Posted on

December 2025 – HR & Employment Law Review

This was a challenging year for many, which I deeply hope changes for the better.  I am more grateful than ever for the peace and health I enjoy, and that we mainly do in Canada. 

Here is a summary of some employment law and ESG (yes, I said it, but am adopting new language…) updates from recent months, things I learned or was reminded of, with some practical tips and uplifting message if you make it to the end!    

Employment law updates – legislation and recent cases

Note that most of the legislative updates referenced below are required for employers with 25 or more employees, but any employer can follow them as recommended practices. 

  • Reminder about the ON job posting requirements effective January 2026:  Must include expected compensation for the position within a range of $50,000 (unless salary is greater than $200,000).  Employers can no longer require Canadian experience.  They must specify if the posting is for an existing opening.  They must also specify any use of AI to screen, assess or select candidates.
  • Also:  Any candidates interviewed must be notified if a position decision is made.  Documents in relation to any postings must be retained for 3 years.  That includes the posting, all applications and correspondence with applicants. 
  • Equitable hiring practises:  In the Horne case, the Ontario Human Rights Tribunal found that an employer can explicitly seek to hire members of a disadvantaged group(s) if it can demonstrate the rationale (in this case gender under-representation). On the candidate side, self-identification as being a member of a disadvantaged group(s) is lawful if voluntary (and presumably true).
  • Quebec has passed legislation requiring employers to prevent and control workplace psychological/sexual harassment, including training and risk identification. Other updates include the Health & Safety rep playing a more active role, and privacy legislation. French language requirements:  Employers with more than 25 employees (in Quebec) must be certified with the office of French language and meet various requirements over time.
  • Employers have a duty to investigate a harassment claim, even if the offensive conduct happened off duty and/or the offended employee doesn’t want to file a formal complaint. In the ON Metrolinx case, the employer was informed of offensive language used by employees in a private WhatsApp group, proceeded with an investigation, and fired 5 employees for cause. An arbitrator overturned the decision and had the employees reinstated. But the ON Court of Appeals overturned that decision, finding that an employer has a duty to investigate, even in the absence of a complaint, and off duty conduct can still impact employees, as a matter of workplace health and safety. 

Employment agreements and terminations

  • The common law (case law) goal posts on termination provisions in employment agreements are shifting, but there are still risks to their enforceability.  Termination clauses can still be struck due to problematic language, and common law notice may apply, even if the challenging employee is terminated for reasons other than the offending language.
  • Since the Waksdale case in Ontario, the law stands that an employer cannot provide for less than ESA notice in a termination for cause (unless explicitly stated it would apply in the event of wilful misconduct). Since the 2024 Dufault case, the language “at any time” in a termination clause is problematic due to some unlikely but possible circumstances, such as termination during a statutory leave. 
  • However, recent cases in ON and BC indicate that some judges will uphold ESA termination clauses when, if read as a whole, the intent is clear. This commonsense approach does not eliminate the risk entirely though. Bottom line is employers should ensure their contract clauses are enforceable based on current law, and try to avoid any other possible pitfalls.

Other cautions for employers:

  • Based on the Adams case, note that an accepted verbal offer or terms letter could be interpreted as an employment agreement (!). The follow-up employment agreement must have additional consideration, even if signed on the same day.  If you must provide a terms letter, it is recommended to write on it something like, “this is just for information purposes, not an offer for acceptance; agreement to follow”.
  • There has been an uptick and aggravated and punitive damages in wrongful dismissal cases, even involving the administrative side of terminations.  Damages have been awarded to terminated employees whose employers made errors or were late paying ESA notice and/or issuing the Record of Employment (ROE).  As always, employees should be treated with dignity and respect at all times, including every stage of the termination process, if applicable.

Immigration

  • Employers can ask job candidates if they are eligible for employment, not just in Canada, but at their organization (i.e., not tied to another organization) and can make that a condition of employment in their employment agreement.
  • Employers can ask for proof of eligibility documentation after their offer is accepted (if the work permit is temporary or there is some other issue, they can then do something).  Note that a social insurance number (SIN) is not proof of employment eligibility – it just allows for taxation.
  • An employer can’t make a job candidate ineligible for employment, but there is no obligation to assist with their status.
  • Employers should have a policy about whether they will assist with permanent residency or work permit extension if, e.g., their work permit is expiring, they had good performance reviews, they commit to remain with company, and/or are a key employee at management discretion (e.g., not able to find their skill set in the marketplace.)  An employer can include language that they have the right to claw back on PR fees (not work permit fees) if the employee leaves within 2 years, for example.
  • Date of the application must be before the initial work permit expires. Employee has that information, not the employer.  The immigration website shows over 200 days to process extensions. The SIN renews when the work permit renews.
  • Onus is on the employee if the application is late, and that can be considered frustration of contract.  Refusal of the extension can also cause frustration of contract.

Leaves and Accommodation

  • Updates:  Ontario now has a long-term illness leave, and employers can no longer require a doctor’s note for short-term leave.
  • Employers can ask for information though, especially restrictions, so they can accommodate their employee’s health concerns.  It is recommended to have a policy for this and a standard questionnaire that goes to the health professional via the employee, noting the possible consequences for failure to participate.
  • Caselaw still affirms that employers have a duty to assist/cooperate with a statutory leave request, have back-and-forth discussions with the employee and consider options. Employees have a duty to participate in the process, and do not have a right to their accommodation of choice. The employer can choose from options.
  • Family status – needs must be accommodated, not preferences.  Espinosa v Napanee

Status of ESG & DEI

Most of my clients are too small to be reporting on Environment, Social, Governance (“ESG”) or launching formal Diversity, Equity & Inclusion (“DEI”) initiatives. However, I am appreciative that they are aware of and follow the principles of both, and both are areas of ongoing interest to me. 

  • I was very relieved to hear that, contrary to news of backlash, ESG is not dead. By many accounts, it is evolving, adapting and re-branding to the more palatable and encompassing terms like sustainability, inclusion and governance.  
  • Europe is still the most advanced in these areas, both in government and corporate realms. US is the most resistant, particularly at the federal level, but initiatives still happen at the state and corporate level because data shows that it’s good for business, especially in the long term, and preferred by constituents in some areas. Canada still falls somewhere in between Europe and the US. 
  • ESG, now more accepted as sustainability, has evolved from sweeping goals and values to more concrete terms such as: what are you measuring?  how is that tied to risk and performance? what are the controls? what is material to the business?  Goals have shifted from aspirational to operational, and there is increased scrutiny around greenwashing.
  • Sustainability measures are more technical and data driven, i.e., aligned with what boards and management need to make decisions.
  • Canadian companies operating in the US are being more strategic, nuanced and targeted to adapt to jurisdictional compliance requirements and local perceptions. Eg, California measures different things than Texas. 
  • There has been a shift from advocacy more to risk management. ESG was moving to a harmonized approach, e.g., reporting, but has become more regionalized.

Legal developments in Canada (ESG/Sustainability)

  • There has been a shift from soft expectations to hardening rules, laws and regulations, such as supply chain transparency and climate disclosure (e.g., child labour, environmental permits, emissions disclosures) 
  • Growing aversion to greenwashing is showing up in law. Companies can incur significant fines for misleading conduct (to more than offset the benefit).  E.g., challenges to Keurig’s single use pods not being accepted by most recyclers; Dollarama bags not being compostable. Burden of proof is on the business to substantiate its claims with evidence of testing and reporting.

Recommendations for multinational companies:

  • Invest in data and controls. ISSB standards are the best global baseline – a common language, metrics and governance structure. 
  • Collect data once, package it differently, customize locally for legal compliance and cultural norms.

Status of DEI (or EDI or Equity or Inclusion etc.)

