, testified against you or asked you to follow the OHSA and its regulations, you cannot do any of the following:
If you contravene the OHSA, depending on the infraction and whether you are an individual employer or a corporation, you may be guilty of a criminal offence and may be liable to penalties from $50,000 to $500,000 per infraction. For this reason, you must ensure that you are complaint with the OHSA at all times.
To help employers gain a better understanding of the OHSA, the Ministry of Labour has released a guide on the OHSA which is written in simple and easy to understand language. That guide can be found here.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
This is an update to my blog What’s in a Name? What Dentists Need to Know about Naming Their Dental Practice. There, I talked about the types of names a general or specialty dental practice is permitted to have, but I did not discuss mixed specialty practices and co-mingled speciality and general practices. That’s the topic of this blog…
Whether we are talking about a general practitioner hiring a specialist associate or partnering up with a specialist, the Royal College of Dental Surgeons of Ontario (the “RCDSO“) naming rules for mixed general and specialty practices are the same:
Separate RCDSO naming rules govern situations of two or more different kinds of specialists practising out of the same location (whether in partnership or as associates):
For further guidance on practice names, you can contact us or the RCDSO directly or visit them online for useful publications: www.rcdso.org. Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
Last month I published a blog about what dentist employers must have posted in and around the dental office where employees can see and refer to those postings on a regular basis. You can find that blog here.
One of the mandatory postings was the “What You Should Know About the Ontario Employment Standards Act” poster. This month, the Ontario Ministry of Labour updated this to a new version (version 6.0) entitled “Employment Standards in Ontario“. The new poster does not reference any new laws or amended laws, it is just a cleaner and less crowded version of the old poster.
What Does This Mean For Me?
This means that you should be taking down the old poster and replacing it with the new one, which can be found in PDF format here.
Remember, Section 2(3) of the Employment Standards Act, 2000, S. O. 2000, C. 41 states that all employers must “post and keep posted in at least one conspicuous place in every workplace of the employer where it is likely to come to the attention of employees in that workplace a copy of the most recent poster published by the Minister under this section” (emphasis added).
In addition to the posting requirement, employers are now also required to provide all new team members with the poster (regardless of whether the poster is already displayed in a visible place) within 30 days of their start date. If the team member requests it, the employer must also provide the Employment Standards in Ontario poster in a different language. These multilingual posters can be found here.
For further guidance and information on employee postings or anything else contained in this blog, you can contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team. Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.
Not long ago a dentist client said the following to me:
“I heard from a friend that I don’t have to give employees vacation pay if I terminate them before they take their vacation“
There are a lot of these myths and tall tales floating around out there about what is legal and illegal when it comes to employee vacation time and pay. It is these types of “I heard from a friend” stories that have inspired me to demystify some of the common vacation time and pay myths out there.
According to the Employment Standards Act, 2000 (the “ESA“), Ontario employees are not entitled to vacation time or pay until such time as they have worked for 12 consecutive months. This, of course is the minimum standard and employers can (and often do) choose to give their employees 2 weeks off and 4% pay in the first year they are employed.
WHAT DOES THIS MEAN FOR ME?
You do not need to give a new employee their 2 weeks of vacation (or pay them vacation pay) until the end of their first year of work.
Yes. The ESA specifically states that “the employer shall determine when an employee shall take his or her vacation…” Furthermore, the ESA says that employers should give their employees 2 consecutive weeks off OR two blocks of 1 consecutive week – unless the employee consents to take their vacation otherwise (i.e. a day here and a day there)
WHAT DOES THIS MEAN FOR ME?
If you wish to shut down the office for one week in the winter (usually over the holidays) and one week in the summer (because it is usually slow around this time), then you can do so without violating any laws. Just make sure you give your employees as much advance notice as possible before doing so, and make sure this will not violate your office policy.
No. The ESA says that the employee’s vacation should be “completed no later than 10 months after the end of the vacation entitlement year for which it is given”. In plain language, this means that if the employee does not use their vacation within 10 months after the end of the last vacation year, they are no longer entitled to it.
WHAT DOES THIS MEAN FOR ME?
