CKL EMPLOYERS - USE ONTARIO'S UPDATED COVID-19 SELF-ASSESSMENT TOOL TO HELP SCREEN YOUR EMPLOYEES IN YOUR WORKPLACE - PROMOTE BETTER SAFETY; MINIMIZE LIABILITY. WHAT YOU NEED TO KNOW

Recently the Ontario government updated its COVID-19 SELF-ASSESSMENT TOOL.

The Tool delivers multiple questions designed to recommend what, if any, actions the self-assessing person should take or consider, including whether to attend work.

A link to the Tool is here:

https://covid-19.ontario.ca/self-assessment/

The Tool offers another way in which employers and employees can assess whether attending work is advisable, thereby clarifying uncertainty and confusion in the workplace.

The Tool also offers both employers and employees guidance on how to handle and impose policies and procedures regarding:

  • the potential symptoms of COVID-19, of which they should be aware;
  • determining which employees should be asked to leave the workplace and be directed to an assessment centre to get tested; and
  • determining which employees should self-isolate and work from home, if the nature of their work makes that possible.

Employers are permitted to request employees to use the Tool and follow the recommendations, as part of the overall health and safety plan in the workplace, particularly if there are reasonable grounds for suspecting an employee may be displaying any of the enlarged list of symptoms (described below), have the virus, or he or she may have been exposed primarily to the virus. 

Determining “At-risk group” and “close physical contact”:

The Tool identifies which individuals belong to an “at-risk group,” and defines “close physical contact.”

At-risk group:

Individuals who meet one of the criteria listed below are in an “at-risk group” for purposes of the Tool:

  • age 70 or older;
  • getting treatment that compromises their immune system (e.g., chemotherapy, medication for transplants, corticosteroids, TNF inhibitors);
  • having a condition that compromises their immune system (e.g., lupus, rheumatoid arthritis, other autoimmune disorder);
  • having a chronic health condition (e.g., diabetes, emphysema, asthma, heart condition); and
  • regularly going to a hospital or health care setting for a treatment (e.g., dialysis, surgery, cancer treatment).

Close physical contact:

The Tool defines “close physical contact” as:

  • being less than 2 metres away in the same room, workspace, or area for over 15 minutes; and
  • living in the same home

Four severe symptoms:

The Tool lists four potential severe symptoms of COVID-19:

  • severe difficulty breathing;
  • severe chest pain;
  • feeling confused or unsure of where you are; or
  • losing consciousness.

Seventeen additional symptoms:

The Tool also lists seventeen additional potential symptoms of COVID-19:

  • fever (feeling hot to the touch, a temperature of 37.8 degrees Celsius / 100 degrees Fahrenheit or higher);
  • chills;
  • cough that is new or worsening;
  • barking cough, making a whistling noise when breathing (croup);
  • shortness of breath;
  • sore throat;
  • difficulty swallowing;
  • runny nose (not related to other known causes or conditions);
  • stuffy or congested nose (not related to seasonal allergies or other known causes or conditions);
  • lost sense of taste or smell;
  • pink eye (conjunctivitis);
  • headache that is unusual or long-lasting;
  • digestive issues (nausea/vomiting, diarrhea, stomach pain);
  • muscle aches;
  • extreme tiredness that is unusual;
  • falling down often; and/or
  • for young children and infants: sluggishness or lack of appetite.

The Tool also addresses individuals who were in “close physical contact” with a person (High-Risk Individual) who:

  • tested positive for COVID-19;
  • is currently sick with a new cough, fever, having difficulty breathing; or
  • returned from outside of Canada in the last two weeks.

Finally, the Tool asks individuals if they have travelled outside of Canada in the last 14 days.

QUESTIONS AND ANSWERS FROM THE TOOL:

The Tool provides recommendations for the actions that those in each categories should consider and take.

For example:

Q. What actions does the Tool recommend for individuals who have one or more of the four Severe Symptoms?

A. Call 911 or go directly to their nearest emergency department, and take the self-assessment again (presumably when the symptom(s) subside, given their severity).

Q. What actions does the Tool recommend for individuals who have one or more of the 17 Symptoms?

A. Among other things: (1) Go to a COVID-19 assessment centre to get tested; (2) Stay at home (self-isolate); (3) Only leave home for critical reasons (such as going to an assessment centre); (4) Monitor their health for a full 14 days after their symptoms started; (5) Tell people with whom they were in close contact two days before their symptoms started to monitor their health and self-isolate; (6) Work from home, if possible; otherwise call their manager and occupational health and safety representative to let them know if they are experiencing symptoms or have been instructed to self-isolate, and discuss next steps to ensure they and their company are taking the right safety precautions; and (7) Visit their local emergency department if they begin to experience worsening symptoms.

Q. What actions does the Tool recommend for individuals who in the last 14 days were in “close physical contact” with a High Risk Individual?

A. Among other things: (1) Go to a COIVID-19 assessment centre to get tested; (2) Stay at home (self-isolate) for 14 days; (3) Only leave home for critical reasons such as going to an assessment centre; (3) Work from home, if possible; otherwise call their manager and occupational health and safety representative to let them know if they are experiencing symptoms or have been instructed to self-isolate, and discuss next steps to ensure that they and their company are taking the right safety precautions; and (4) Get re-tested at an assessment centre if they start feeling sick, come into close physical contact with someone who has symptoms, or feel like they need a test.

Q. What actions does the Tool recommend for individuals in the “at risk group”?

A. Among other things: (1) Stay at home (self-isolate); (2) Only leave their home for critical reasons (such as going to an assessment centre or for a medical emergency); (3) Work from home, if possible; otherwise, call their manager and occupational health and safety representative to let them know if they are experiencing symptoms or have been instructed to self-isolate, and discuss next steps to ensure they and their company are taking the right safety precautions; and (4) Visit an assessment centre if they begin to feel sick, come into close physical contact with someone who has symptoms, or feel like they need a test.

Q. What actions does the Tool recommend for individuals who travelled outside Canada in the last 14 days?

A. Among other things: (1) Stay at home (self-isolate) for 14 days; (2) Work from home, if possible; otherwise, call their manager and occupational health and safety representative to let them know if they are experiencing symptoms or have been instructed to self-isolate, and discuss next steps to ensure they and their company are taking the right safety precautions; and (3) Monitor their health and visit an assessment centre if they have symptoms or were told to do so by their local public health unit or their health care provider (doctor, primary care physician).

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LAYOFFS IN ONTARIO - THE NEW DEAL FOR THE PANDEMIC - CANNOT BE A TERMINATION UNDER ONTARIO'S LEGISLATION. WHAT YOU NEED TO KNOW.....

