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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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Getting Ready to Re-open

It’s a rainy Victoria Day for many of us in Ontario.  A good day to stay indoors and contemplate – and plan for – getting back to business. 

Last week, Premier Ford and his cabinet announced the start of the phased approach of reopening businesses, some as early as this past weekend, and certain retail being able to open tomorrow, with some guidelines to adhere to.  He added to only open if you’re ready.  But this seemed to catch many small business owners off guard.  Some are concerned it’s too early, they’re not ready to bring in staff and customers.  Still so many unknowns. 

It’s wise to be cautious, and definitely a delicate balance for business owners to walk – between wanting to resume operations and make a living again, vs not wanting themselves, their families, staff or customers to contract or spread COVID-19. 

The curve appears to have flattened, but the virus is still around.  No one wants a second wave. 

We’re months or perhaps years away from a viable vaccine, and an ongoing economic shutdown is not going to be sustainable for most businesses or employees either.  There are an extremely difficult and loaded set of decisions to be made at all levels. 

Following the guidelines and recommendations from scientists and public health officials should help get folks back to work as gradually and safely as possible, and help keep the public safe.  Testing and contact tracing will also help as they become more widely available and in use. 

Meanwhile, there are many best practices to be borrowed about how to reopen from essential businesses who stayed open during the pandemic peak.  For example:

  • 6-ft distancing signs and arrows on the floor to direct traffic
  • Divider panels, plexiglass, curtains or other separation between seats
  • More readily accessible hand washing and sanitizing
  • Disposable masks & gloves
  • Rotating teams of staff for work-sharing or back-up in case of an outbreak
  • Delivery and curbside service where applicable

Last week, I had a dermatology visit at one of the only available walk-in centres.  Staff were masked and gloved behind Plexiglas, with 6 feet separating the two receptionists behind the glass. The waiting room was quite full, with individual chairs spread 6 feet apart, and everyone wore a mask from home as requested.  It was surprisingly calming. 

After checking in, it was suggested that I step out and later return in 45 minutes for my appointment, so I found a nearby Starbucks that was open online, and headed over.  I ordered a latte in the app, waited outside in the area with 6-ft spacing marks on the sidewalk, and was served at the door by a friendly masked young man.  There was a large desk between us, with a Plexiglas barrier covering most of the desk.  It’s a similar set-up and process at my local pet food store as well. 

This store-front service model has become a viable workaround for applicable businesses, keeps staff feeling safe, and seems to work fine for customers, except in the case of inclement weather or a much-needed bathroom break.  Shorter trips required for the time-being… 

Business owners are re-imagining and reinventing in real time the nature of their businesses and operations.  Not necessarily a bad thing, but this has to be fluid as circumstances keep changing.  A Vancouver Pilot Coffee Roasters manager being interviewed on CBC Radio last week said that their takeout coffee sales were not enough to cover costs.  They will have to look at other items they can sell to keep afloat.  

This manager went on to say that this pandemic is a huge test of leadership, due to the scale of it, the personal impacts to staff, and the balance to support that vs the business.  Like many other managers and business owners, she’s making it up as she goes along. 

There is massive pressure on leaders to manage these concerns about people and business, and huge risks and consequences involved.  Be kind to everyone.  Some leaders or managers are probably having a rough day too. 

One positive outcome of this extraordinary time is business owners and communities are learning from each other, supporting each other and working together, directly or through local business associations, boards of trade and chambers of commerce.  It is gratifying to see the growing impact of collectively dealing with these challenges.  With any luck, that will stick and extend to other areas. 

Key considerations for re-opening:

  • Is your health & safety policy up to date and include guidelines for things like distancing, office and desk cleanup, quarantine?  What will you do about non-compliance?
  • What is the status of your H&S committee?  Do you need volunteers to look at the unique considerations of your workplace on how to open safely – for staff as well as for customers?  What supplies are you providing and guidelines are you enforcing that will make everyone feel more comfortable returning?
  • Consider who can work remotely. The President of Twitter announced last week that staff can work from home “forever”.  That may not be feasible for your business, but where can you start to consider more flexibility in staff work arrangements?
  • There will be sporadic hotspots; some will have to stay or be sent home. Consider bringing staff back gradually for extra safety and back-up in case of outbreak.
  • There will likely be work refusals (these must be handled case by case).
  • There will likely be more mental health challenges as a result of the pandemic – due to increased stress at home and the workplace and general safety fears.  There is a cost to manage this, and a bigger one if you don’t.  Are you prepared?  Do you have benefits to support this? 

Last week, when Premier Ford announced the gradual reopening of the faucet here in Ontario, he suggested businesses ask themselves if they want to be “gold standard” – as certain golf courses and the construction industry have professed, as examples.

I would strongly suggest that how you respond as a business owner and leader, in terms of the rigour of safety guidelines you provide for staff and customers, and steps you take on their behalf, are part of your brand – both your corporate and employer brands – at least in the short to medium term.  They are interconnected, and immeasurably important to your survival. 

What kind of standard do you want to set?  How much risk (health, financial and reputational) are you willing to take?  What message do you want to send? 

Now is not a time for short-cuts.  There is too much at stake. 

Please contact me if you need any help interpreting or applying the guidelines, or creating / updating policy.  Good luck out there, stay safe, mask up and don’t forget to wash your hands!  We truly are all in this together.

