As an HR professional in Canada, you are well-versed in the importance of having strong HR policies in place. These policies serve as guidelines for your organization, ensuring consistency in decision-making, creating a fair work environment, and establishing clear expectations for both employees and employers.
However, HR policies are not enough. There is a common misconception that HR policies alone are enough to ensure compliance with the law. It is important to understand that creating and complying with internal policies is not enough – employers have many legal obligations that are not addressed by policies.
While HR policies play a vital role in shaping workplace culture and managing internal procedures, they are not sufficient to guarantee compliance with the full spectrum of employment laws that govern your organization. Employers have legal obligations beyond what is outlined in their policies, and failure to meet these requirements can expose your company to legal risks, including lawsuits, fines, and reputational damage.
In this post, we will discuss the differences between HR policies and complying with employment law requirements in Canada. By understanding these distinctions, HR professionals can better navigate the complex regulatory landscape and ensure their organizations remain compliant.
HR Policies: What Are They and Why Are They Important?
HR policies are formal guidelines established by an organization to regulate the behavior, responsibilities, and rights of both employees and employers. Some of these policies are required by law, but employers often have additional policies that are not legally required.
HR policies fall into three categories:
- Those that are legally required (for example, in most jurisdictions employers must have a violence/harassment policy or program);
- Those that are not legally required but are created in respect of an employer’s legal obligations (for example, vacation policies, leave of absence policies etc.); and
- Those that are not connected to a legal obligation (for example, performance expectations, computer/internet use etc.)
With respect to the first category, it is important to understand that the legally required policies make up a small percentage of an employer’s overall legal obligation.
For example, Ontario has the greatest number of policy requirements (policies that employers are legally required to create). But even then, the policy requirements are only 23% of an employer’s legal obligations.
In addition to policies, an employer has obligations relating to committees or representatives, communications (including posting of certain required information), hiring obligations (such as job posting requirements), record keeping requirements, reporting requirements, training requirements, and ongoing compliance obligations (such as ensuring the workplace has required first aid supplies, ensuring there is no discrimination that is contrary to the law, ensuring wages are paid correctly etc.). Most of these requirements will not be found in any policy – they are found in the legislation that employers are required to comply with.
Ontario Employment Law Obligations
HR policies are primarily designed to promote consistency, fairness, and transparency within the workplace. They serve as a tool for managing day-to-day operations, addressing employee concerns, and fostering a positive work environment. Having clear, well-documented policies also helps employers defend themselves against potential claims.
However, it’s essential to understand that HR policies are internal documents, and while some of them are based on legal requirements, they do not replace compliance with legal obligations mandated by federal or provincial laws.
Employment Law Requirements: What Employers Are Legally Required to Do
Understanding all of your employment law obligations is important for two reasons:
- First, even if your intention is to create policies to address many of your employment law obligations, you need to understand all of those obligations in order to develop policies that comply with the law.
- Second, complying with HR policies is not sufficient for an employer to ensure that they are complying with all of their legal obligations. No matter how comprehensive your policies, there will always be obligations that are outside the scope of your policies. In addition, new requirements are introduced all the time – and you are required to comply with those requirements as soon as they come into force.
Employment laws in Canada are complex and vary by jurisdiction—most employers are governed by the laws of the province where their employees work (which may mean complying with the laws of more than one province if you have employees in multiple provinces), while federal laws apply to employers regulated by the federal government. These laws outline various obligations regarding employee rights, protections, and workplace conditions. We have written about many of these requirements in previous posts, but here is a quick overview of some of the key areas that employers must comply with.
Employment Standards
Every employer in Canada must adhere to the minimum standards set out in the applicable employment standards legislation. This includes regulations related to:
- Wages and overtime
- Hours of work and rest periods
- Employment contracts
- Terminations and severance
- Leaves of absence (e.g., parental leave, sick leave, vacation)
- Employee communications, such as workplace postings
- Hiring, including job postings, pay transparency and foreign workers
- And more…
Federal and provincial legislation sets the minimum threshold for these rights. HR policies cannot override these standards, and policies that are less favorable than the law are not enforceable.