CHANGES TO THE ESA DUE TO COVID-19

On May 29, 2020, the Ontario government enacted Regulation 228/20 – Infectious Disease Emergency Leave (“Regulation”) under the Employment Standards Act, 2000 (“ESA”).

It offers Ontario employers impacted by COVID-19 with temporary relief from the ESA’s rules on temporary layoffs, termination, severance and constructive dismissal, by deeming an employee to be on unpaid, job-protected Infectious Disease Emergency Leave (“IDEL”) in specific, but not all, circumstances. 

These changes apply solely to non-unionized employees, including assignment employees who are employed by temporary help agencies.

Deemed to be on IDEL 

As opposed to being placed on a temporary layoff, an employee who does not perform their duties because their hours of work have been temporarily reduced or eliminated due to COVID-19 during the “COVID-19 Period” is deemed to be on IDEL.

The “COVID-19 Period” is defined under the Regulation as the period beginning on March 1, 2020 and ending six weeks after the state of emergency in Ontario comes to an end.

IDEL is an unpaid, job protected leave which came into effect under the ESA on March 19, 2020. It has certain conditions to qualify, one of which is a need to provide childcare to children due to Ontario's school closures. .

Under the ESA, an employee on a statutory leave of absence is entitled to continue to participate in benefit plans for the duration of the leave.

However, this new Regulation provides an exception - as of May 29, 2020, if an employee ceased participation in the employer’s benefit plan, or the employer ceased contributions to a benefit plan, the employer is exempt from the general requirement that it continue benefits during an ESA leave.

Employees will not be considered on IDEL if, at anytime on or after March 1, 2020, the employer:

  • terminates/severs the employee’s employ;
  • closes its entire business at an establishment; or
  • has given or gives notice of termination to an employee and the employee resigns in response as specifically provided under the ESA.

Similarly, employees will not be considered on IDEL if, before May 29, 2020, the employee had been:

  • deemed terminated or severed under the ESA because of their layoff; or
  • constructively dismissed and had resigned within a reasonable period.

Where an employee has been given written notice of termination, if the employer and the employee agree, the notice of termination can be withdrawn and the employee can be deemed to be on IDEL.

Reduced Hours/Wages

For an employee whose hours of work have been temporarily reduced or eliminated, or whose wages have been temporarily reduced, for reasons related to COVID-19 during the COVID-19 Period, the usual ESA termination and severance provisions related to layoffs will not apply.

That is, these employees will not be considered to be laid off for the purposes of the ESA during the COVID-19 Period.

The usual ESA rules remain in place if:

  • the employee is or was laid off as a result of a complete closure of the employer’s business at an establishment; or
  • before May 29, 2020, the employee had already been deemed terminated or severed under the ESA because of their layoff.

The Regulation also deems certain circumstances not to constitute a constructive dismissal under the ESA if they occur during the COVID-19 Period, and are for reasons related to COVID-19:

  • a temporary reduction or elimination of an employee’s hours of work.
  • a temporary reduction in an employee’s wages.

However, employees may still claim that such a reduction/elimination constitutes a termination if the employee resigned within a reasonable period before May 29, 2020.

Existing ESA Complaints

Subject to a few exceptions, complaints filed with the Ministry of Labour claiming that a temporary reduction or elimination of an employee’s hours of work, or a temporary reduction in an employee’s wages, constitutes a termination or severance of employment are deemed not to have been filed if the reduction or elimination occurred during the COVID-10 Period for reasons related to COVID-19.

Exemption - where an employee’s employ was deemed terminated before May 29, 2020 because they were laid off for a period longer than a temporary layoff under the ESA.

If so, the employee would still be able to file an ESA complaint if they were not paid their termination and severance (if applicable) entitlements.

In addition, where an employee was constructively dismissed and had resigned within a reasonable period before May 29, 2020, that claim would be allowed to proceed.

The Regulation also addresses how to determine if an employee’s hours of work or wages have been reduced.

For example, where an employee has a regular work week, the employee’s hours of work will be considered reduced if the employee works fewer hours in the work week than they worked in the last regular work week before March 1, 2020.

Where the employee does not have a regular work week, the average number of hours worked in the 12-week period before March 1, 2020 is to be used for comparison purposes.

Important Notes

While this Regulation appears to creatively provide temporary protection to Ontario employers, remember  the pre-existing ESA rules, including the deemed termination provisions for exceeding the temporary layoff period, will apply once the COVID-19 Period expires, unless the Ontario government further intervenes.

Furthermore, for any layoffs that preceded March 1, 2020 and were COVID-19-related, the COVID-19 Period effectively stops the clock on the layoff. 

This is a temporary measure - anticipate the usual rules for lay off will apply again at the end of the defined Covid-19 Period, including the 13-week, rolling threshold for temporary layoffs under the ESA.   

Lastly, note that this Regulation does not impact an employee's right to claim constructive dismissal at common law, which remains preserved and an option. The Ontario government has yet to decree otherwise.   

The Regulation is here: 

https://www.ontario.ca/laws/regulation/r20228

 

 

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CKL FRONTLINE WORKERS - DO YOU QUALIFY FOR THE TEMPORARY PANDEMIC PAY? ANSWERS HERE.......

The Ontario government has published a list of employees eligible for its temporary pandemic pay program. 

To provide additional support for frontline workers fighting COVID-19, the government is providing temporary pandemic pay of $4/hour worked on top of their regular wages. In addition, the government will be providing monthly lump sum payments of $250 for four months to eligible frontline workers who work over 100 hours per month. The pandemic pay will be effective for 16 weeks, from April 24, 2020 until August 13, 2020.

Temporary pandemic pay is designed to support eligible full-time, part-time and casual employees. It does not apply to management.

To receive pandemic pay, you must work in both an eligible:

  • role (i.e. be an eligible worker)
  • workplace

Eligible workplaces and workers are those listed below, by sector.

Health care

To be eligible for pandemic pay you must be an eligible worker (full-time, part-time or casual) who works in an eligible workplace providing in-person publicly-funded services.