Resources available:

The ON government has passed helpful legislation and posted many helpful resources, such as printable signage and sector-specific guidance: http://covid-19.ontario.ca/

Workplace Safety & Prevention has posted the post-pandemic business playbook and other useful and very thorough guides:  http://www.wsps.ca/WSPS/media/Site/Resources/Downloads/post-pandemic-business-playbook.pdf

The Canadian Federation of Independent Business (CFIB) is also a fantastic, comprehensive resource:  http://www.cfib-fcei.ca/en

I’d also recommend looking into what is available from your local chamber of commerce, board of trade and neighbourhood business association.

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Practical Steps for Small Business Leaders during COVID-19 (updated March 17, 2020)

Some of my clients and I’m sure other businesses, especially small ones, are feeling quite overwhelmed or confused about what to do and how to weather this COVID-19 storm.  So this is an attempt to assimilate the massive influx of information, and to package together some useful recommendations and credible resources.  

The last few days of shut-downs and announcements have been alarming, a relief to some and an over-reaction to others, especially while most of us are asymptomatic.  The virus has a 14-day incubation period (hence the quarantine and self-isolation periods) and public health officials are telling us we all play a role in delaying community spread, as long as possible.  In other words, to flatten the curve (i.e., let’s try to avoid what happened in Italy: the complete overburdening of the medical system there due to the rapid spread and spike in cases needing treatment…).  It’s a tricky balance to prepare, not alarm people, so everyone can take necessary steps.

Staying home and limiting interpersonal contact for an undetermined period is challenging for all, including small businesses with limited resources.  The government is promising financial help, but the facts and timing are not yet clear. Meantime, many business owners are looking at ranges of options from credit/cashflow financing to pay/hours cuts to potential layoffs, trying anything they can to keep their ships afloat. This also provides an opportunity to creatively improvise and innovate how you support and interact with your staff and customers... 

Engage your team in brainstorming and problem-solving these questions:

  • How can you adapt your service offerings to accommodate this situation and client needs?
  • What internal and client meetings and tasks can be done with more physical separation, online, on the phone or by videoconference, vs in-person or cancelled? 
  • What technology and processes do you have or need to put in place to support this?  
  • Where can you maintain productivity, cut some slack, keep everyone connected and even make this very difficult and challenging situation fun and stress-relieving for people? 
  • Who from your team can you enlist – or wants to help – with these items? 

Plans, policies, practices:

  • If you don’t have a COVID-19 policy or communications prepared, including workplace etiquette and hygiene, self-isolation and quarantine policies and other expectations, you should have one, consistent with and customized to your existing policies and practices.
  • If you don’t have a work-from-home policy, you now probably need one, at least on an interim basis.
  • If you don’t have paid sick days, you may want to consider implementing them, if you can afford it.  Alternatively, the Canadian government has announced that it has eliminated the waiting period for EI to relieve some of this burden.  It also has an application-based Work Sharing program, which may allow some employers to avoid layoffs resulting from COVID-19.
  • Ontario public health officials are now indicating that employers should not be requesting doctor’s notes for COVID-19 related time off work, because it may place an undue burden on medical professionals (i.e., they’re busy dealing with the influx of cases).  If your employee offers to provide a doctor’s note to substantiate medical time off for COVID-19 or anything else, ask them to scan and email it from home (if they have that capability), not bring it in while they’re sick.
  • If you don’t have a pandemic or business continuity plan, make a record of all the things you may need to deal with – including staff, clients, suppliers, technology etc. – that you’re now or maybe soon figuring out on the fly!  (And once all this is over, go back and put a proactive business continuity plan and supports in place for the next time.) 

Please contact me if you need help creating or updating your policies or staff communications. Please also share your ideas, resources and experiences – what’s working and what’s needed.

Remember, this too shall pass…  Your staff, clients, partners and others will appreciate your leadership in the interests of their and everyone’s welfare, which should pay off in the long run.  Stay safe and well!

Links to Public Health, Government and other Resources:

Public Health ON:  http://www.publichealthontario.ca/

Toronto Public Health:  http://www.toronto.ca/community-people/health-wellness-care/diseases-medications-vaccines/coronavirus/

Public Health Canada – COVID-19 (includes printable resources): http://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html

WHO – Getting Workplace Ready:  http://www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf

FAQ’s for Employers from Sherrard Kuzz LLP (Employment Lawyers): http://www.sherrardkuzz.com/wp-content/uploads/2020/03/Briefing-Note-COVID-19-Frequently-Asked-Questions-for-Employers-Updated-to-March-12-2020-Sherrard-Kuzz-LLP-Employment-and-Labour-Lawyers.pdf

Employer Update re COVID-19 from Hicks Morley (Employment Lawyers): http://hicksmorley.com/2020/03/12/update-on-coronavirus-covid-19-ontario-announces-pandemic-enhanced-measures-to-safeguard-public/

Government of Canada actions for COVID-19 (general): http://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/canadas-reponse/government-canada-takes-action-covid-19.html

Government of Canada actions for COVID-19 (resources for business): http://www.tradecommissioner.gc.ca/campaign-campagne/ressources-entreprises-COVID-19-business-resources.aspx?lang=en

Work Sharing Program (financial assistance for impacted businesses – Canada): http://www.canada.ca/en/employment-social-development/services/work-sharing.html

Insulating for isolation: a mental health checklist for getting through quarantine (Conference Board of Canada): http://www.conferenceboard.ca/insights/blogs/insulating-for-isolation-a-mental-health-checklist-for-getting-through-quarantine

Article explaining Flattening the Curve (Washington Post): http://www.washingtonpost.com/graphics/2020/world/corona-simulator/