HR and ER Priorities in 2022: A Starting Point
New year, new, endless to-do list?
It is difficult to prioritize human resources and employee relations tasks this year given the additional burdens at work: shutdowns (again), remote work (again/still), absenteeism (and presenteeism), to name a few.
Below are some of the key priorities for Ontario HR and ER professionals from a legal and compliance perspective.
1. Adapting and Rethinking COVID Policies
Given the rise of Omicron, limits on testing, and updated guidance on isolation periods, it’s time to review and update the COVID-19 Safety Plan and sick day policy. Many of the details in previous versions are out-of-date, so I recommend linking to government guidance (vs. setting out symptoms and timelines) and building in flexibility to avoid multiple policy updates.
A lesser, but still important, task is to consider how the company will deal with emerging advice regarding vaccinations and boosters. For example, should the definition of “fully vaccinated” in your policy be amended to recognize infection or require boosters? Is your rapid testing protocol feasible given test shortages? Using flexible criteria or waiting until the current “work from home except where necessary” direction is lifted may be the right approach.
2. Ensuring Other Key Workplace Policies are Up-to-Date
Doing a general decluttering of your policy and posting “bulletin board” is a common task in the new year.
Beyond a decluttering and making the COVID-related updates above, employers need to draft and enact a new policy. Employers with 25 or more employees in Ontario must have a written policy about “disconnecting from work” later this year. While the concept of “disconnecting” is not new, the requirement to have a written policy about it is. Considerations must include: who has the right to disconnect; when and how they may disconnect; and how they address pressures to “connect” during outside business hours, particularly with many employees working flexible hours.
3. Reviewing Wage Bands
The new minimum wage rates took effect on January 1, 2022:
· The general minimum wage was increased to $15 per hour, from $14.35
· Liquor servers’ minimum wage went from $12.55 to $15 per hour
· Wages for certain students, homeworkers, and outdoor guides also increased
Although this wage increase was not as big as in 2018 (a jump from $11.60 to $14 per hour), it may necessitate an upward push on other wage bands. Employers are already reviewing compensation practices (Patrizia Piccolo talked about some newer approaches in her recent blog), including because of the “labour shortage”, but the January 1st increase made this change more urgent.
4. Removing or Redrafting Unenforceable Non-Competition Restrictions
Bill 27 rendered any non-competition restrictions with Ontario employees void if entered into on or after October 25, 2021, except in limited circumstances.
For HR and ER professionals, the easiest move is to delete non-competition restrictions from template employment agreements, except for new employees who may fall under the exceptions – i.e. a “seller” in a sale of a business or an “executive”, as Cindy Ingram described in late 2021.
Even when they’re permitted, non-competition restrictions must be bespoke. Drafting them requires a clear and concise definition of the “business” that the company is looking to protect ; the nature of the employee’s work; the importance of client, supplier, and employee relationships; the life cycle of a project/business relationship; and other situation-specific factors. It’s beyond time to retire the off-the-shelf non-competition restriction in template employment agreements.
5. Updating Contractual Termination Provisions
Beyond COVID-19, a common employment law theme in 2020 and 2021 was the “voiding” of many contractual termination clauses. As with non-competition restrictions, it’s unwise to assume that termination provisions are always (a) enforceable and (b) worthwhile. Employers should ask a few threshold questions before including them in employment agreements – e.g., what’s the purpose, and are they even necessary given the company’s termination practices?
If an employer still wants to include a cap, then it needs to be drafted thoughtfully, with reference to the ever-evolving case law. Janet Lunau prepared a detailed analysis of termination clause drafting faux pas in November 2021.
6. Prioritizing Yourself
I want to show my appreciation for those working in HR and ER roles (directly or indirectly) over the last two years. They have shouldered the same burdens of anxiety, loss of connection, and uncertainty as the rest of us. In addition, they have had to provide support to employees when their gas tank was below empty; draft, redraft, and scrap policies within a constantly evolving landscape; and bear the brunt of those (thankfully few) employees who sought to minimize, disparage, and ignore safety protocols.
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Make sure to prioritize yourself, and your well-being, as we embark on this new year.