Eligible workplaces

  • All hospitals in the province providing publicly-funded services, including small rural hospitals, post-acute hospitals, children’s hospitals and psychiatric hospitals
  • Home and community care settings, including community-based mental health and addictions

Eligible workers

  • Personal support workers including home support workers, home help workers, community support workers, residential support workers, homemakers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    • porters
    • cooks, food service, food preparation
    • custodians, cleaning/maintenance and environmental services staff, sterilization and reprocessing staff
    • housekeeping
    • laundry
    • security, screeners
    • stores/supply workers, receivers, department attendants
    • hospital ward and unit clerks
    • client facing reception/administrative workers, schedulers, administrative staff working in home and community care or community-based mental health and addictions
    • community drivers
    • community recreational staff/activity coordinators
  • Developmental services workers
  • Mental health and addictions workers: counsellors/therapists, case workers and case managers, intake/admissions, peer workers, residential support staff, Indigenous/cultural service workers
  • Respiratory therapists in hospitals and in the home and community care sector
  • Paramedics
  • Public health and infection prevention and control nurses

Long-term care

Eligible workplaces

  • Long-term care homes (including private, municipal and not-for-profit homes)

Eligible workers

  • All non-management publicly funded employees and workers in eligible workplaces (full-time, part-time and casual)

Retirement homes

Eligible workplaces

  • Licensed retirement homes

Eligible workers

  • All non-management employees working on site in licensed retirement homes (full-time, part-time and casual), excluding hours worked to provide extra care services purchased privately

Social services

Eligible workplaces

  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities and shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licenced children’s residential sites
  • Directly operated residential facility – Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite and drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels and motels used for self-isolation and/or shelter overflow

Eligible workers

  • Direct support workers (such as developmental service workers, staff in licenced children’s residential sites, intake and outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • Native Institutional Liaison Officers
  • TRILCOR personnel
  • Chaplains
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FINALLY......ONT. GOV. DECREES CANNOT SUE IF YOU ARE LAID OFF DUE TO PANDEMIC - BETTER LATE, THAN NEVER.

Finally.........

Yesterday, the Ontario government published a new regulation which, among other things, deems temporary reductions or cessations in hours due to COVID-19, or any temporary layoffs due to COVID-19, which began on or after March 1, 2020 not to trigger constructive dismissal claims or the deemed termination and severance provisions under the Employment Standards Act, 2000 (“ESA”). 

The regulation deems employees who are not performing work (e.g., those on a temporary layoff under the ESA) on or after March 1, 2020 to have been on an Emergency Leave under the ESA. 

The regulation also provide that employees that were on layoff under the ESA have been, instead, on this Emergency Leave.

Though leaves of absence under the ESA generally require employers to continue employee participation in applicable pension plans, life insurance plans, accidental death plans, extended health plans and dental plans, the regulation does not require such participation or employer contributions if an employee who is not performing work (e.g., who is on a temporary layoff) is not participating in these plans/the employer was not making contributions as of May 29, 2020.

 

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IS WORKING-AT-HOME GOING TO BE PERMANENT OR MORE REGULAR, EVEN AFTER THE PANDEMIC? LEGAL TIPS - WHAT YOU NEED TO CONSIDER.

Working from home – will it be more permanent or, at least, regular, even after the pandemic?

Stay-at-home work may be part of the “new normal” in the City of Kawartha Lakes for many businesses and organizations.

If so, there are a few legal issues to consider and plan for, not only to minimize liability for employers, but to enrich the work-at-home arrangement for both employers and employees.

Transitioning to remote work conditions involves some changes, legally.

HEALTH AND SAFETY ISSUES:

Although there may be some debate amongst legal professionals, arguably Ontario’s Occupational Health and Safety Act (the “Act”) extends to remove working arrangements. If not, expect the provincial government to soon verify that is the case.

Employers have a statutory duty to take all reasonable steps to ensure safety in the workplace, including for those working at home. Similarly, applicable federal legislation imposes the same obligation. To minimize exposure to liability, employers should assume this duty extends to those employees who are asked to, or who are permitted to, work at home in future.

Ontario has recently promulgated health and safety guidelines for operating a business during the pandemic, which apply to work-at-home arrangements, as may be relevant. Those should be reviewed and considered by both employers and employees. 

To incorporate work-from-home arrangements in future, including following the pandemic, employers should review and revise their workplace policy to ensure they: 

  • require employees conduct their own assessment of the workplace and, after doing so, promptly report any potential risks/hazards;

  • explore and address ergonomic issues relating to employees’ workplaces, including seating, keyboarding and monitor viewing;

  • establish the procedure for notifying and contacting the employer and evacuating the home or other remote work area to a safe location in the event of an emergency;

  • address the procedure for reporting promptly any work-related incidents or injuries;

  • facilitate a fairly regular, scheduled "check-in" process with the employer and, if appropriate, co-workers;

  • provide for a risk management/emergency procedure if an employee cannot be contacted, or communication is otherwise disabled; and

  • provide for suitable and appropriate training for both supervisors and those working from home.

ONTARIO HUMAN RIGHTS CODE ISSUES:

COVID-19 bring more attention to the potential need to accommodate employees, particularly regarding family status and disability-related issues. The most common issues are:  

  • employees with young children being forced to balance full-time work with child care and educational responsibilities, while schools are closed and without the usual services  provided by child care centres, schools, home maintenance, etc.;

  • a need for additional time off due to illness, or a need to care for family members who are ill; and

  • a need to work remotely due to concern of exposure or for other family (household) members who may have existing medical conditions or are elderly, which may make them more vulnerable to COVID-19.

In Ontario, employers must be mindful of the COVID-19 legal implications, including:

  • Ontario now has a job-protected, unpaid infectious leave of absence, including for COVID-19;

  • Ontario’s Human Rights Code requires employers to adopt individualized approaches to employees' requests for accommodation - there is no one-size-fits-all, cookie-cutter, standard approach to accommodation requests and each request must be determined on the basis of the relevant circumstances affecting the individual employee and the employer; and

  • employers’ obligations may vary or differ depending on whether the accommodations requested are short-term, medium-term, or permanent - permanent accommodation requests should not be rebuked merely because they are permanent in nature; rather, employers may be obliged to provide permanent accommodation if doing so falls short of "undue hardship."

REMEMBER BULLYING, INTIMIDATION AND HARASSMENT:

Harassment, bullying and discrimination occur with virtual interactions, too.

Employers are required to take reasonable steps to prevent and address such conduct under Ontario’s human rights and occupational health and safety legislation.

Accordingly, employers must review and ensure their workplace violence, bullying and harassment policies address "virtual" conduct and include a process for complaints and investigations that can take place outside of the regular workplace environment.

WORKPLACE POLICY:

For those employers intending to continue work-at-home arrangements, including after the pandemic, they should establish a workplace policy delineating the protocol, practice and procedures for:

  • the existing arrangements (during the pandemic);

  • when schools and child care centres reopen ultimately;

  • when social/physical distancing measures are relaxed, or removed; and

  • the post-pandemic period, when restrictions no longer exist and the “new normal” applies.

Set expectations for employees sooner, rather than later, despite that it may be difficult to do so amidst the uncertainty of the pandemic.  Things will change; developments will materialize that were not reasonably predicted. Workplace policies may need to be modified, or changed, to accommodate unforeseen developments during and after the pandemic.

