As our population becomes more technology dependent and urbanized, we are increasingly adopting more sedentary lifestyles than our ancestors. One of the consequences of using our bodies less and our brains more is a host of negative health outcomes, including musculoskeletal issues from being hunched over screens for most of our waking lives.
Thankfully, a new generation of entrepreneurial chiropractors and physiotherapists have sprung up across our cities to help teach us to sit up straight and activate our glutes. But as with most small businesses in Ontario, there are unique employment law issues facing chiropractors and physiotherapists which they should be aware of.
Contractors or Employees?
For clinic owners, how do you want to organize your staff, including other practitioners? If they are employees, you have full control over how they perform their tasks, and you can compel them to attend staff meetings, wear uniforms and generally treat patients in line with your specific protocols. But the corollary is that employees have a host of entitlements under employment law legislation and at common law, especially when you want to end the relationship.
If your practitioners are contractors however, they don’t have access to any of the statutory entitlements afforded to employees, such as vacation pay, overtime and termination pay. All of your respective obligations to each other will be that which you negotiate in a contract. On the other hand, you will have minimal authority to control how your contractors perform their job when they perform it, and they will be free to treat other patients outside of the clinic.
If there is ever a dispute about whether someone is an employee or contractor, our courts care more about what the relationship looks like in practice than what you actually call it.
There is also an emerging category of dependent contractor which courts will recognize when a contractor is exclusive and financially dependent on your clinic. This characterization may arise if the practitioner does not do work outside of your clinic. If a contractor is characterized as a dependent contractor, they could have significant termination entitlements under the common law, even if they are not your employees. It is important to address these factors at the outset of the relationship with well-written contracts.
Restrictive Covenants
Whether a clinic has employees or contractors, often times your most valuable proprietary interests are your patients and referral partnerships. No clinic wants to have a practitioner leave to a competitor with half of the clinic’s book of business and exclusive referral partners.
For the practitioner, however, they do generally have the right to earn a livelihood and patients ultimately can determine where to take their business in a free market.
There is a compromise to be drawn between protecting a clinic’s business and allowing a departing practitioner to earn a livelihood. This should be negotiated up front with well-written contracts and Non-Solicitation or Non-Compete provisions.
Whether you are a clinic owner deciding how to organize your workforce and protect your book of business, or a practitioner looking to join a new clinic, we would be delighted to assist you.
