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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.

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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.

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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.

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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.

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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