  • DEI is not dead because the issues are not – e.g., income, gender and racial inequality. Companies should and want to make their employees feel included.
  • In Canada, DEI is intrinsically linked to human rights laws and multiculturalism policies of the 1970’s, the Charter of Rights and Freedoms, the Truth and Reconciliation Act. Since the uncovering of residential schools, there is deeper commitment to indigenous reconciliation at government and corporate levels, beyond land acknowledgements to more consultation.
  • Historical context in the US is very different, as is the basis for legal challenges.  Reverse discrimination cases there are a backlash against former affirmative action programs, which were put in place to address wealth disparities and segregation due to the abolishment of slavery, and support equal education and employment. Those initiatives have started to be dismantled in recent years.
  • Companies can treat backlash to DEI as a passing circumstance. Some still commit to equity-based programs, despite political shifts or surges or declines in popularity, because of their inherent value to the business.
  • Changing market and political sentiment around DEI is occurring more in the US.    Companies may now incur risk by engaging in certain programs, but not engaging can create other risks, like operational, reputational etc. 
  • Hiring quotas are ok in Canada, not the US, but awareness training is acceptable in the US.

I learned a new term: “greenhushing,” where the company does DEI initiatives but keeps it quiet to avoid triggering backlash. Hopefully that sentiment shifts. These initiatives are good for business and employee engagement, if thought out and done well.

Recommended components of Equity/Inclusion initiatives:

  • Start with data and respond to actual needs – e.g., an employee survey with external consultant to identify and address what the workforce feels and perceives, then develop a focused, analytical program to alleviate risks, with short term responses and a multi-year strategy.
  • Have stakeholder engagement at all levels (leaders, managers, staff) and invest in resources, budget, and a team to implement.
  • Measure success via survey or other KPI, and have consistent communication with data to support.

A few final thoughts…

  • When you start to get down because all the news you get or consume is negative, remember that much of the good stuff going on isn’t reported, and try to seek that out too. 
  • Do what you can at a grassroots level – such as volunteering for a cause you care about.  It’s something good within your control, and a win-win.   
  • Take a walk in nature whenever possible, preferably with a dog or a good friend. 
  • Enjoy the holidays – whichever and however you celebrate, with family and friends, and have a peaceful, safe, happy and healthy new year! 

Note: My blog contains a general overview of legal cases, updates and perspectives from a variety of sources, and is not intended to be relied upon as legal advice or opinion. Laws may change and should be interpreted in their context at the time. It is strongly encouraged to consult with an employment law professional for situation-specific advice.

Thank you to Aird & Berlis, Littler and Blakes for your newsletters, webcasts and in person (finally!) events, from which most of this content was drawn.

Posted on

HR and Employment Law Updates – 2025

Below is a sampling of important legislative updates (primarily to the Ontario Employment Standards Act) and recent ON cases pertaining to terminations and termination clauses. 

Legislative updates

In 2024, three Ontario “Working for Workers” laws (Bills 149, 190 and 229) were enacted and will come into force at various dates in the coming year. These bills amended the Employment Standards Act (ESA), the Occupational Health and Safety Act (OHSA), and the Workplace Safety and Insurance Act, 1997 (“WSIA”), as well as other work-related statutes.  So it’s a good time for employers to review their practices and policies to ensure compliance with new legislation coming into place. 

June 19, 2025 – New Long-Term Job-Protected Leave (ESA)

Bill 229 amends the ESA to include two new long-term job-protected leaves. One of these – the new 27-week Long-Term Illness Leave – will come into effect June 19, 2025. This leave allows an employee who has been employed for 13 consecutive weeks to have up to 27 unpaid weeks of leave if they will not be working due to a serious medical condition. The employee must advise the employer in writing and provide a note from a doctor, RN, psychologist or other practitioner specified in regulation. That note must include the period of time that the employee will be off work, and the employee is only entitled to take leave for that period, unless extended under certain conditions.

July 1, 2025 – Required Information for New Employees (ESA)

As of July 1, 2025, employers with 25 or more employees will have to give new employees certain information before or when the employee commences their employment, preferably in their employment contract. This information includes the legal name of the employer and its operating or business name, complete contact information for at least one contact, and logistical information like where the employee will commence work, their expected hours of work, their starting compensation, and their pay period and pay day.

July 1, 2025 and January 1, 2026 – Constructors and Employers to Keep Clean Washrooms (OHSA)

As of July 1, 2025, constructors and employers must keep washrooms for workers in clean and sanitary condition, and keep records of washroom cleaning which are maintained and made available. As of January 1, 2026, the dates and times of the last two cleanings for each facility must be posted physically near the washroom or be available electronically (assuming workers get instructions on accessing the records).

January 1, 2026 – Changes to Job Postings, Including Salary Transparency (ON)

On January 1, 2026, employers with 25 or more employees will have to comply with new obligations relating to publicly advertised job postings and related application forms:

  • Pay transparency. Job postings must include information about the expected compensation for the position or the range of expected compensation (within $50,000) for the position, where the expected compensation (defined as “wages” under the ESA) is less than $200,000 annually.
  • AI disclosure. Job postings must disclose whether the employer uses artificial intelligence (AI) to screen, assess or select applications for the position.
  • Canadian experience. Job postings and application forms must not include any job requirements related to Canadian experience.
  • Vacancy. Job postings must include a statement disclosing whether the posting is for an existing vacancy or not. 
  • Follow up with interviewees. An employer who interviews an applicant for a publicly advertised job posting must, within 45 days of their last interview, inform the interviewee as to whether they have made a hiring decision for the posting.
  • Information retention. Employers will have to retain every publicly available job posting and related application form, plus records of what information they provided to candidates, for 3 years after the posting is removed or the information is provided. 

Note that a job posting is not “publicly advertised” for the purposes of these requirements if it is:

  • A general recruitment campaign or general help wanted sign, not advertising a specific position
  • An internal posting for existing employees only, or
  • A posting for a position for which work is to be performed outside Ontario

While these new recruitment rules are currently unique to Ontario, a variety of pay transparency rules for recruitment have recently been introduced in BC and eastern provinces.

Caselaw updates

Invalidity of “At Any Time” Language in Termination Clauses

In the 2024 case of Dufault v. The Corporation of the Township of Ignace, the Ontario court held that an employment agreement’s termination provisions contracting out of the ESA by reserving the employer’s right to terminate without notice “at any time” and at the employer’s “sole discretion” were unenforceable. The court’s reasoning was that such language might allow an employer to terminate employees while they are subject to statutory protections, such as a statutory leave or after making a protected complaint about working conditions.

This decision has many employers and counsel scratching their heads again, given how common such language is in many employment agreements. The Ontario Court of Appeal declined to comment on the matter, deciding an appeal of the case on other grounds. 

An Enforceable Termination Clause in Ontario. In the recent decision of Bertsch v. Datastealth Inc., the Ontario court upheld the enforceability of a termination clause in an employment agreement that limited the plaintiff’s entitlement to only the minimum standards under the ESA. The Court held that the clause, while wordy, was lawful and unambiguous, and dismissed the plaintiff’s claim for wrongful dismissal common law damages. The clause guaranteed all minimum statutory entitlements and excluded common law reasonable notice.

Employer Bad Faith in Termination

In Krmpotic v. Thunder Bay Electronics Limited, the Ontario Court of Appeal upheld a $50,000 aggravated damages award against the employer. The court found that the employer acted in bad faith by dismissing an employee just two hours after he returned to work after a lengthy medical leave, causing the employee mental distress. When assessing the award for aggravated damages, the trial judge concluded that the Company had breached the duty of good faith and fair dealing. Notably, this award was granted and upheld without supporting medical evidence, highlighting the courts’ willingness to penalize employers for bad faith conduct during terminations. ​

Takeaways

Employers will want to review their standard employments, policies, job postings and application forms to ensure that they comply with current and upcoming legislation.

The cited cases underscore the importance for employers to draft clear, ESA-compliant termination clauses, and to handle terminations with fairness and in good faith to avoid significant legal repercussions. 

Note: My blog contains a general overview of legal cases, updates and perspectives from a variety of sources, and is not intended to be relied upon as legal advice or opinion. Laws may change and should be interpreted in their context at the time. It is strongly encouraged to consult with an employment law professional for situation-specific advice.

Posted on

New Year HR and Employment Law Updates

On September 14, 2023, the Federal government further extended deadlines for Canada Emergency Business Account (CEBA) loan repayments, issued during 2020 and 2021 to small businesses and not-for-profit organizations to help cover their operating costs during the pandemic, with partial loan forgiveness offered in exchange for timely repayment.

