We often get asked in HR, what are my rights to information on an employees disability?
Well the answer is a complicated one that needs to be carefully considered. Usually the answer is - "it depends". Below, I will take you through several different commonly asked questions.
What is a disability?
The Alberta Human Rights Act defines mental and physical disability as:
Mental disability means any mental disorder, developmental disorder or learning disorder, regardless of the cause or duration of the disorder.
Physical disability means any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes epilepsy, paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, and physical reliance on a guide dog, wheelchair or other remedial appliance or device.
Note that the flu and colds are not considered a disability and therefore your accommodation requirements are much lower.
When can I request information from an employee?
When requesting medical information, you should consider:
What information can I request?
For the most part, an employer is not entitled to the diagnosis but can ask about:
ContactWhen can I ask for more medical information?
You must first determine whether or not you have the information you need in the medical information supplied. If you are missing information needed to accommodate an employee safely, you may request additional information. If more medical information is needed, you should:
You are not entitled to:
Contact us today to find out more about implementing a strong disability management program into your Human Resources practices or to review a current disability claim.
I just attended another webinar of the dozens I have this year.
This one was on Overview of Employment Standards Code. There are so many unique situations employers face and it is difficult to know how to apply legislation. We've seen many employers taking risks as they are not aware of how legislation relates to them. Sometimes just crossing their fingers hoping they are not reported. We know from experience that putting in the effort up front to be compliant saves time, energy, and money.
Here are some answers to common questions:
If an employee requests to be paid our their vacation instead of taking it, can I do that?
Yes and No. Employees can be paid out their vacation, but employers are still required to allow them the time away from work. Therefore an employee who has been with you 4 years and under would be entitled to 2 weeks vacation (4% accumulation) and could be paid out their vacation, however you are still required to provide them with 2 weeks away from work.
Does Bereavement Leave apply to part timers as well?
Yes, the code does not distinguish between full and part time for this topic.
Does a "good friend" passing qualify and employee for Bereavement Leave?
It could! This person could qualify under "a person the employee isn't related to but considers to be like a close relative" (last bullet point under Employees family members). We have seen this distinction be tricky for employers.
Often I receive questions as to whether an uncle or aunt qualifies and they do. A good rule of thumb is "would they be sitting around your table at Christmas dinner or another important family celebration?" if yes then you do need to grant your employee leave.
In regards to the new Long Term Illness and Injury Leave, what information can I ask for in order to grant leave?
The employee must provide you with "reasonable written notice", implied in there is that the employee provides you with a letter stating they require this leave. The employee should provide as much notice as possible. It should include a medical certificate which includes how long the employee is expected to be off.
You can find a list of medical certificates here. Employment Standards also has a great list of leaves here (or click on image). I reference this document frequently as each leave has it's own qualifications, length of leave, documentation, and notice required.
Why bother instituting all of this, who is monitoring this anyway?
Employment Standards Officers do! An employee may have submitted a complaint or tip and employers can face a variety of consequences for not complying including lawyer fees and the options in the below image:
If you've ever been an Human Resources practitioner, your office has probably been referred to as the "Principals Office", the dreaded place where wayward students go to receive their punishment. Often, this is because employees have associated this office and the HR position as with the place they go and the person they see to discuss disciplinary action. As leaders in your organization, it is important recognize that this practice can have detrimental effects on the effectiveness of your HR team.
Depending on the culture/process within your organization, you have likely heard something along the lines of "if you have any concerns, please bring them up with HR" and left it at that. Now put yourself in the shoes of the employee who has something to say, wants to report it, but fears that going to the HR department out of fear of being "on the radar" of HR. This can lead to under reporting and potential productivity issues if problems go unchecked.
HR should be used as a tool in the conversation with employees to establish your expectations, whether it be disciplinary in nature or not. You may want to include your HR rep if you are giving positive feedback, providing a coaching session with that employee, or reviewing their career development plan. Not only does this help keep the HR team informed of your conversations, it helps to reinforce that HR is their to support the employee.
As HR providers, we must also remember to be frequently checking in with employees and looking for these positive moments to provide our support and not necessarily waiting for our invite.
Employers must have "change fatigue" this year with Bill 17 (Fair and Family Friendly Workplaces Act) , Bill 30 (Act to Protect the Health & Well-being of Working Albertans) and now Marijuana becoming legal tomorrow October 17, 2018. All of these changes have required employers to revisit their policies and procedures and communicate with their employees.
It appears employers are not ready for legalization of marijuana according to Global News. The article suggests that employers are using the "head in the sand" technique hoping it won't effect them. We know that employers are so busy that they may not have time to amend their policies and get up to date with best practices regarding marijuana in the workplace.
A blanket statement of "zero tolerance" does not cover employees who may have a medical prescription. On the flip side employees who hold a prescription should provide their employer with this information. Common questions we have been asked are:
How do I handle dependance issues?
Can I test for marijuana in the workplace?
Can an employee smoke marijuana on his/her break now?
What should I do if I catch an employee in possession of marijuana?
How do I handle someone in a safety sensitive position?
These are all questions we have the answers to. Contact us for a consult or a comprehensive policy to cover all these topics.
Biases, that part of us that decides how we perceive things.
Every time you make a decision, your social background, personal and cultural values, and life experiences influence your reasoning. This is beneficial for helping you make day-to-day choices that align with your goals, but in HR it can lead to unconscious bias, also known as implicit bias, which unfairly influences how we interact with employees. Everything from performance reviews, to recruiting, to layoff decisions, can be influence by these biases.
Type of Biases
Affinity bias refers to when you unconsciously prefer people who share qualities with you or someone you like. For example, if an applicant went to the same school as you or they share similar hobbies, you’re more likely to prefer them over other candidates.
We all unconsciously notice people’s appearances and associate it with their personality. Appearances are important, particularly in a workplace setting, as they reflect on professionalism and self-awareness. However, many of us judge others too harshly based on their physical attractiveness.
Other times, you may unconsciously dislike certain features in a person. Maybe you think they’re too short, that they have poor posture, or they don’t have an expressive face. These may stem from a subconscious, stereotypical view of what a successful or friendly person looks like.
Conformity bias happens when your views are swayed too much by those of other people. It occurs because we all seek acceptance from others – we want to hold opinions and views that our community accepts.
Confirmation bias refers to how people primarily search for bits of evidence that back up their opinions, rather than looking at the whole picture. It leads to selective observation, meaning you overlook other information and instead focus on things that fit your view. You may even reject new information that contradicts your initial evidence.
Gender bias is simply a preference for one gender over the other. It often stems from our deep-seated beliefs about gender roles and stereotypes.
The halo effect occurs when we focus on one particularly great feature about a person. You view everything about the person in a positive, ‘halo’ light, which makes you think they’re more perfect than they are. Similar to affinity and confirmation bias, this makes us overlook other information. It skews our opinion of other aspects, including negative ones.
The horns effect is the opposite of the halo effect: you focus on one particularly negative feature about a person, which clouds your view of their other qualities. For example, if a person uses a particular turn of phrase you dislike, you may suddenly dislike everything else they say.
The recency effect occurs when we make a decision or judgement based only on the most recent memory or interaction. For example, if a sales employee recently made a large sale, we may base our assessment of their performance on this sale as opposed to looking at the data from the past year.
How to Overcome Unconscious Bias
Recognizing these biases are the first step in overcoming them.
Use the following strategies to counter your unconscious biases:
Bill 17 (The Fair and Family Friendly Workplaces Act) brought in many changes for Alberta Employers. It is important that employers have implemented changes from the Bill as it came into effect in January 2018. Contact us if you need advice or assistance in implementing changes into your company.