Employers should develop and implement a flexible, scalable remove working policy, which addresses:  

  • the meaning of "remote work";

  • the employer's organizational polices, rules and practices that apply to remote work employees;

  • eligibility, approval and duration of a remote work arrangement;

  • specific remote work arrangements that may need to incorporate a distinct written remote work agreement between the employee and the employer;

  • specific responsibilities of the manager/supervisor for the work-at-home arrangement;

  • remote work training that may be necessary, if any;

  • feedback, performance reviews and evaluations;

  • technology and communications, including setting up employees with the necessary computer and peripheral equipment at home and the costs related thereto;

  • work hours and schedule;

  • overtime issues and procedure;

  • emergency measures;

  • performance, work quality and professional standards and expectations;

  • information and personal information security and measures to prevent unauthorized disclosure and privacy breach protocols; and

  • restrictions and limits on engaging in personal affairs/business during the work day.

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CKL BUSINESSES - ONT. GOV. BEING CRITICIZED FOR ALLOWING RE-OPENING WITHOUT PROPER TESTING IN PLACE - GET READY FOR THERMAL TESTING IN YOUR WORKPLACE. WHAT YOU NEED TO KNOW.

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Accurate body temperature measurements seek to measure a person’s core body temperature. The normal core body temperature range in an adult is 36.5 – 37 C, but not everyone’s “normal” is the same. As well, different methods of temperature testing, such as oral, axillar (armpit), or tympanic (inside the ear) can yield different results. Therefore, having tests performed by medically trained staff is required for proper testing, and appropriate assessment of results. As well, employers should be aware that proper hygiene, and the provision (and proper use) of PPE is required if considering oral, axillar or tympanic temperature testing as this necessitates  physical contact, and potentially puts the person doing the testing at risk. This can raise issues of cost, liability if proper measures are not followed, and the risk of employee refusal to participate.  

For rapid and hygienic testing, contactless Infra-Red (IR) thermometers are often the method chosen by employers.  However, some experts believe IR devices are unreliable because of user error and even when used correctly, those infected may go fourteen days or more without showing any symptoms.  IR temperature results can also be influenced by environmental factors (ie: someone who walked to work in the sun compared to someone who drove to work in air conditioning).

Touchless temperature scanners are available to employers to use, but can they?

There has been no government order to do so to date, including under Ontario’s new health and safety guidelines.

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

 
 
 
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CKL BUSINESSES - FEDERAL WAGE SUBSIDY EXTENDED AND EXPANDED. WHAT YOU NEED TO KNOW.

The Canada Emergency Wage Subsidy (the “CEWS”) has been both extended and expanded: 

  • extended for another 3 months to August 29, 2020; and

  • expanded to include eligibility for the following groups:

    • partnerships that are up to 50% owned by non-eligible members;

    • Indigenous government-owned corporations that are carrying on a business, as well as partnerships where the partners are Indigenous governments and eligible employers;

    • registered Canadian amateur athletic associations;

    • registered journalism organizations; and

    • non-public colleges and schools, including institutions that offer specialized services, such as arts schools, driving schools, language schools, or flight schools.

The government announced further proposed changes to the CEWS which will require legislation, including:

  • providing flexibility for employers of existing employees who were not regularly employed in early 2020, such as seasonal employees;

  • ensuring that the CEWS applies appropriately to corporations formed from the amalgamation of two predecessor corporations; and

  • better aligning the treatment of trusts and corporations for the purpose of determining CEWS eligibility.

These new changes will hopefully be legislated very soon. 

 

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RETURNING TO WORK PART-TIME OR REDUCED HOURS? BE CAREFUL WITH YOUR CERB. AVOID REPAYMENT. WHAT YOU NEED TO KNOW.

  • $500 weekly – maximum of 16 weeks

  • Retroactive to Mar. 15, 2020

  • Available between Mar. 15 and Oct. 3, 2020

  • Must be 15 and Canadian resident

  • Must have declared $5,000 total income in preceding 12 months or in 2019 (including by self-employment)

  • 7, 4-week eligibility cycles or claiming periods

  • Does not need to be consecutive claiming periods – maximum of 16 weeks (4 months) in total during entire period of program

  • Taxable benefit (not deducted at source; must be claimed in next personal income tax filing)

  • When first applying, cannot earn more than $1,000 from other sources for 14 or more consecutive days within the 4-week claim period

  • For future claim periods, cannot earn more than $1,000 income during the claim period

  • Cannot qualify if laid off, but earns income from other work or on reduced hours

  • Cannot voluntarily withdraw or quit – must qualify for an approved statutory leave of absence under the Employment Standards Act or work disruption must be related to COVID-19

  • Cannot be topped up by employers, unless the top up is not more than $1,000 in any 4-week claim period

  • Replaces EI regular benefits if unemployment occurs on or after Mar. 15, 2020

  • Not EI

  • Can collect CERB without affecting future EI benefit eligibility

  • Note: payment of accrued vacation time if a lay off or termination could disqualify CERB (if more than $1,000 within 14 days before initial application or during the subsequent claim period)

  • Note: if recalled during a CERB claim period, resulting in income more than $1,000, may be required to repay the CERB during that claim period

 

Examples:

 

  • Salaried employee (including self-employed) – eligible if stops working for reasons related to COVID-19 (also eligible for CEWS and CEBA)

  • Sole proprietor – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

  • Own a corporation and paid by dividends, not salary – eligible of stops working for reasons related to COVID-19 (not eligible for CEWS or CEBA)

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CKL IS GRADUALLY REOPENING - WHAT CAN EMPLOYERS REQUIRE EMPLOYEES PROVIDE TO BE ENTITLED TO TAKE THE NEW INFECTIOUS DISEASE EMERGENCY LEAVE?

As we gradually reopen, what can an employer require an employee to provide before the employee may take the new infectious disease emergency leave in Ontario? 

An employer may require an employee to provide evidence reasonable in the circumstances at a time that is reasonable in the circumstances that the employee is eligible for infectious disease emergency leave but employers cannot require an employee to provide a certificate from a physician or nurse as evidence. Employers are not prohibited under the ESA from requiring medical notes in the context of issues such as return-to-work situations or for accommodation purposes.

What is considered reasonable in the circumstances will depend on all the facts of the situation, such as:

  • the duration of the leave

  • whether there is a pattern of absences

  • whether any evidence is available and the cost of the evidence

If it is reasonable in the circumstances, evidence may take many forms, such as a:

  • travel documentation showing that the employee had travelled to a country for which quarantine or isolation is being advised

  • a copy of the information issued to the public by a public health official advising of quarantine or isolation (for example, a print out, screen shot or recording of the information)

  • a copy of an order to isolate that was issued to the employee under s. 22 or s. 35 of the Health Protection and Promotion Act

  • a note from an employee's day care provider indicating that the childcare centre was closed because of a designated infectious disease

Employers can only require the evidence at a time that is reasonable in the circumstances. What is considered reasonable in the circumstances will depend on all of the facts of the situation.