Repayment by the new deadline of January 18, 2024 (or March 28 if a refinancing application is submitted prior to January 18 at the financial institution that provided their CEBA loan), will result in loan forgiveness of $10,000 for a $40,000 loan and $20,000 for a $60,000 loan. As of January 19th, outstanding loans will convert to 3-year term loans, subject to interest of 5% per year, with the term loan repayment date extended an additional year to December 31, 2026.

The following are some interesting trends and updates in Ontario employment legislation and caselaw:

Temporary Help Agencies (THA’s) and Recruiters must be Licensed

  • A temporary help agency (“THA”) or recruiter operating in Ontario is required to have a licence to operate. The original January 1, 2024 deadline was extended to July 1, 2024 for a THA or recruiter in Ontario to have a valid licence, or have submitted a licence application, in order to operate. Penalties may apply for non-compliance, and an organization may also risk penalty if it knowingly hires an unlicensed recruiter or THA. 
  • Note that licenses are not required for employees of organizations who recruit for other organizations. In that case, the organization requires a license, not its individual employees. Nor are licenses required for employees who recruit solely for their employers (e.g., recruiters in a bank).

Working for Workers Act, 2023 (“Bill 149”). If enacted, Bill 149 will amend various work-related statutes, specifically, the Employment Standards Act, 2000, Digital Platform Workers’ Rights Act, 2022, Fair Access to Regulated Professions and Compulsory Trades Act, 2006 and Workplace Safety and Insurance Act, 1997. Highlights to be prepared for, if enacted:

  • Employers will be required to disclose salary range information on job postings.
  • Employers in regulated professions will be prohibited from requiring “Canadian experience” (only) as a qualification for registration unless an exemption from the prohibition is granted in accordance with the regulations. 
  • If a prospective employer uses AI to screen, assess, or select applicants for a position, they must include a statement disclosing such use of AI in any job posting. This requirement may be subject to exemptions in the regulations.
  • Employers will be required to keep all postings and applications for 3 years in order to prove the above if needed.
  • Employers will not be able to use digital payment for tips on a platform which charges fees to the employee to access. Nor will establishment owners be allowed to participate in pooled tips unless they work alongside their staff in a similar capacity.  Employers will also be prohibited from deducting employee wages for losses incurred by customer behaviour such as theft, dine and dash, not paying for gas etc.
  • The vacation pay schedule must be set out in the employment contract for agreement by the employee if not paid out in advance of their vacation time via lump sum.

Potential Exposure Expanded in Wrongful Dismissal Cases

  • Caselaw continues to be upheld that a termination clause that provides in any way for less than the statutory minimum notice will be struck down in its entirety.  In that event, common law applies, and factors such as age, job level, length of service etc. are considered in determining the notice period a wrongfully dismissed employee is entitled to, with 24 months being the historic cap for C-suite or niche employees in exceptional circumstances.  In recent cases, the ON Court of Appeals has upheld longer notice periods for reasons such as age, longer service and specialized skills, considering the decreased likelihood of re-employment for these mid-level employees near retirement age. See Mildwid v IBM,  Lynch v Avaya.

Independent Contractor Agreements

  • Beware of engaging with an independent contractor for a fixed term. In a recent case, the company terminated the contract early and was required to pay for the balance of the term because there was no termination clause.  Because of their exclusive relationship, it was found to be more subject to employment law, and the contractor had no duty to mitigate as per typical contract law.  Monterosso v Metro Freightliner. 
  • Takeaway:  It is important to have an early termination clause in any fixed term agreement. Consider using an indefinite term contract with a termination clause.

COVID Decisions

  • Vaccine policies are dwindling but still being upheld when deemed necessary to keep employees and public safe, such as in a large hospital providing essential services. In a 2023 case, 47 grievances were dismissed in arbitration because vaccination was a condition of employment, therefore known up front, and considered necessary to protect the hospital’s reputation and ability to provide care to the public.
  • Human right exemptions to vaccine policies remain a necessary accommodation if for medical reasons or due to a sincerely held religious belief. It cannot be made up to support a personal preference.  It is expected that employers faced with such an objection will have an exploratory discussion with the employee and try in good faith to come to mutually agreeable resolution prior to any decision to terminate employment. 

More Human Rights – Accommodating Family Status

  • Family status accommodation tests vary by jurisdiction. In relation to requests to alter work arrangements in relation to childcare, typically the employee must demonstrate that the accommodation is genuinely needed and they have been trying without success to find a suitable alternative, including various forms of childcare, family members etc.  
  • As with other requests for accommodation under human rights grounds, the employer is obliged to give accommodation that is needed, not just what is wanted by the employee.  These discussions are not easy, but the employer can ask and explore what has been tried, and can decline a request that is simply a preference.  Ideally, mutual agreement can be reached for what is appropriate accommodation, the intended duration and what happens if it doesn’t work, and those considerations are then documented in an agreement.   
  • It is recommended to have a policy on family status accommodations, particularly with the increase in employees working from home. For example, it may be appropriate to specify that remote workers are expected to have a quiet, distraction-free workspace where they are able to focus on their work during their working hours. Remote workers may be expected to arrange for childcare if needed during working hours, with unplanned, temporary circumstances (like a school closure or sick child) accommodated on an exception basis.  Note that any changes to policy should be communicated with advance notice to allow impacted employees the opportunity to discuss with the employer if needed, and/or make any necessary arrangements.   

Note: My blog contains a general overview of legal cases, updates and perspectives from a variety of sources, and is not intended to be relied upon as legal advice or opinion.  Laws may change and should be interpreted in their context at the time. It is strongly encouraged to consult with an employment law professional for situation-specific advice.

Posted on

Making a Difference in 2024

Happy new year everyone!  Long time, no blog… My consulting practice and volunteer director work has shifted more to governance in the past year. I also traveled and spent a lot of time in the woods (literally, not figuratively!).  I will provide an update shortly on current trends in Ontario employment standards and common law, but decided to make this piece a little more personal as we think about and set targets for the new year.

Out of interest in the topic, I’m in the process of obtaining ESG certification through Competent Boards, an online program based in Europe but including US and Canadian speakers.  Europe is miles ahead of the rest of the world in climate and other forms of ESG action and regulation, but helping set the bar in the global economy.

I’m currently learning about the 17 Sustainable Development Goals (SDG’s) from the UN, ratified in 2015 by 193 countries with a 2030 target.  

When we read or listen to the news and some politicians on this side of the pond (ocean), it sounds like engaging in practices to stabilize carbon emissions, save the oceans and forests, reduce global and local poverty and food insecurity etc. is not economically viable and needs to be delayed. But data is indicating that investing and engaging in these practices is making companies more profitable.  And many experts are indicating that delay on the environment is no longer possible if the world is to avert further climate crisis and related fallout. 

We just learned that the global temperature rose faster than expected in 2023. https://www.cbc.ca/news/science/2023-hottest-year-on-record-1.7077959

I sometimes get discouraged by the news, or discussions with people who are skeptical about climate change or “woke” policies. But it has been encouraging and inspiring to me to take this course, to attend an ESG data conference in Toronto this past fall, and to hear about the many startup organizations at MaRS, where my sister works. There is a lot of activity happening behind the scenes by people who are not taking up all the airwaves, but doing good work for the betterment of the world or society, some for profit, some not. 

Contrary to what we might see or hear on the news, the global economy is focusing more time, energy, and financial investment on environmental and social goals and initiatives. That is a train that organizations who want to continue to attract talent, customers and perhaps even funding don’t want to miss, as more investors and financial institutions are looking more closely at and requiring sustainable and equitable business practices before committing financial support. 

The ESG course challenges participants to consider whether their organization is part of the problem (in which case what can they change or improve?) or part of the solution (in which case how can they gain more funding, partnership and/or scale?).

Call to Action:

If I could wish for one thing for the coming year, besides world peace (literally, not figuratively), it would be for everyone to reflect, on an individual and organizational level, what they can do or contribute to environmental and/or social concerns.

If you are an employee, what idea can you share, or how can you respectfully challenge your employer to change or improve a business or operating practice to make it more sustainable, or perhaps support greater equity or inclusion in the workplace?  If there isn’t an opportunity in the workplace, is there an organization you can make a difference with by volunteering your time and expertise to a cause you feel passionate about?

