Legislation

Eldercare and Workplace Violence

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Many of us have, or will have, to live through the process of finding care for our aging elders who are battling age-related dementia, such as Alzheimer’s disease. Most of us are unable to provide the escalating level of care that is required for our parents or grandparents with this disease, so that they can live safely in their own homes. As a result, we have to make the difficult decision to move our elders into a healthcare facility, such as a nursing or long-term care home.

As we know from multiple media sources, the demand for eldercare, especially critical care, far exceeds the availability of facilities and spaces for this aging and growing demographic. Public healthcare services are simply not able to keep up with the demand. Not only are the facilities filled to full capacity, the services needed once the elderly are in care are at maximum demand. Adding to this pressure for demand, the needs of those afflicted with Alzheimer’s disease can vary tremendously depending on the level or progress of the disease.

Included in the litany of miseries that comes with Alzheimer’s disease is the change in the affected person’s behaviour. People who have spent their adult lives as loving and thoughtful parents or grandparents, often turn into violent, aggressive, and abusive individuals. The cause for this dramatic and devastating change is the disease. While we know that the person who is raging abuse, and hurling objects at anyone who enters the room, is ‘not themselves’, the impact of the violent or aggressive behaviour is devastating to the person who is the subject of that abuse. Getting slapped, kicked, or punched feels the same on the receiving end, no matter what the age or mental state of the person doing the slapping, kicking, or punching.

In 2017, the results of a poll showed the impact of the escalating levels of workplace violence experienced by healthcare workers from patients in the Ottawa area. This risk of harm to workers increases for those who care for patients who have to move into extended healthcare programs, hospitals, and facilities.

Typically, people who have to live in long-term care facilities are not there by choice. Healthcare workers in these facilities find themselves working with patients in a closed environment—meaning that patients cannot leave—who may be easily triggered by the routines the workers must abide by in order to do their jobs. When coping with numerous patients suffering from Alzheimer’s disease, these triggers can multiply and range in level of severity, depending on any number of differing variables.

It is no wonder that the healthcare sector finds itself in need of more resources and training tools to reduce the risk of harm for both healthcare workers and the persons entrusted to their care.

In the fall of 2019, the Ontario government published ‘Workplace violence prevention in health care: A guide to the law for hospitals, long-term care homes and home care.’ While this document reinforces the regulatory requirements of the Occupational Health and Safety Act, it also emphasizes the need for employers in the healthcare sector to train and support their workers, and instructs supervisors on how to work safely in the face of an increasingly unsafe workplace environment. A brief legal analysis of the guide is provided by the Canadian HR Reporter.

As noted in the analysis, the time for a cultural shift in healthcare, with the implementation of proactive workplace safety measures, is at hand. All of us will be the better for it.

Discussion Questions:

  1. As the Health and Safety leader in a healthcare workplace environment, how will you balance the rights of workers with the need to provide appropriate services to patients who may be violent?
  2. What are specific and proactive steps you could implement to reduce the risk of harm to healthcare workers in a long-term care home?

Flipping Out Over ‘Contract Flipping’

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Andrii Yalanskyi/Shutterstock

Contract flipping is not a widely publicized or known strategy in the employee and labour relations environment.

It is, nevertheless, a staffing scheme that exists and is used with more frequency than publicity.

Contract flipping is the practice of terminating existing unionized employees under one contract and then hiring the same employees for lesser wages and benefits under a new contract. This can be done if the business is sold from one entity to another and/or if there are no successor rights within the existing collective agreement.

While this is not an illegal or illegitimate action on the part of the employer, it is a practice that has little benefit for existing employees. When this happens, the economic impact on individuals can be devastating. On the employer side, however, contract flipping allows for significant savings and labour-related cost reductions.

In British Columbia, contract flipping has become an issue for resolution within the legislative framework. The current government in British Columbia has introduced legislation to limit the practice of contract flipping.

The first approach by the government of British Columbia was targeted in the public sector for seniors’ homes and health care facilities with the introduction of Bill 94.

Click here to read about the proposed changes to contract flipping through Bill 94.

The impact of the proposed legislation has moved into the private sector as well, as noted in a recent article about the impact of contract flipping on janitorial workers employed by BC Hydro.

Click here to read the article.

These articles provide us with the example of how the government becomes a key actor in changing the legislative environment. In this case, the actions of the provincial government in British Columbia come from the premise of social justice when dealing with the matter of contract flipping and its impact on its citizenry.

As of the timing of this post, the current status of Bill 94 is unclear. What is clear, in this case, is the need and the resulting actions of government intervention that are required in order to institute a change in public policy.

Discussion Questions:

  1. Is there a benefit to contract flipping for employees? Explain your rationale.
  2. What are the potential risks to employers who use contract flipping as part of their staffing protocols?
  3. As the HR professional for Alpine Building Maintenance, what advice will you give to the company’s decision makers about the timing of hiring former BC Hydro janitorial workers?
  4. In your opinion, why does the British Columbia government want to change the practice of contract flipping in the health-care (public services) sector?

Legislating Common Sense

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I went to an information session earlier this year on the implementation of the recent employment legislation changes in Ontario. The session was provided by a labour relations lawyer to an audience made up of small business owners and independent Human Resources professionals. Included in the many legislative changes introduced, was the footwear amendment to the Occupational Health and Safety Act.

