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.bot.com/Portals/0/PDFs/Vaccination_Mandates_What_Your_Business_Should_Know_Ontario.pdf