For example, if an employee is in isolation or in quarantine, it will not be reasonable to require an employee to provide the evidence during the quarantine or isolation period, if the employee would have to leave home to obtain the evidence.

However, if the employee has electronic evidence that can be sent from home, it may be reasonable to require the employee to send it during the isolation or quarantine period.

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CKL BUSINESSES - AS YOU PIVOT AND DO MORE ONLINE , PROTECT YOURSELF FROM YOUR EMPLOYEES' BREACHING PRIVACY OR DATA - WHAT YOU NEED TO DO

During the pandemic, businesses and organizations in the CKL are exploring new, online delivery and operations.

With this new way to do so business, the risk of privacy and data breach increases.

Every business should have a privacy breach protocol policy, for example, delineating the steps that will promptly be taken in the event of a breach of personal information.

But did you know a business can also be held vicariously liable for an employee who, intentionally or otherwise, breaches the privacy of a customer or client?

Ontario Courts have found employers liable for vicarious liability for an employee's wrongdoing, including breach of data, if the risk of the breach was heightened because, for example, the employee was authorized to access the data without sufficient supervision or, despite not being authorized to access the data, the employee had sufficient opportunity to access the data because of the employer’s failure to put in place appropriate security controls.

As the “new normal” continues to develop, CKL businesses and organization should take steps to protect against this potential for vicarious liability, including by:

  • limiting employee access to personal and other highly confidential information on a need-to-know basis;
  • adopting policies that outline the specific bases on which personal and other highly confidential information may be accessed, used, transferred or disclosed by employees;
  • implementing a protocol for supervision of employees with access to sensitive personal and other highly confidential information;
  • putting in place technological safeguards that prevent employees from downloading customer information, other than to the extent necessary, and create alerts for supervisors when sensitive personal and other highly confidential information is accessed;
  • ensuring availability of logs recording access to personal and other highly confidential information and implement protocols for reviewing these logs for compliance with expected access and use; and
  • for highly sensitive information, consider implementing a protocol requiring two employees to sign-off to obtain access.

To manage potential exposure from vicarious liability involving a compromise of personal information, organizations should identify risks that are particular to their organization and tailor the risk management plan accordingly. 

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CKL BUSINESSES - THE WAGE SUBSIDY IS EXTENDED BEYOND JUNE - WHAT YOU NEED TO KNOW TODAY

May 8 - the federal Government announced the Canada Emergency Wage Subsidy (the "CEWS") will extend beyond June, 2020. More information to be announced. 

What you need to know about the CEWS: 

  • 75% of employees’ wages for up to 12 weeks
  • Retroactive to Mar. 15
  • Intend to promote recall and rehiring of employees laid off or terminated due to COVID-19; resume normal operations, if possible
  • Three claim periods – Mar. 15 to June 6, 2020
  • Available to most individuals, businesses and non-profits qualify to apply – must be an “eligible employer”
  • Maximum of $847 per employee per week – likely to be greater than EI (55% up to a maximum of $573 weekly and the CERB, $500 weekly, taxable)
  • Challenge for employees earning greater than $58,000 annually
  • No overall limit
  • Retroactive to Mar. 15, 2020
  • Applies to even newly hired employees
  • If you qualify for Mar. 2020, automatically qualify for Apr. 2020 (i.e., auto re-qualification applies to every claim period)  
  • Employers not required to top up employees’ pay to pre-subsidy amounts
  • Must demonstrate reduction in monthly revenues of: (a) at least 15% in March; and (b) 30% in April and/or May, 2020, as compared to either: (i) that same month in 2019; or (ii) the average of your Jan. and Feb. 2020 total, gross revenue
  • Can use either an as-earned (i.e., invoicing) or as-paid accrual, but must use the same calculation in every claim period – cannot change
  • Affiliated employers can apply individually or on a consolidated basis
  • Apply on the CRA’s Web site – use the My Business portal
  • Taxable benefit to employers (as government assistance)
  • Use the calculator on the CRA’s Web site to estimate subsidy before submitting the application online
  • Subsidy will be reduced by the eligible claim for the 10% subsidy in each claim period (i.e., taken at source by employers; not a direct reimbursement)
  • Full refund for EI and CPP contributions for laid off/furloughed employees if on “leave with pay” during the claim periods (i.e., if “leave with pay” permitted by either the Employment Standards Act or the Canada Labour Code)
  • Honour system applies – penalty is repayment in full, plus 25% penalty on subsidy received
  • Should consult with accountant on information relied on for application
  • Note: not available for employee if, during the claim period, there were 14 consecutive or more days without pay [Example: if employee laid off with no pay on Apr. 11, but recalled on May 9, but he/she does not receive pay for at least 14 consecutive days during the lay off period (between Apr. 11 to May 9, no subsidy available for that employee during the claim period – employer is responsible for ensuring an each employee has not been paid “eligible remuneration” for 14 or more consecutive days during the claim period
  • Laid off employees can be retroactively eligible, if rehired and retro pay and status meet the “eligibility criteria”  
  • Employees cannot receive both the CERB and the subsidized income
  • Employees responsible for determining CERB entitlement, not employers
  • Employers can claim the subsidy for employees who received the CERB, if otherwise eligible – employee required to pay back the CERB if no longer qualify during the 4-week claim period in question
  • Does not replace the 10% wage subsidy (does not require a revenue reduction; reduced withholdings at source to receive), but cannot receive both
  • Employers can claim for employees on “leave with pay”
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REOPENING THE CKL - WE HAVE A SYMPTOMATIC EMPLOYEE OR CUSTOMER IN OUR STORE OR OFFICE - WHAT SHOULD WE DO? WHAT YOU NEED TO KNOW.

Employers in the CKL should develop and implement an infection prevention and control plan that includes procedures for responding when an employee, customer, or other individual present in the workplace becomes ill with symptoms of COVID-19.

The plan should include:

(i) procedures for isolating and transporting the individual home if they begin showing symptoms at the workplace; and

(ii) steps to take if an employee or other individual tests positive for COVID-19 shortly after attending the workplace.

Employers in the CKL must also report  COVID-19 transmission in the workplace to the our local health unit. 

Employees who appear to have symptoms (i.e., fever, cough, or shortness of breath) upon arrival at work or who become sick during the day should immediately be separated from other employees, customers and visitors and sent home.