If you are an employer or entrepreneur, how can you challenge yourself to improve as a leader or manager in guiding or supporting these types of goals, and how will you measure and track success of these goals, ideally created in collaboration with relevant stakeholders? 

Food for thought as we embark on 2024… Wishing everyone, a happier, healthier, safer, and more prosperous new year.

The 17 UN Sustainable Development Goals (SDG’s) targeted for 2030:

https://sdgs.un.org/goals

ESG Defined:

https://www2.deloitte.com/ce/en/pages/global-business-services/articles/esg-explained-1-what-is-esg.html

ESG Investing:

https://www.forbes.com/advisor/investing/esg-investing/

Posted on

Employment Agreements, Terminations and Important Updates to COVID Legislation

Further to my last blog, the Waxdale case remains valid precedent, indicating that an entire termination clause in an employment contract may be struck in a wrongful dismissal case if the “for cause” termination clause is too broad and overreaching.

The significance of just cause terminations is that the employer is not necessarily required to pay notice or severance to the employee. Therefore, it is a high threshold to reach and be upheld. Further, there must be willful misconduct, an even higher threshold, to deny an employee’s ESA entitlements.  

As in most situations, case decisions on wrongful dismissal are fact and context specific, considering factors including the culture of the workplace, power imbalance among the parties, relevant policies and training, the severity of the action or actions, employee accountability, investigation process and outcomes, and reasonable alternatives to termination as applicable.

Just cause for dismissal is supportable where the employee’s behaviour violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee’s obligations to his or her employer. 

A single act of harassment can justify cause. In Render v ThyssenKrupp Elevator, the respondent had no intent to engage in sexual misconduct, but also did not appear to understand or acknowledge the impact of his behaviour.  The court agreed with the employer’s position that the employee had no appreciation of his actions and could not be confident it wouldn’t be repeated. Termination for cause was upheld. Factors including workplace culture, imbalance of power and circumstances of the incident also played a role in the decision.     

In Hucsko v. A.O. Smith Enterprises Ltd., the Ontario Court of Appeals upheld that a series of acts of verbal harassment, along with other factors including imbalance of power and lack of acknowledgement, constituted grounds for just cause termination. 

However, in McKinley v BC Tel, where an employee withheld information from his employer about his medical condition and related treatments, the Supreme Court held that the punishment or sanction must be proportional to the severity of misconduct, and in that case, while the misconduct was intentional and harmful to the employer, for cause termination was too severe of a response.  The court found that the employee’s dishonesty was not in a manner that undermined, or was incompatible with, his employment relationship.

COVID-related cases

Johnson Controls v Teamsters illustrates that context matters, where a just cause termination of a long service hospital employee for violating COVID screening protocols was supported.  The employee came to work with upper respiratory symptoms over several days but denied it in screening, and had COVID.  The intentional dishonesty, particularly in the health care setting, was sufficient to uphold the cause termination. The employee’s prior record was also a factor.

However, in Tenneco Canada Inc. v United Steelworkers, an employee had a pre-existing respiratory condition, denied symptoms in workplace screening, and was terminated for violating the screening protocol. The arbitrator concluded that although the employee’s conduct was very serious, it did not warrant the penalty of discharge. Mitigating factors included the employee’s acknowledgement and likelihood not to repeat the behaviour. The employee was reinstated with no backpay.

Takeaways:

– Employment agreements should be reviewed by an employment law professional and updated if needed to ensure the termination clause is enforceable.

– Note that employment agreements limiting the rights of existing employees cannot be amended without proper consideration (something of value such as a raise, promotion or extra vacation etc.) and acceptance (signature), so timing and approach to updating existing employment contracts is critical to the receptivity of staff to the request.

– Employers have a statutory duty to ensure a safe workplace, free from bullying, harassment, violence and discrimination. Make sure relevant policies are up to date and clear, including procedures for raising concerns and investigations, consistently reinforced, and include training.

– Employers also have a duty to investigate – whether internally or by a third party – claims of harassment or discrimination . If there is a finding of that or other misconduct, several factors should come into play to determine appropriate consequences.  Termination may be appropriate, noting that just cause is a high but not insurmountable threshold. There may be alternatives to termination in some circumstances.

– In determining whether there is a reasonable response to misconduct besides termination, first there must be confidence the employment relationship can continue. Consider all possible disciplinary actions and their proportionality in the context of the severity of the behaviour(s), policy language, employee’s service and record, outcome of investigation, impact of the behaviour and the employee’s response (i.e., is there is a sincere apology from the employee, recognition that the conduct was wrong, and assurance it won’t repeat). 

– Reasonable alternatives to termination may include leave, suspension, training, or different roles or reporting structures.    

Note: My blog contains a general overview of legal cases, updates and perspectives from a variety of sources, and is not intended to be relied upon or taken as legal advice or opinion.  Laws may change and should be interpreted in the context of their circumstances at the time. It is strongly encouraged to consult with an employment law professional for specific advice in any particular situation.

—-

Current status of ON Employment Standards related to COVID

The following are some important updates to COVID-related ESA rules, as the virus and related policies continue to evolve this year.

Paid Infectious Disease Emergency Leave extended to March 31, 2023

Paid infectious disease emergency leave (“IDEL”) previously set to end July 31, 2022, was extended again to March 31, 2023.  The Employment Standards Act, 2000 (ESA) was initially amended in April 2021 to require employers to provide eligible employees with up to 3 days of paid infectious disease emergency leave for certain reasons related to COVID-19, such as when an employee is under medical investigation, supervision or treatment, or is required to provide care for a specified family member. Additional paid leave is not required if the employee’s absence was already covered by the company’s paid leave policy.

Eligible employers can apply to the Workplace Safety and Insurance Board to be reimbursed for these payments of up to $200 per day for 3 days for each employee who takes paid IDEL. Individual or grouped claims must be made within 120 days of the date the employer paid the employee, or by July 29, 2023, whichever is earlier. 

Unpaid IDEL continues

Unpaid IDEL will continue to be available as an ESA leave for as long as COVID-19 is designated as an “infectious disease”. Employees will continue to be able to access Unpaid IDEL where the employee will not be performing work for one or more of the following reasons in relation to COVID-19:

  1. The employee is under individual medical investigation, supervision or treatment.
  2. The employee is subject to an order of a medical officer of health or a court under the Health Protection and Promotion Act.
  3. The employee is in quarantine or isolation or subject to a control measure, including self-isolation, that is undertaken because of information or directions issued by a public health official, qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council or a board of health.
  4. The employer directs the employee to stay at home because of concerns that the employee might expose other individuals in the workplace to the designated infectious disease.
  5. The employee is providing care to any of the specified individuals listed above, including because of closures of schools and daycares.
  6. The employee is directly affected by travel restrictions preventing the employee from returning to Ontario.
  7. Any prescribed reason.

Employers should continue to assess all requests for unpaid IDEL on a case-by-case basis, and can ask for “evidence reasonable in the circumstances,” “at a time reasonable in the circumstances,” to verify the unpaid IDEL, but are prohibited from requiring employees to obtain medical certificates to justify the leave. 

Temporary ESA rules no longer in effect

“Deemed IDEL”, the temporary relief measures from the termination and severance provisions of the ESA, ended effective July 30th. Implications are as follows:

  • The termination and severance rules under the ESA related to layoffs will again apply where an employee’s hours of work have been reduced or eliminated, or an employee’s wages have been reduced, for reasons related to COVID-19.
  • Certain actions of an employer made in response to COVID-19—a temporary reduction or elimination of an employee’s hours of work, or a temporary reduction in an employee’s wages—will no longer be deemed not to be a constructive dismissal.

Employers should carefully consider possible impacts of these changes for any COVID-related staffing decisions going forward, and keep aware of any other legislative amendments resulting from changes in public health.

https://www.ontario.ca/document/your-guide-employment-standards-act-0/infectious-disease-emergency-leave

Posted on

HR updates: Right to disconnect, vaccine policies, employment agreements

As we look forward to what we hope is the light at the end of the pandemic tunnel, we have started to see some easing of restrictions in Ontario and other jurisdictions as key public health and health system indicators starting to show improvements.  Meantime, a variety of government programs and legislation have ended, extended or come into effect.