Human Rights
Canadian law prohibits discrimination based on a variety of factors, including age, race, sex, gender identity, disability, sexual orientation, and more. Employers are legally required to provide an equal opportunity workplace and make reasonable accommodations for employees with disabilities.
HR policies may include diversity and inclusion statements, but they must align with provincial or federal human rights codes. For instance, the Canadian Human Rights Act (federally) and provincial human rights acts (e.g., Ontario Human Rights Code) lay out specific guidelines on preventing and addressing discrimination in the workplace. Policies should reflect these legal standards, but the legal obligations are far more extensive.
Occupational Health and Safety (OHS) Laws
Employers in Canada are legally required to ensure the health and safety of their employees while on the job. This includes:
- Providing a safe work environment
- The creation of a health and safety committee or having a health and safety representative
- Offering necessary training and safety equipment
- Reporting workplace accidents and injuries
- Adhering to OHS legislation specific to their province or industry
- And more…
While HR policies often include general statements about workplace safety and most employers are required to have a health and safety policy and/or program, these cannot replace the detailed obligations laid out in OHS laws, which mandate specific actions employers must take to prevent injuries and illnesses.
The Key Difference: Policies Are Internal, Legal Requirements Are External Enforceable Requirements
HR policies and employment law requirements are two distinct but complementary components of a workplace compliance framework.
HR policies are internally focused, guiding day-to-day practices and setting the expectations for behavior and procedures within the organization. They help with internal consistency but are not sufficient to ensure legal compliance. Some policies may be legally required or may be based on a legal obligation, but unless they are a verbatim copy of the legislation, they will not cover all of an employer’s legal obligations.
Employment law requirements are external, mandatory rules set by federal and provincial legislation. These laws establish the legal minimum standards for everything from pay to workplace safety and human rights protections (and more). HR policies cannot bypass or diminish these legal obligations. Your legal obligations extend well beyond the types of issues covered in standard HR policies. When a question or issue arises, it is not sufficient to look to your internal policies – you also need to understand your obligations under the relevant employment law.
Why Relying on HR Policies Alone Is Not Enough
HR policies are helpful tools, but they do not guarantee compliance with employment laws. For example, an HR policy may outline a leave of absence procedure, but it may fail to account for specific legal requirements, such as the types of leaves protected by law (e.g., maternity leave or bereavement leave), the exact terms of notice required for taking such leave, or an employee’s rights when taking a leave (such as how the leave impacts vacation or other legal entitlements). Similarly, there are many legal obligations that fall outside the scope of HR policies.
Furthermore, employment laws often evolve, and HR policies must be updated regularly to reflect these changes. Without proper legal review and regular audits, your policies may become outdated, leaving your organization vulnerable to non-compliance.
In short, HR professionals must take a holistic approach to compliance that integrates HR policies with a proactive commitment to understanding and following all applicable employment laws. This involves:
- Regularly reviewing policies to ensure they align with current legal standards
- Understanding that your legal obligations go well beyond your policies
- Staying informed about changes in employment legislation
- Seeking legal counsel when necessary to navigate complex issues
- Training HR staff to recognize potential legal risks
Conclusion: A Dual Approach for Success
To ensure your organization remains compliant, HR policies must go hand in hand with strict adherence to employment laws. While policies provide internal guidance, they cannot replace the employer’s legal obligations. HR professionals in Canada must be diligent in understanding and meeting these requirements to mitigate risks and foster a workplace that is both legally compliant and supportive of employee well-being. Complying with your internal policies is not sufficient to ensure compliance with the law.
By doing so, you will not only protect your organization from legal pitfalls but also build a stronger, more transparent, and fair workplace culture.
Compliance Works Helps HR Teams Understand and Draft HR Policies
HR Policies are a vital component of HR compliance, but they must be be viewed as one piece of the HR compliance puzzle. Understanding policies in the context of an employer’s overall legal obligations is critical. Compliance Works helps HR teams understand and draft HR policies by providing:
- Easy to read summaries of all legal requirements
- Checklists that identify all legally required policies
- Email notifications of changes in the law
- Sample policy language to help draft legally required policies – Coming Soon!
Contact us to Request a Demo or email us at info@complianceworks.ca to learn how a subscription to Compliance Works can help your HR team succeed.