If the employee is able to be tested, the employee should not be allowed to return to the workplace until the employee tests negative for COVID-19 and has completed any self-isolation period mandated by public health authorities.

If the employee cannot be tested, the employee should not return to the workplace until the employee has completed any mandated self-isolation period and is free of symptoms.

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CKL FRONTLINE WORKERS - TEMP PANDEMIC PAY - NOW IN EFFECT - HOW MUCH, HOW PAID, WHO IS ELIGIBLE. WHAT YOU NEED TO KNOW.

Temporary pandemic pay is aimed at helping frontline staff who are experiencing severe challenges and are at heightened risk during the COVID-19 outbreak.

It is a targeted program designed to support employees who work in congregate care settings or primarily with vulnerable populations, where maintaining physical distancing is difficult or not possible.

The goals of this temporary pandemic pay are to:

  • provide additional support and relief to frontline workers
  • encourage staff to continue working and attract prospective employees
  • help maintain safe staffing levels and the operation of critical frontline services

How much you can get

There are two kinds of pandemic pay you may be eligible for:

  • a temporary top-up based on your hourly wages
  • monthly lump sum payments

Pandemic pay on hourly wages

If you are eligible, you will receive $4 per hour worked on top of your existing hourly wages, regardless of how much you already make.

All eligible workers will receive this amount automatically.

Monthly lump sum payments

If you work at least 100 hours in a designated 4-week period, you will also be eligible to receive an additional lump sum payment of $250 for that period.

The designated 4-week periods are:

  • April 24, 2020 to May 21, 2020
  • May 22, 2020 to June 18, 2020
  • June 19, 2020 to July 16, 2020
  • July 17, 2020 to August 13, 2020

This means you may receive up to a total of $1,000 in lump sum payments over these 16 weeks.

Eligible staff will also be paid retroactively for hours worked during this period.

How to get paid

If you are an eligible frontline worker, you will receive the temporary hourly pandemic pay directly from your employer.

The government is still working out how lump sum payments will be made. 

For employers

Employers are not being asked to apply for pandemic pay; eligible employers will be contacted by May 15.

Who is eligible

Temporary pandemic pay is designed to support eligible full- and part-time employees. It does not apply to management.

Eligibility is not dependent on whether there is a COVID-19 outbreak in the location you work in.

To receive pandemic pay, you must work in both an eligible:

  • role (i.e. be an eligible worker)
  • workplace

Eligible workplaces and workers include those listed below, by sector.

Health care

To be eligible for pandemic pay you must be an eligible worker who works in an eligible workplace providing publicly-funded services.

Eligible workplaces

  • All hospitals in the province, including small rural hospitals, post-acute hospitals, children’s hospitals and psychiatric hospitals
  • Home and community care

Eligible workers

  • Personal support workers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    • porters
    • cooks
    • custodians
    • housekeeping
    • laundry 
  • Developmental services workers
  • Mental health and addictions workers
  • Respiratory therapists in hospitals and in the home and community care sector
  • Paramedics
  • Public health nurses

Long-term care

Eligible workplaces

  • Long-term care homes (including private, municipal and not-for-profit homes)

Eligible workers

  • All non-management publicly funded employees and workers in eligible workplaces (full-time, part-time and casual)

Retirement homes

Eligible workplaces

  • Licensed retirement homes

Eligible workers

  • All non-management employees working on site in licensed retirement homes (full-time, part-time and casual)

Social services

Eligible workplaces

  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities and shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licenced children’s residential sites
  • Directly operated residential facility – Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite and drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels and motels used for self-isolation and/or shelter overflow

Eligible workers

  • Direct support workers (such as developmental service workers, staff in licenced children’s residential sites, intake and outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • Native Institutional Liaison Officers
  • TRILCOR personnel
  • Chaplains

Base salaries, benefits and pensions

The temporary hourly pandemic pay and lump sum payments:

  • are non-pensionable earnings
  • are not part of an employee’s base salary
  • have no impact on benefits paid by employers

The temporary pandemic pay and lump sum payments do not impact your eligibility for Employment Insurance (EI) or the Canada Emergency Response Benefit (CERB).

Vacation and leaves

The $4 hourly top-up and lump sum payment eligibility only apply to the hours you actually work.

It does not apply to time you were not in the workplace for any reason, including:

  • vacation
  • any authorized paid leave, including sick leave
  • time and benefits awarded under the Workplace Safety and Insurance Act, 1997

Union dues

Some unions will not be collecting union dues on the temporary pandemic pay.

Consult with your workplace bargaining agent to discuss their particular arrangements.

Unless you receive specific direction from your union, you must continue to pay any union dues required by your collective agreement.

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REOPENING THE CKL - SHOULD BUSINESSES REQUIRE PPE FOR EMPLOYEES? WHAT YOU NEED TO KNOW.

Should businesses in the CKL use personal protective equipment ("PPE") for employees, such as non-medical face masks, gloves and eye protection? 

Yes, PPE is an option, but only when the risk and hazards related to COVID-19 cannot be eliminated through following Ontario's new health and safety guidelines and other governmental orders and directions. 

The Ontario government advises us that PPE should only be used when all other mitigation measures have been implemented, which can be found here: 

https://www.wsps.ca/WSPS/media/Site/Resources/Downloads/covid-19-office-health-and-safety-guidance.pdf?ext=.pdf

If it is to be used, employees must also be trained on how to use PPE correctly, including fit, use, putting it on and taking it off, maintenance, cleaning, and disposal, as well as training on the limitations of PPE.

If PPE is necessary to control risks related to COVID-19, employers should consider what, if any, PPE the employer can provide. With all forms of PPE in high demand, any reopening plan that requires PPE should take into account what forms of PPE the employer has the ability to obtain.  Regardless of the measures that are taken, it is important to ensure that safety measures are based on governmental and public health guidance.

Non-medical face masks continues to spur debate and confusion publicly. Canada’s Chief Medical Officer continues to affirm that individuals should wear a non-medical face mask when they are unable to maintain proper physical distance from others. A non-medical mask can reduce the chance of an individual’s respiratory droplets coming into contact with others or landing on surfaces. The use of a non-medical mask is primarily to protect an employee’s co-workers, as opposed to protecting the individual wearing the mask.

If an employer wants to require or encourage its workers to wear a mask, they should supply those masks. Any provision of masks to employees should be accompanied by a policy on non-medical face masks and training for employees on how to properly use a non-medical mask, as well as their limitations (as described above).

The Government of Canada does not recommend N95 masks for the general public and medical masks such as the N95 are only recommended for health-care workers and people who are taking care of someone in close settings such as acute care, primary care and long-term care facilities.