On October 23, 2021, the federal government officially ended the Canada Emergency Rent Subsidy and the Canada Emergency Wage Subsidy, replacing them with two more specific and focused subsidy programs for businesses:  The Tourism and Hospitality Recovery Program (Tourism Program) and The Hardest Hit Recovery Program.

The Infectious Disease Emergency Leave (IDEL) has been extended again to July 31, 2022. The IDEL is an amendment to the Employment Standards Act, 2000 (ESA) that allows for non-unionized employees, whose wages or hours are reduced or eliminated due to COVID-19, to be placed on a job-protected leave and not be deemed laid off or constructively dismissed under the ESA.  However, it may not protect against a common law claim of constructive dismissal, absent a contractual right to lay off the employee. If IDEL is not further extended, the usual rules of the ESA will resume after July 31st, including the permitted timeframes for temporary layoffs.

Remote work has become the norm in Ontario for businesses that don’t require employees to be on-site, which has numerous advantages and disadvantages, for both staff and management.  Some prefer the flexibility afforded from working from home, while for others, the novelty has worn off and “pandemic fatigue” has set in.  Some workers hired since the pandemic have never met their colleagues or management face to face.  I’ve noticed in my practice many challenges around communication, performance management and relationship/team building becoming magnified by the separation and perhaps other stressors caused by the pandemic.  It’s been a very challenging time, as we all know.

The Working for Workers Act, Bill 27, was enacted in December, 2021. In response to increasing reports of employee burnout, mental health concerns and the overall impact the COVID-19 pandemic has taken on Ontario workers, it includes a “Right to Disconnect” law to address the blurring of the lines between work and home and being “accessible” at all hours of the day.

Requirements:  Employers with 25 or more employees as of January 1 of any given year (including part time and casual) must have a written policy for all employees with respect to “disconnecting from work” (defined as “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work”) by March 1 of that year. Except employers have a grace period this year until June 2, 2022.  Employees should be given 30-days’ notice of the policy introduction or any changes.

The Act gives employers latitude to design a policy that suits their workforces and their operational needs.  So far, there are no exemptions for any class of employee – e.g., management, Sales, IT, shift or event workers, or employees with flexible work arrangements, for whom connecting after normal work hours is typical and sometimes desirable or necessary. However, according to separate guidance as to what should be contained in the policy, it is permissible to tailor the policy to different groups. 

For example, the policy could lay out a general expectation to all staff (including management) that no meetings should be scheduled, and no emails or voicemails are expected to be responded to after a certain time on weekdays or on weekends or statutory holidays.  The guidance does not appear to preclude emails being sent during those times.  Exceptions to after-hours meetings or responses it appears could be made in certain circumstances (e.g., emergency situations; client, business or operational needs; agreed accommodations or work arrangements etc.) which would likely be enforceable if reasonably necessary or requested by the employee. 

In order to have a useful policy, employers should understand by engaging with staff, either by survey or directly, the type and extent of challenges they face with after hours’ communications, whether due to workloads, managerial pressure or other reasons.  Encourage staff to bring any particular concerns forward to management or HR, in order to proactively address relevant issues and adjust to problematic situations.  These steps should help management to get in front of any issues, tailor the policy appropriately, coach staff and management about expectations going forward, including consequences for non-compliance, and determine how leadership and management will set the tone from the top.  This should help employers avoid challenges from staff once the policy is implemented.  It is advisable as well to ensure that the Disconnecting from Work policy language is aligned with the organization’s remote work policy.

Vaccine policies

There is a vast amount of evidence that vaccines have worked to reduce the spread and severity of infection of COVID 19 and its variants to date.  There is also evidence that vaccine mandates have worked to motivate a higher rate of vaccination in Canada and Europe (The Economist, January 22, 2022).

Toronto’s Medical Officer of Health currently maintains its recommendation that workplaces implement a vaccination policy in which employees, at a minimum, either:

  •  provide proof of vaccination;
  •  submit written proof of a medical exemption; or
  •  complete a vaccination education course

Although the majority of Canadians support COVID-19 vaccination mandates and have voluntarily complied, some employees view such policies as a violation of their human rights. Besides medical grounds, there is also a creed/religion exemption.  The latter is a murky area, but guidance from the HR Commission is that personal preference and individual beliefs are not protected grounds justifying a refusal to be vaccinated. 

An employer is entitled to ask an employee requesting accommodation for proof of medical exemption from a licensed health practitioner, or to ask questions about the basis for the religious exemption, ie., what about that religion prevents them from getting vaccinated.  If the organization questions the validity of the request and prefers not to be in the position of adjudicating it, outside services are available (for a fee) to independently assess requests for exemptions on human rights grounds.  Alternatively, they can contact employment counsel. 

Some vaccination policies include significant consequences, such as unpaid leaves or even termination in the absence of a human rights accommodation. Termination may be considered overreaching if challenged, unless other methods of compliance failed and/or the type of work or workplace makes accommodations unreasonable.  

Arbitration decisions so far appear to support strict enforcement of mandatory vaccination policies, as long as they are “reasonable” in the circumstances, including such factors as the industry, the workplace, the language of the policy, severity of consequence, and the threat of the pandemic at that point in time.  So far, case law is mainly limited to unionized, high risk settings.

It is recommended to include clear expectations in any policy and why they are there – i.e, protection of co-workers, clients, public safety etc., and continue to assess your workplace risk including factors like:  the ability of workers to maintain distance from each other and clients/the public while working; physical barriers, good ventilation and PPE; staff vaccination rate; the ability to provide accommodation, such as greater separation, continued masking, testing, remote work; and of course guidance from local and provincial public health officials.

Some employers have chosen testing as an alternative to mandatory vaccination.  However, this has been complicated by a shortage of rapid tests, confusion over where and how to provide it, and who pays for it.  Typically, the advice has been that if the employer is offering testing, they pay for it; if not, and if an employee is refusing to show proof of vaccination that has been offered for free, but the employer is allowing proof of a negative test to enter the workplace, the employee pays for it since it is their preference.

It will be interesting to see how vaccine policies will be enforced or challenged in the coming months, if the numbers continue to move in the direction of endemic and as government restrictions are lifted in response to facts and data about public health. 

Employment agreements

There are at least two important developments in the past year around employment agreements which should be noted. 

The Working for Workers Act, Bill 27 discussed above, also prohibits non-compete agreements, with the exception of employees involved in a sale of business or executives.  These clauses had become less prevalent anyway, as they were often found to be overreaching and not enforceable, while confidentiality and non-solicitation clauses are more easily upheld. 

Termination clauses also require attention to ensure all components are enforceable.  A 2020 Ontario case, Waksdale v. Swegon North America, remains valid precedent for most subsequent cases that all provisions in a termination clause should be read together, and if one portion is statutorily invalid, the entire termination clause fails, even if the offending provision was not relied on in support of a termination.  As a result, “for cause” termination provisions should provide for the possibility of minimum ESA entitlements if there is cause to terminate in the absence willful misconduct, the higher threshold for “just cause” terminations without notice under the ESA.

It is recommended to review and update employment contracts and ensure that possibly offending provisions are removed or reworded accordingly, as they may impact other provisions, including termination clauses.  Note that updated employment contracts may be used with new hires.  Consideration, such as promotion, vacation or salary increase, can be offered in exchange for updating an employment contract for an existing employee.

If you have questions or concerns, please contact me or employment counsel.

Resources:

www.ontario.ca/laws/statute/s21035  (Working for Workers Act, 2021, S.O. 2021, c. 35 – Bill 27)

https://www.ontario.ca/document/your-guide-employment-standards-act-0/written-policy-disconnecting-from-work


https://www.bot.com/Portals/0/PDFs/Vaccination_Mandates_What_Your_Business_Should_Know_Ontario.pdf  

https://www.toronto.ca/city-government/accountability-operations-customer-service/city-administration/corporate-policies/people-equity-policies/covid-19-mandatory-vaccination-policy/

Posted on

Easing Workplace Discontent in Stressful Times

Besides more typical HR work for clients, my practice includes workplace investigations. I have been hired to conduct several workplace investigations this year.  Last year I had none.  So, I’ve been wondering why this year is more fraught with workplace complaints, in both remote and in-person work environments.  A contributor may be that people are frazzled, burnt out and not dealing as constructively with workplace situations as they did in the past. 

