Parental leave for men could be legislated.

Parental leave for men could be legislated

The Ontario government has proposed several amendments to two acts which govern employment - the Employment Standards Act and the Occupational Health and Safety Act. In addition, the Human Rights Commission has issued guidelines for the accommodation of disabilities in the workplace.

PARENTAL LEAVE

The Employment Standards Act has always been accepted as providing minimum employment terms. In other words, no employment contract could provide for any lesser benefit.

Recent proposed amendments will change the character of this piece of legislation. The provincial government has put forward suggestions to coincide with the changes being made federally to the Unemployment Insurance Act. However, the changes will exceed any known minimum in the area of leave for child rearing.

The Ontario proposal is for an 18-week leave for each parent in either a natural childbirth or adoption circumstance. Currently, only a natural mother qualifies for pregnancy and childbirth leave.

In addition, the service requirements for eligibility are being reduced. The existing requirement will be reduced to only six months.

The impact of these changes on employers will be quite significant. Reducing the service requirements will increase the number of people who will be eligible for leave. In some cases, employees who have not even completed their probationary period will qualify. Extending leave to both parents will also increase the number of people taking the leave of absence.

Costs will increase not only for replacing absent employees, but also for other statutory benefits which the proposals suggest should continue to accrue.

DISABILITY GUIDELINES

While there have been no recent amendments to the Human Rights Code, the commission has recently released its guidelines regarding "accommodating persons with disabilities." These guidelines will have a significant effect on the workplace.

The code prevents discrimination in employment on the basis of handicap. It states that where the requirement, qualification or factor on which there was some distinction in treatment was reasonable and bona fide under the circumstances, there was no discrimination. But this apparent saving is restricted on the basis that the commission is satisfied that the needs of the handicapped person could not be accommodated "without undue hardship" considering outside funding and health and safety requirements.

Now the commission has published a definition of acceptable accommodation. The employer must first determine the essential duties of the position and re-assign non-essential duties. Then the individual employee must be accommodated unless the accommodation will affect the financial viability or fundamental character of the organization. These are significant standards which an employer must meet.

The employer must only assess current health and safety risks and may not use speculation of what could happen.

In some circumstances, the employer must allow a disabled employee to assume a greater risk if the employee is willing to do so. This may conflict with other legislation, most notably, the Occupational Health and Safety Act. An employer would be well advised to approach the commission for assistance in dealing with other agencies which could become involved.

OCCUPATIONAL HEALTH

The currently proposed amendments to the Occupational Health and Safety Act, Bill 208, are the first substantive revision since the act was implemented in 1979.

There was quite a lot of public pressure from employers and unions when the amendments were being contemplated and when they were first introduced to the Legislature. And it is not over yet. The bill received second reading on Oct. 12, and it has been with the standing committee on resources since then.

One of the proposed amendments which caused an uproar among employers was the right of a worker representative to shut down a workplace.

Currently, only an inspector from the Ministry of Labour has this power. After much employer activity, this amendment has been softened to allow for a joint decision involving a worker representative and an employer representative. In cases where they cannot agree, the ministry is to be called in.

Other parts of the bill would see the creation of an agency to certify worker and employer safety representatives.

The bill would also increase the number of workplaces where there must be a joint health and safety committee, by including offices, retail shops and on construction sites.

It would also require inspection of a portion of the workplace every month, and the entire workplace once a year. The inspection would be carried out by the members of the committee.

In another area, the bill would make directors and officers of corporations responsible for following the act.

The above legislative changes will create more areas that employers must be concerned with in the operation of their organizations.

And pay equity legislation is also coming to the small- and medium-sized employer soon.

Brian R. Gatien and Pauline Dietrich are members of the Subury-based Gatien Law Firm. The firm's practice is restricted to representing employers in labour relations and employment law matters. The points set out in this article are general in nature and may not apply to specific situations. If readers have any questions of a general nature on the points raised here, or other labor relations matters, they should write to the authors c/o Northern Ontario Business.