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CKL BUSINESSES - LEGAL STEPS TO TAKE BEFORE RETURNING EMPLOYEES TO WORK - HOW TO DEAL WITH EMPLOYEES WHO REFUSE TO RETURN. WHAT YOU NEED TO KNOW.

Employers have a duty under Ontario’s Occupational Health and Safety Act to protect the health and safety of their employees.

They must implement preventative measures to ensure employees are not exposed to conditions potentially harmful to their health and safety at work.

Failure to ensure a safe workplace can lead to significant liability, including fines and penalties and, in serious cases, criminal prosecution.

To meet their obligations to provide a safe workplace, it is critical that employers update and implement (and in some cases, post in the workplace) new health and safety policies and practices in their workplaces to address the risks associated with the COVID-19 pandemic, including as now required by Ontario’s new health and safety guidelines for all operating businesses.

So, what about employees who are to return to work?

IDENTIFY HIGH RISK EMPLOYEES

High risk employees, or those at more risk of contracting the virus or having more severe conditions, may include:

  • older adults;
  • those with weakened or compromised immune systems;
  • those with underlying medical conditions, such as: hypertension, lung-related illnesses, heart disease, cancer and diabetes.

Employers should attempt to identify potential high risk employees, including by:

  • requiring a self-disclosure policy, pursuant to which employees disclose that they are at a higher risk (without disclosing any personal details or sensitive medical information); and
  • taking measures to mitigate the risk for self-disclosed high risk employees, such as working from home or in an isolated area.

EMPLOYEES QUALIFIED FOR A TEMPORARY LEAVE OF ABSENCE

In Ontario, employees are eligible for a job-protected, unpaid leave of absence for specific reasons related to COVID-19, such as childcare issues (resulting from the closure of schools) or taking care of a sick family member. If an eligible employee, particularly under Ontario’s infectious disease leave of absence, request this leave of absence, it must be given by the employer, which cannot terminate the employee’s employ during the entire, permitted leave period. 

If a qualified employee requests this leave of absence, employers should consider:

  • implementing work at home arrangements, to the extent possible; and
  • review their own employment agreement with the employee and their work workplace policies, to determine if the employee is entitled to paid leave of absence and, if not, recommend to the employee to apply for the CERB for income replacement benefits.

REFUSAL TO RETURN TO WORK DUE TO VIRUS CONCERNS

In Ontario, an employee has a statutory right to refuse work if he or she believes on reasonable grounds that the work constitutes a danger to his or her health and safety.

If an employee refuses to return to work due concerns about personal safety:

  • the employee must report the hazard to the employer;
  • the employer must ensure it is operating in accordance with Ontario’s new health and safety guidelines;
  • the employer must take any necessary corrective action in a timely manner to address the hazard reported;
  • if an employee believes their workplace remains unsafe, the employee may make a complaint to the Ministry of Labour of Ontario; and
  • Ministry Inspectors have authority to enforce the legislation in several ways, including conducting inspections, issuing orders, writing violation tickets and issuing administrative penalties.

In every case, employers should ensure their accommodation policies and practices effectively address each issue on a case-by-case basis fairly, reasonably and in accordance with their legal obligations, pursuant to Ontario’s Human Rights Code. The Ontario Human Rights Commissions has clearly indicated that employers should be sensitive to a variety of factors affecting an employee’s ability to attend the workplace, such as caregiving responsibilities or pre-existing health problems (for example, if the employee has a compromised immune system).

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UPDATE TO CKL BUSINESSES - AM I ESSENTIAL NOW? WHAT RULES MUST I FOLLOW TO OPERATE? WHAT IF I GET FINED - HOW MUCH IS IT?

As of March 24, 2020, Ontario has declared a “State of Emergency” under Ontario’s Emergency Management and Civil Protection Act.  

To date, this is in effect until May 6, 2020, but it may be extended. 

Only “essential” businesses may remain open.

DEFINITION OF “ESSENTIAL” BUSINESSES:

“Essential” businesses currently are:

  • Healthcare Services – hospitals, laboratories, health facilities, and manufacturers, wholesalers, distributors and retailers of pharmaceutical products.
  • Supply Chains – businesses which support or supply systems or services in a supply chain such as processing, packaging, distribution, delivery, and maintenance.
  • Retail and Wholesaling – businesses which sell food, pet foods, supplies necessary to maintain safety, sanitation, and essential operations such as grocery stores or supermarkets.
  • Agriculture, Production, and Food Services – agricultural operations and food production businesses are allowed to remain open during this period. Restaurants will be allowed to open only for take-out or delivery options during this period.
  • Financial Services – banks, credit unions, insurance, capital market operations (such as stock exchanges), and businesses that provide payroll or payment processing services.
  • Utilities – utilities such as electricity generation, transmission, distribution, and storage, natural gas services, emergency first-responders (police, firefighters, paramedics), and government services.
  • Other – childcare services for essential workers, medical research facilities, telecommunications and media, and long-term care facilities.

The full list of essential businesses in Ontario is here: https://www.ontario.ca/laws/regulation/200082

The Province of Ontario also announced that effective May 4, 2020, certain other businesses not included on this list of “essential” services will be allowed to gradually re-open business operations.  These businesses include garden centres and nurseries, lawn care and landscaping services, additional construction projects for telecommunications, shipping, schools, and construction site development.  The full list of these businesses is here: https://news.ontario.ca/opo/en/2020/05/certain-businesses-allowed-to-reopen-under-strict-safety-guidelines.html

PENALTIES FOR FAILING TO COMPLY:

Businesses which do not belong to a category of “essential” business and continue to operate during this period risk incurring the following penalties under the Emergency Management and Civil Protection Act:

  • an individual could be subject to a fine of up to $100,000 and imprisonment of up to one year;
  • an individual who is a director or officer of a corporation could be subject to a fine of not more than $500,000 and for a term of imprisonment of not more than one year; and
  • a corporation could be subject to a fine of not more than $10,000,000.

Municipal by-law officers and municipal or provincial police officers are enforcing this emergency order. They are empowered to issue warnings, fines, or summonses to “non-essential” businesses and their directors, officers, and employees which maintain business operations during this mandatory closure. Municipalities may also have specific by-laws which further limit business operations within these jurisdictions.

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CKL BUSINESSES - HOW TO AVOID BEING FINED FOR OPERATING AS "NON-ESSENTIAL" OR FAILING TO COMPLY WITH THE NEW HEALTH AND SAFETY GUIDELINES - WHAT YOU NEED TO KNOW

AVOIDING PENALTIES FOR UNLAWFULLY OPERATING:

The best defence against a warning, fine or summons is to argue that the business is in fact within a category of “essential” businesses and, as a result, the penalty is unwarranted.