In a webinar I attended earlier this year on trauma-informed investigations, it was raised that everyone has gone through trauma in their life in some form and to some degree.  But not everyone has fully healed, and many are experiencing new or reawakened trauma due to the pandemic and/or other world events. 

Legitimate workplace concerns have been raised, but this year seems different and more intense. This past year has been heavy and traumatizing to the general population in many ways, and impacting some more than others very personally, including staff and management.  Some turn to work to keep busy, and may not even realize they are just hanging on below the surface, and perhaps unconsciously acting out, reading negativity into relatively normal interactions or leaking their unconscious biases into the workplace.

First, there is a lingering grief over the injustices and cruelty certain groups have been facing for generations, cracked wide open since last spring.  Positive steps have resulted, but it still seems like an open wound for many that is going to take time to heal, understandably. Members of many groups continue to experience significant trauma, pain and distrust, and exhaustion and overwhelm from processing so many feelings.

As well as the group-specific issues, we are all dealing with the stress of constant shifts in policy and status of a global pandemic, rifts over vaccines and masks, and what this all means to our health and safety, our families and friends, our work, workplaces, work-life balance and culture.  What will back to school be like this year? Will kids be forced to come home due to another outbreak?  Will they be safe?  Will I have the flexibility to work from home?  Will that be productive or distracting?  How will a hybrid model work?  Having all of this uncertainty go on for over a year is also quite exhausting, and we are facing another several months or more of restrictions, shifts and unknowns.

In addition, some may have friends or family members trying to flee a distressed or war-torn country, or recovering from devastating floods, fires, earthquakes or tornadoes.  Some consider global climate issues to be the main existential crisis of our time. 

If you are lucky, these issues may not occupy the front of your mind on a regular basis, but it’s a constant undercurrent for many, and some are dealing with several of these issues simultaneously while trying to have a productive life work and outside of it.  Many who didn’t already have a mental health issue are probably at least dealing with some form of mild anxiety – and hopefully recognizing and managing it effectively.

Work can be a great outlet and distraction from one’s own personal or the world’s troubles. Or it may seem insignificant by comparison, so it can be harder to keep some staff motivated.  Some go the other way, take a lot of pride in their work and feel it’s something they can control.  Therefore, some may not take feedback as easily. You may find people taking feedback more personally or critically than you are intending. You also may not be delivering it as well.

Being busy, impatient or frustrated sometimes as a manager is not harassment.  Neither is reasonable performance management.  However, you may be more on edge, or some staff may be more sensitive and on edge for their own reasons.  Staff’s personal issues are not your fault, but be aware of where your leadership or communication style may benefit from some adjusting to bring greater clarity, lend more of an ear, or ease pressure on staff as needed.  

A pretty consistent theme in investigations is that many people just want to be heard, and once an impression is made it can be hard to change. In the absence of good communication, negative perceptions and issues can snowball due to confirmation bias. Next thing you know, you may be faced with a harassment complaint. 

I believe that if managers or leaders spend more time with staff and really listen to them (assuming they are willing to share which is another issue and can’t be forced), many of them will not become complainants.  I am not suggesting to get into staff’s business if they don’t want to share personal information, but if concerns come up and management makes it known that they are accessible and willing to listen, genuinely, some initial uncomfortable conversations can effectively pre-empt larger issues later.

Other things management can do – perhaps obvious but good reminders heading into the next wave:

  • Ensure your staff know they are valued.  Make an effort to compliment and recognize staff more than ever.  And show it, not just tell. Try to find different ways.  Celebrate and reward wins of all sizes. Find ways for staff to socialize, have fun and occasionally blow off steam.
  • Take care of yourself too. Put the oxygen mask on yourself before assisting others, as the saying goes.  As a manager or leader, your role means staff are looking to you for guidance and support. They don’t necessarily realize (or care) if you are struggling to keep the wheels on the bus. Get whatever support you need, so you can help staff get through these difficult times toward your shared goals.
  • Cut some slack in timelines, and accommodate needs, where possible.  For example, distinguish what goals are required from what would be nice to complete this year.  If someone asks to work from home because they are afraid of getting Covid at work or on public transit, want to be home for their kids or just prefer it, you are not required by law to accommodate that request (i.e., those reasons aren’t medical).  However, it may make longer term sense to accommodate someone in the short term, which can be negotiated and put into an agreement with an exit clause if it’s not working.
  • Offer wellness (mindfulness, nutrition, sleep, exercise etc.) programs or allowances, and EAP (Employee Assistance Program – free, confidential counseling from qualified professionals).  Your group benefits plan may also cover a portion of counseling costs if staff want to source their own mental health professionals.  But that benefit is usually limited, whereas EAP is not.
  • Make yourself available and genuinely listen, to a point.  Empathy will probably be the most helpful thing you can offer.  But don’t become therapist.  If it gets too deep, it is appropriate to say, “I’m sorry you are going through this. I believe this topic may be getting beyond my realm of professional expertise and perhaps becoming more personal than I’m comfortable with, but I want to support you to get help.”  Suggest considering EAP, flexwork, maybe paid or unpaid time off, and other appropriate resources staff can turn to, such as family, friends, family doctors, counselors, clergy or other trusted advisors.

Small steps such as this can be greatly appreciated and make people feel heard and valued as a person, not just an employee. That can go a long way towards retention also.

It is also important to manage staff if they are not performing well.  If left unchecked, not properly managing poor or dysfunctional performers can lead to bigger issues in work outputs and drag a team down. Don’t ignore it or be afraid to talk to the person if they’re under stress.  Share the feedback as gently and constructively as possible, and ask them if everything is OK.  If outside issues come up, offer support such as referenced above, but reinforce the performance issues and expectations.  It is up to staff to manage their own health and personal issues so they can perform effectively to the expected level of their job. 

If a claim of harassment or discrimination is made, it is your obligation to get details and look into it.  You may need an independent investigator, but sometimes an inside look will suffice if done properly.

My intent here is to try to help avoid stress and misunderstandings from getting to a breaking point, and remind everyone to demonstrate empathy and understanding as significant workplace shifts will continue for a while.  Check in with yourself. Check in with others. Your staff, culture and business will benefit.

Posted on

Staying Positive and Resilient in the New Year

A year ago today, I was on a girls trip to Barbados. It was a bit more expensive travelling at that time, but it seemed worth it to see in the beginning of a new decade with other successful, independent, entrepreneurial women.  I brought a success planning journal, a book about how to be a bad-a–, and downloaded podcasts.  I/we were going to take on 2020 with gusto, both personally and professionally!

I’m sure many of you felt this way… and then we were all hit by the collective tidal wave called COVID-19.

The posts and memes and sentiments, including mine, about how awful this year was, and we can’t wait to kick it to the curb, are rampant.  There is no way to minimize the toll it has taken on so many individuals, businesses and families.  While vaccines are being approved in record time, it will be months, many months, before the majority of us are immunized. Meantime, we are breaking records we don’t want to be breaking, and being asked to stay home and not do anything for another month, which may be extended based on the numbers.  Not to be a bummer, but let’s remember that this pandemic is not going to magically disappear on January 1, 2021.  It’s important to manage our expectations.

There does seem to be a renewed sense of optimism leading into the new year. It will be important to hold onto that as we enter the next quarter.  There will be highs amongst the lows – some we have to find, some we have to create.  That’s exactly what my most resilient friends and clients are doing.

Before we kick 2020 to the curb, have you taken the time to reflect on what you learned or gained from it?  Have you asked your staff (and your friends, family members, clients…) the same question?   It may be well into 2021 before we have fully processed that, but here are some of the insights I have heard from others or just observed:

– More gratitude – for health, good fortune, kindness, family and friends, people in your life you can count on, selfless volunteers and front line workers!

– Greater empathy – for those less fortunate socioeconomically, as well as marginalized individuals and communities impacted by institutionalized racism or bigotry.  2020 was a gigantic and long-overdue wake-up call.  It is encouraging to see more and more new voices in business, media and other sectors, particularly black, indigenous and LGBTQ+ members of our society, their issues staying on the table and greater equality being addressed.