Vacation does not have to accrue year to year – and in the end allow an employee to take 3 months off in a year. If the employee does not take their vacation within 10 months of the last vacation period, then they are no longer entitled to take it. Don’t fall into a trap though, you still must give an employee their vacation pay even if their right to take the vacation has passed.
Yes. Yes. Yes. Because every employer is required by law to give each employee 2 weeks of vacation paid at 4%, it is a non-negotiable benefit which accrues to the employee while they are employed with you. When the employee is terminated without cause, then they are still entitled to whatever vacation pay they have accrued up to the time of termination.
WHAT DOES THIS MEAN FOR ME?
Terminating an employee without cause means that, along with termination pay, you must also pay them any accrued vacation pay. Different rules apply if you give the employee working notice or if you fire them for cause. Because termination is a complicated matter, you should speak with a lawyer before terminating any employee.
Yes. According to the ESA, “both active employment and inactive employment shall be included” for the purposes of accruing vacation. What this means is that leaves of absence of all varieties (i.e. parental leave, pregnancy leave, bereavement leave, etc.) count as time employed for the purposes of accruing vacation.
WHAT DOES THIS MEAN FOR ME?
That employee that went on maternity leave is still entitled to vacation pay even though she is gone… And that employee that left for 3 months to take care of her sick mother is also entitled to accrued vacation pay for that time. Be sure to pay these accordingly because otherwise you will be in violation of the employment laws of Ontario.
For further guidance and information on employee vacation entitlements, you can contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team. Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.
You’ve likely heard horror stories about employees suing their employers and getting thousands of dollars in court or tribunal awards for wrongful termination or breaches of human rights.
If you have to fire an employee, you should FIRST be talking to your dental lawyer about a legal document called a “Release” or “Release Agreement“. A well-drafted Release can save you time, headaches, and MONEY when you and an employee are parting ways.
Before presenting a Release, please be aware (among other things) that:
Here are 5 benefits of a properly drafted, presented and signed Release Agreement:
If a law suit or tribunal complaint has already been commenced by the departing employee, then a Release can stipulate that such suits or complaints must be discharged by the departing employee in return for a certain amount of money.
The Release should state that the departing employee will not commence any new complaints or suits having to do with employment law or otherwise against the dentist employer. This should include human rights tribunal complaints.
The Release Agreement should also say that the Release Agreement and all aspects of the termination or events leading to the termination will be kept confidential by the departing employee. This is important when the departing employee still maintains friendships with others who remain employed at the practice.
Friends talk… but you don’t want them talking about the amount of money you paid an employee for termination, as a settlement or as an enticement to sign the Release Agreement.
When scorned employees are terminated, they sometimes feel the need to air their complaints about their former employer in the public domain. The non-disparagement clause will have the effect of stopping the departing employee from saying or publishing disparaging or deleterious remarks about the dental practice, its employees, directors, associates, patients, etc.
Finally, a well drafted Release will set out consequences for breaching any aspect of the Release Agreement.
The recent case of Wong v. The Globe and Mail Inc. 2014 OSC 6372 is a good example of the importance of being specific about the consequences of breaching the terms of the Release. In this case Wong, a former employee of the Globe signed a release that stipulated that she would be getting about $200,000. In return for the money, Wong agreed to keep the agreement and the contents of the agreement confidential and failure to do so would result in her having to pay back all of the amounts paid to her.
A few years later, Wong published a book about her time at the Globe that included telling the readers that “I’d just been paid a pile of money to go away…”, ” Two weeks later a big fat cheque landed in my account”, etc. The Globe saw these comments as breaching the confidentiality portion of their agreement with Wong and asked her to return the amounts paid to her. In the end, Justice Nordheimer of the Divisional Court upheld an arbitrator’s finding that Wong had breached the non-disclosure portion of the agreement and she was obliged to pay the entire amount back to the Globe.
For further guidance and information on Release Agreements, you can contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team. Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or email@example.com.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or firstname.lastname@example.org.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or email@example.com.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or firstname.lastname@example.org.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or email@example.com.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or firstname.lastname@example.org.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.