Click here to read the amendment to the Occupational Health and Safety Act.

Click here to read an article about the proposed legislative changes.

I suppose I should not have been surprised at the reaction of many in the audience to this new legislation. There was a round of guffaws and snorts, along with a smattering of giggling nudge-nudge wink-wink reactions. This particular piece of legislation allows for people who work in the entertainment industry to wear high heels. Specifically, it allows for entertainers (including those that work in the ‘exotic’ category) to keep their dancing shoes on. What got lost in the ensuing discussion, was the fact that this legislation prevents employers from requiring their staff to wear high-heels as part of a condition of employment. Furthermore, this restriction places an obligation on employers to provide a planned and pro-active response that protects workers from high-risk injuries based on a reasonable and common-sense approach to footwear requirements.

Employers in Ontario can no longer demand that their workers wear high-heels in order to perform the bona fide occupational requirements of their jobs. From a social justice perspective, the legislation seeks to curtail a systemically sexist requirement for certain occupations. It appears that the law is targeted at the restaurant/tavern/bar industry, which has in many cases required female workers to wear high heels while serving drinks and food to patrons. There is no reasonable work-related requirement that necessitates a female person to wear high heels while working an eight- to twelve-hour shift in a bar or a tavern while standing, walking, and carrying tray-loads of beverages and food. It seems unreasonable to think of a male or female construction worker carrying piles of lumber across a work-site while wearing high heels. The risk of injury in this scenario would appear to be quite high and completely preventable, based on a ridiculous footwear requirement.

Hopefully, common sense will continue to prevail as we move toward making our workplaces safer for everyone.

Discussion Questions:

  1. Why do you think this legislative change was necessary?
  2. By including this amendment to the Occupational Health and Safety Act, what obligations are imposed on both the employer and the worker with regard to footwear safety?
  3. Thinking of your past work experience, have you had to wear work-related attire that made you uncomfortable? How did you proceed at the time? What would you do differently now?

Safety Costs

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There are three key principles in the management of Human Resources. These are, in no particular order, the management of risk, the management of costs and the management of investments. When we apply these three principles to the management of people they help guide our Human Resources practices in a language that non-Human-Resources business leaders can understand.

These same principles apply to the management of Occupational Health and Safety. Risks, costs, and investments are concepts that make sense to business leaders whose main concern is the bottom line. It is our job as Human Resources practitioners to make the connection for business leaders between the bottom line and safe workplace practices. We are responsible for the people who are the resources impacting the fiscal health of every organization.

Nowhere is the need for the diligent Human Resources management of risks, costs, and investments clearer than in the emerging precedent-setting cases linked to workplace harassment. The financial penalties imposed on the employer for failing to providing a safe workplace are significant.

Click here to read about a recent case where an employer was ordered to pay damages as a result of workplace harassment.

If business leaders to do not understand the language used by Human Resources practitioners when we speak to the social need for safe workplaces, free from harassment of any kind, then we need to re-shape the language to get our points across. We need to use the language that makes sense and has an impact on business leaders in order for them to implement what is required by law.

Workplace harassment in Ontario falls under the scope of the Occupational Health and Safety Act in two distinct pieces of legislation. Bill 168 and Bill 132 both impose the legislative requirements for employers to ensure that workplaces are free from harassment of any kind. When the employer fails in these responsibilities, it is a failure of risk and investment management, resulting in significant costs.

Money talks. It is the job of Human Resources to make sure that people are listening.

Discussion Questions:

  1. How does risk management, cost management, and investment management apply to people management?
  2. How could you use these three principles to convince the leader of an organization to implement a harassment free workplace?
  3. What are ‘Wallace damages’? Why would these be a consideration when dealing with the employer’s responsibilities in an allegation of workplace harassment?

Why Job Evaluation Matters

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Workplace Gender Equality in a Business or Career
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True confessions: As a female HR practitioner, I should not be surprised by the fact that women continue to be underpaid and undervalued in today’s workforce, but I am. Wage parity between male and female workers has been problematic for far too long. Unfortunately, this problem of wage inequity continues to be an issue in workplaces across the globe. As noted in a recent article providing an international perspective, the wage gap difference between male and female workers does not seem to be resolving itself any time soon.

Click here to read the article.

Q: What is the answer to this seemingly never-ending problem?

A: Job Evaluation.

Very simply, job evaluation offers any employer a tool, a methodology and a path to creating job equity using gender-neutral point systems that measure the value of work within any organization. While many employers in Ontario may balk at the implementation costs related to these systems, at the end of a job evaluation review, the employer can rely on a process that counter-acts systemic gender-based wage discrimination.

True job evaluation systems allow for the neutral review, measurement, assessment, examination and evaluation of work performed regardless of who is doing the work. Job evaluation should eliminate (or at least reduce) the need for a female worker to put herself through the rigors of demanding to be paid equally for work that her male counterparts are performing. If the system works, it will work for everyone, male and female alike.

The push for this change for wage parity started decades ago.

It’s time to make it happen.

Discussion Questions:

  1. In your opinion, why are employers resistant to implementing job evaluation systems voluntarily?
  2. What are the benefits to an employer of maintaining wage inequality between male and female workers?
  3. If you had to fight for a wage increase based on gender inequality – what steps would you take to make it happen?