– Greater appreciation for our communities and environment.  While we can’t gather, or go to restaurants or shows or sporting events, this year has really shone a light on our reliance on our local businesses which are such an important part of our communities, and the ability to go to a park or a trail or out on the water to get some fresh air and exercise and grounding in nature, unspoiled by pollution or commercialism. 

– New hobbies, or the self-permission to do nothing.  I will admit to getting on the sourdough train earlier this year, and really enjoying it!  Zoom cook-along classes got me through much of the early part of the pandemic in a creative, social and healthy way.  Realizing as well that I had perhaps an unhealthy need to stay productive, I also allowed myself permission to watch a lot of TV, and ignore things on my to-do list (!).  Whether you spent this year honing new skills or binging on Netflix, that was the right thing for you to do. 

– Improved employer-employee relationships.  This may not be universal, but in my observation, the pandemic forced many leaders and managers to communicate better, cut their staff more slack, listen to them, support them, leverage technology, and trust their staff to be productive at home. Those who did so have been repaid by greater loyalty and productivity.  I hope this is another trend that sticks.

I was able to stay pretty positive and resilient most of this year.  I am proud of the work I’ve done with clients and on my volunteer board.  I’ve been able to stay reasonably fit and sane, mainly thanks to cooking and my dog. 

Then I shattered my wrist in a cycling accident in November, requiring surgery.  My left wrist and hand are still out of commission.  While I still have the occasional rough day, I was and remain grateful that it was not my dominant wrist, or my head or my legs.  I am grateful for the kindness of strangers who were there when I crashed, the paramedics and all of the hospital staff in emergency, and when I came back for surgery. I probably interacted with about 40 healthcare workers who are there for us every day, now putting themselves at risk.

I am grateful to those who have helped me with chores and errands and the occasional meal over these last couple of months. For someone independent, not wanting to bother people, this was quite an adjustment. But it’s been so nice having people around me I can rely on, from people I’ve known for years, to newer friends, to strangers.  I’ve needed and supported local shops and restaurants.  I would be lost without Zoom and the voice to text feature in my phone and computer.  Still, the highlight of most days is the joy in the face and tail of my dog when we are going for a w-a-l-k.  Her giddiness in the snow makes me laugh out loud!  

This year has been a marathon not a sprint.  I recently asked some friends on a holiday email chain, some of whom are distance runners, what mindset tools they learned from running they apply to getting through life’s peaks and valleys, especially when it seems like the current valley won’t end.  My good friend, Murina, who is probably the most positive and resilient person I know, no matter what comes her way, said:

“…it takes a lot of grit to go the distance.  Though the year ahead will continue to have its ups and downs and the road may seem long, just keep digging down deep to move one step past the other. I think just remembering that even small steps matter, [keep] moving forward.” 

That seems like great advice.  Dig deep when you can, take the small steps when that’s all you can do, just keep moving forward, even a little bit.  It’s not always going to be easy, but when the road has been long and hard, the payoff for getting through to the other side is that much greater.  There will be sunshine again… It’s already there, waiting above the clouds.

Wishing everyone a happy, healthy, prosperous and inspiring 2021!

Posted on

Legislative Updates and Business Continuity Planning

Happy Halloween weekend everyone – hope you’re all faring well in these uncertain times….

In Ontario, there has been a steady, albeit expected, rise in average new COVID-19 cases this fall, a modified shutdown, and many legislative and government support updates to both employers and employees since my last blog post in late September.  Examples of the latter include:

Employer Updates:

  • Mandatory daily screening for workplaces in Ontario was implemented end of September for any “workers” or “essential visitors” entering the work environment. This includes staff, students, contractors or volunteers, as well as service providers. It does not include “patrons”.  The minimum of 3 required screening questions relate to symptoms, travel and close contact and should be asked before entering the workplace and a mechanism in place to ensure individuals stay home and isolate if their screening is rejected.  Many employers are using automated forms such as Google forms, MS forms, Formstack etc., for efficiency of use and record keeping. 
  • Canada Emergency Commercial Rent Assistance (CECRA) directed to landlords has ended. October 30 was the last day to apply which covers rent up to September, 2020. A new benefit, Canada Emergency Rent Subsidy (CERS) replaces the CECRA.  It will provide support rent and mortgage support directly to tenants and property owners (details to be announced) until June, 2021 for qualifying organizations.  Claims can be made retroactively for the period beginning September 27, 2020 to October 24, 2020.  
  • Canada Emergency Wage Subsidy (CEWS) will be extended until June, 2021 (further details to be provided)
  • Canada Emergency Business Account (CEBA) – An additional interest free loan of $20,000 will be accessible for eligible businesses and not-for-profits, effectively increasing CEBA loans to up to $60,000 from $40,000, of which a total of up to $20,000 would be forgiven if the balance of the loan is repaid before December 31, 2022. The application deadline for CEBA is being extended to December 31, 2020.

Employee Supports:

  • The CERB expired September 26, 2020, and was replaced by new temporary benefits, available from September 27, 2020 to September 25, 2021:  the Canada Recovery Benefit (CRB) – $500.00 per week bi-weekly for up to 26 weeks, the Canada Recovery Sickness Benefit (CRSB) – $500.00 paid sick benefit per week for up to 2 weeks, and the Canada Recovery Caregiving Benefit (CRCB) – $500.00 per week bi-weekly for up to 26 for individuals unable to work significantly due to providing care for a child or family member impacted by COVID-19.

Meanwhile, working from home has become the new normal, and “hybrid” models of work at a workplace combined with remote work are becoming the new trend. 

Given the months of uncertainty still ahead due to the pandemic, some large organizations are doing elaborate modeling to determine workforce planning based on projected revenues and costs and infinite what-if’s, and who needs to be in the workplace vs work remotely, resulting cost savings etc.

Small to medium size organizations with fewer resources can still come up with a framework to determine who comes back to work when, and how to work safely and productively remotely meantime. 

As part of risk management, it’s always wise to do business continuity planning for unforeseen or unwelcome events and interruptions.  Otherwise you are figuring things out on the fly, such as we have all been doing the last few months!  Even if you have a plan, the situation with COVID-19 is constantly changing, and could get worse before it gets better.  Having some decision-making criteria and contingencies set up in advance alleviates some stress and minimize gaps in productivity and other risks. 

Business continuity plans include many factors such as technology (access, data storage, security, infrastructure etc.), the workplace itself, staffing (type and number), vendor and client relationships and communications etc.  

You should absolutely give yourself and your staff a pat on the back for adjustments you have already successfully made during this challenging time, and keep finding opportunities to celebrate those wins!  More on maintaining your organization’s culture during COVID in an upcoming blog.

In terms of emergency staffing, you should at least determine your key employees/roles – and ensure cross training and access for back-up coverage in the event someone becomes ill, takes leave, vacation or leaves the organization entirely.  (Note: succession planning falls in the business continuity category, but has a longer term view than emergency back-up.) 

You should consider who can provide coverage within your organization, whether temporary services can fill a void (and from where – do you have a ready source), and how long it would take to onboard and train a new staff member.

If operating costs are an issue, look at the cost-benefit of termination vs layoff vs salary reduction, taking into account whatever government aid is available.  Are the tasks/responsibilities of each role essential?  Can others in your organization provide coverage, and for how long?  Can roles be restructured?  What burden would layoff or termination place on other staff?  Can you keep staff employed and engaged, with government aid and perhaps some shared sacrifice, vs layoffs or terminations?

Policy updates also need attention, with best guesses in many areas.  A recent webinar by the Employment Law Alliance provided many thought-provoking questions, and not many answers, because we don’t know yet how some of these new risks will play out once challenged in court, and which will become common practice.  Examples include:

  • Who should pay for equipment if a staff member needs an ergonomic chair or desk?  What is the potential risk if staff are allowed to take chairs, desks and other equipment home from the office? 
  • Is the employer liable if an employee has an accident at home while working?  What are the differences in potential liability if work from home is required vs requested?  There are fewer employer obligations if it is requested, but not erased.  
  • There are indications that law and policy on sexual and other harassment, and workplace violence, does extend to remote workplaces, so employers should ensure there are discreet and secure ways to report this remotely. 
  • Does sales or marketing from home makes it a commercial establishment? 
  • Privacy and IT policies should also be addressed regarding remote working.  Some organizations already had rigourous standards, firewalls and VPN’s, but there are new risks to companies and employees, and new expectations to establish, with increased reliance on videoconferencing, for example.  
  • If employees are using their own computer equipment, there are no controls over home systems or firewalls.  Can the IT department run forensics on a home computer if there is a suspected cyber attack?   At minimum, staff should be reminded in the policy to log off, change passwords, and maintain privacy and security of confidential information if sharing space.  There may also be minimum home internet requirements, and if so, who pays for that?
  • Some employers are offering an allowance for home office equipment, some are managing case by case as a business expense.  

These are the kinds of questions that would keep me up if I were still an in-house HR professional!  My intent is not to scare you, but rather encourage some time with your team to address these issues together. Collaborative risk identification, planning and preparation can keep those hamsters off the wheel in the middle of the night, and help connect your team and build management capability. 

Ultimately my advice is control what you can, and be extra kind and patient with each other.  Going the extra mile for your staff will both minimize risk and boost morale, both of which offer greater rewards in the long run – and the short run.

RESOURCES:

Updates to government aid to businesses:

https://www.canada.ca/en/department-finance/news/2020/10/government-announces-new-targeted-support-to-help-businesses-through-pandemic.html

Posted on

Remote Work Indefinitely? Deciding When and How to Return to the Office

Ontario remains in phase 3 of the COVID-19 pandemic reopening plan. As of early September, government support for employers and employees has been extended, and positive COVID cases are rising again in Ontario and Toronto.  Due to recent spikes, public health is further restricting the number allowed to gather indoors (and outdoors).  While there is not another shutdown (yet), technically, small numbers of staff are currently allowed to be in their workplaces under public health guidelines.

This change of scene is welcome to some staff who prefer to work at the office than remotely for various reasons, and for some leaders who prefer to have their staff working face to face – or at least in close physical proximity – due to beliefs about morale, collaboration, innovation etc. Some are paying for nice office space and they want to see people in it!  Some are simply fed up with the pandemic, or afraid of loss of business or productivity, and just want things to get back to normal. 

Employers can insist on staff returning to the workplace, but many employment lawyers would not recommend this during an active pandemic, especially if their work is not considered essential or without other compelling reasons, such as necessary in-person interaction with the public or clients to operate, access to large equipment etc.  Many of my clients have kept their offices closed during COVID-19 so far, and have all staff working remotely in light of the health and safety risk.

Employers are responsible for providing a safe workplace.  Employees also have a responsibility to their colleagues, as well as their families and communities.  The Employment Standards Act allows for work refusals by staff if they can establish that their working conditions are unsafe.  In practice, that has been a high standard to uphold.  However, in the interests of general safety and virus containment, the ON government has stated that:  “Remote work arrangements should continue where feasible.”

Over the last few months, we’ve learned that more people than we imagined can work remotely.  It will remain to be seen what “sticks” as the new normal going forward. New ways of working have already been adopted and continue to be adapted.  There are huge benefits to learning to work more independently, adapt to flexible work arrangements, collaborate differently and perhaps more broadly, and leverage technology more creatively. We have also seen significant changes around health and safety in the workplace in order to minimize viral spread.  None of this is a bad thing.

It has also been established in a Harvard study that knowledge workers are more productive working from home.  Many of my clients and colleagues are doing this, and happy to continue, for a while at least, maybe not indefinitely. 

As time goes on, some employees and leaders are getting restless and want to get back to the office.  The novelty of Zoom calls in sweatpants has worn off.  They want to see people in person again (I get it!).  It’s particularly frustrating after several months of restrictions.  But with the prospect of a second wave looming, we can’t drop our guards, despite how tiring this is.  This unwanted guest is a huge challenge, and potentially lethal.

If Ontario stays in stage 3 for several more months, there are considerations of morale and other aspects of productivity and profitability that may also be challenged from having all staff working remotely long term.  The consequences from the loss of shared physical space and interpersonal experience is hard to quantify.  These may include impromptu idea sharing, sense of collegiality and bonding with co-workers derived from sharing physical space, and the mental and practical aspects of separation of work and home environments. 

The decision whether, when and how to bring staff back to the workplace during an active, ongoing pandemic involves risk for leaders and anxiety and uncertainty for all involved. 

To add some objectivity to the decision, based on a recent exercise with one of my clients, below are some examples of factors for consideration.  Leaders need to find the right balance between the health and safety risks of returning to the office during an active pandemic, and attempting to resume some pre-pandemic sense of normal functioning.  This will be unique to the needs and challenges of their organization, and also while determining what the “new normal” may be in the longer term. 

Sample Criteria for Re-Entering Office Decision:

Internal (organization-specific):

  • Added costs of cleaning services, supplies, PPE, installation of barriers (if needed), ventilation access (e.g., ability to open windows in winter and regulate temps), HVAC effectiveness and upgrades etc.
  • Added time/cost to develop new office safety policies and protocols relating to minimizing viral spread; training by and from Health & Safety Committee
  • Added time and complexity of managing rotating schedules, supervision and office safety protocols, opening and closing procedures
  • Reliability of staff to comply, self-regulate and self-disclose illness or symptoms
  • Degree of interaction with the public or clients
  • New cases of COVID-19 or exposure of staff or in the building
  • Temporary vs permanent cost/investment in technology, security or infrastructure
  • Barriers to program, product or service delivery due to lack of access to equipment etc.
  • Staff concerns, morale, or decline in productivity due to remote work
  • Possible change in liability insurance risk or premium increase

External factors:

  • Public health notifications: 
    • Number of new cases in ON over several days or weeks. Below 200 new cases per day for an extended period was the threshold for entering the next phase of re-opening. There is no published number for removing all restrictions.
    • Number of new cases in Toronto may be more relevant, indicating activity in the community.  This would be an arbitrary number and formula, such as fewer than 30 or 50 new cases per day over a 2-week period in a declining trend.
  • Legislative updates – e.g. the ON government recently amended the ESA to extend the Infectious Disease Emergency Leave to Jan 2, 2021 (from September 4, 2020).  The CERB, CEWS and CECRA have also been extended by the federal government.  These extensions reflect expert projections of pandemic status and resulting continued business and economic disruption.
  • US border/international travel restriction extensions (if applicable).
  • Access to immediate COVID-19 testing (self-screening and temperature checks are helpful but not fully reliable)
  • Access to an approved vaccine.  Note:  This does not imply everyone will take it, or that it can be required by employers.

Whenever the decision to re-open is made, staff should be given ample notice so they can plan accordingly, particularly if child or elder care is involved. I would recommend a minimum of 2 to 4 weeks, and frequent pulse checks meantime. 

It is important also to manage expectations that the decision to re-open the office may be temporary if there is a local outbreak, which may also be disruptive. And the decision may not be one size fits all for staff.  There may be valid reasons for certain staff to continue working remotely or have flexible work arrangements for a period of time or ongoing.  These situations must be handled case by case, and advice from an experienced HR consultant or employment lawyer is strongly recommended. 

Resources: 

Risk mitigation tool for workplaces/businesses operating during the COVID-19 pandemic:  https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/guidance-documents/risk-informed-decision-making-workplaces-businesses-covid-19-pandemic.html

Determining When to Ease Public Health Measures in ON: https://files.ontario.ca/mof-framework-for-reopening-our-province-en-2020-04-27.pdf

City of Toronto Guidance for Workplaces:  https://www.toronto.ca/wp-content/uploads/2020/03/9538-Fact-Sheet-for-Workplaces-Non-Healthcare_final.pdf

Harvard:  Who Guarantees Your Workplace is Safe for Return? https://hbswk.hbs.edu/item/who-guarantees-your-workplace-is-safe-for-return?j=1220613&l=7154_HTML&sfmc_sub=516245433&u=47896247&jb=98&mid=6336743&ucid=0030H000057s8KpQAI&em=20200907-Leadership-Insights-REMV-9/10/2020-1220613