Some possible measures to reduce the risk of incurring a penalty include:

  • evaluating whether all or portions of your business may qualify as “essential”, as this definition becomes amended from time to time - while it may not be possible to open all of your business operations, it may be possible to partially open those parts of your business which are “essential”;
  • identifying the key employees who are needed to work on-site and offer them defined hours of operations, have in place safety measures to limit physical contact, and make sure that their work qualifies as an “essential” category of business; and
  • providing key employees with letters indicating that they are employees at an essential business and ensure they have proper credentials to confirm to property managers or authorities in case they are questioned by by-law enforcement officers or police officers.

On April 30, 2020, the Province of Ontario provided guidelines for certain business sectors to ensure that the eventual reopening of Ontario’s economy can be done safely.  The six specifically listed sectors are construction, food processing, restaurant and food services, agriculture, manufacturing and long-term care.

Ontario’s sector-specific guidelines include general public health recommendations including holding team meetings outdoors, staggering shift times and using ground markings and barriers to manage traffic flow.  These guidelines also recommend installing plexiglass barriers, increasing the air intake on heating, ventilation and air conditioning systems to increase air flow, maintaining frequent cleaning for public spaces, and promoting physical distancing.  Businesses that are considering plans for re-opening would benefit from considering and implementing these provincial guidelines.  

For more information from us about these new health and safety guidelines and the accompanying posters for your workplace, go here: http://wardlegal.ca/31587872329978

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IF MY CKL BUSINESS IS FINED FOR OPERATING UNLAWFULLY, OR NOT FOLLOWING THE NEW HEALTH AND SAFETY GUIDELINES, CAN I FIGHT IT? HOW? WHAT YOU NEED TO KNOW

CHALLENGING A FINE FOR NON-COMPLIANCE:

Even if you maintain a defensible position for operating a non-essential business during the lockdown, including demonstrating compliance with the new health and safety guidelines, a by-law officer or police officer may still issue a ticket to employees or businesses for non-compliance with the provincial lockdown order.

So far, in the CKL, there is no specific legal Court to challenge or dispute these tickets.

As a result, a business or individual will have to challenge a fine or other penalty issued under the Emergency Management and Civil Protection Act through Provincial Offences Court or, where available, municipal administrative bodies for municipal by-law offences related to COVID-19.

It may be possible in the CKL to request, if you were ticketed by a municipal by-law officer, an early resolution meeting with a prosecutor to resolve the matter without the need for a trial or request a trial at Provincial Offences Court.  

It is hoped that the CKL will facilitate and encourage alternative dispute resolution for these types of offences.

Formal challenges to tickets and fines issued by by-law officers or police officers will likely not be heard until Provincial Offences Court resumes in-person hearings or commences virtual hearings.  

This said, during this emergency period, the Province of Ontario has suspended limitation periods applicable to Ontario court matters retroactive to March 16, 2020 until the order is revoked, so in-person challenges will not likely be heard until the Courts re-open. 

When Provincial Offences Court reopens and hears cases again, a ticketed business or individual can file an appeal for convictions within thirty days of the conviction date.

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CKL BUSINESSES - TO REOPEN, CONSIDER TAKING YOUR EMPLOYEES' TEMPS (THERMAL TESTING) TO PROMOTE SAFETY, PROTECT PRIVACY AND MINIMIZE LIABILITY. WHAT YOU NEED TO KNOW.

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Accurate body temperature measurements seek to measure a person’s core body temperature. The normal core body temperature range in an adult is 36.5 – 37 C, but not everyone’s “normal” is the same. As well, different methods of temperature testing, such as oral, axillar (armpit), or tympanic (inside the ear) can yield different results. Therefore, having tests performed by medically trained staff is required for proper testing, and appropriate assessment of results. As well, employers should be aware that proper hygiene, and the provision (and proper use) of PPE is required if considering oral, axillar or tympanic temperature testing as this necessitates  physical contact, and potentially puts the person doing the testing at risk. This can raise issues of cost, liability if proper measures are not followed, and the risk of employee refusal to participate.  

For rapid and hygienic testing, contactless Infra-Red (IR) thermometers are often the method chosen by employers.  However, some experts believe IR devices are unreliable because of user error and even when used correctly, those infected may go fourteen days or more without showing any symptoms.  IR temperature results can also be influenced by environmental factors (ie: someone who walked to work in the sun compared to someone who drove to work in air conditioning).

Touchless temperature scanners are available to employers to use, but can they?

There has been no government order to do so to date, including under Ontario’s new health and safety guidelines.

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

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REOPENING AND COMING BACK STRONGER - OUR TOP FIVE TIPS TO CKL BUSINESSES AND MANAGING EMPLOYEES DURING COVID-19

How your business manages its way through the pandemic will be a strong measure of its ability to achieve post-pandemic success.

No one knows how we’ll emerge from this.

Will corporate culture change?

Will our offices become mere hubs for periodic interaction and specific purposes, leaving many of us to continue working remotely?

Will we travel at all for work in the future.

No one knows.

But ensuring a strong, committed relationship with every employer continues to be essential during the pandemic.

Every CKL employer should consider taking this approach to its relationship management with its employees:

  • consistently reinforce a message of trust with your employees – those who feel trusted they will take greater ownership than if they feel they are being micro-managed in difficult circumstances;
  • check in regularly at a personal level - mental wellbeing is critical in these times and acknowledging possible challenges will help employees feel safe, nurtured and if necessary be more open about their challenges;
  • remain mindful of the different challenges people face when working from home (small spaces, poor IT, young children) and adapt working practices – and expectations – accordingly;
  • engage your entire workforce, not only those that are adjusting better or more efficiently; and
  • appreciate that when working remotely, old networking habits may resurface excluding certain workers - active engagement and feedback is even more critical to assure you maximize the benefits of your diverse talent pool.

Maximize the potential success of your business after this pandemic, hopefully to being more successful than ever.

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CKL EMPLOYERS - CHEAT SHEET - WHAT IF AN EMPLOYEE REFUSES TO GO TO WORK? THE BASICS.

WORK REFUSALS BY EMPLOYEES

  • Must be a “danger” to returning to work
  • Employers must fulfill the statutory duty to take any reasonable steps to ensure health and safety in the workplace – More information here: http://wardlegal.ca/31587872329926
  • All governmental orders and health officials’ recommendations should be followed in the workplace – More information here: http://wardlegal.ca/31587872329932
  • Consider thermal testing for employees – must also be mindful of balancing employees’ privacy – More information here: http://wardlegal.ca/31586368607052
  • If a dispute, Ontario Ministry of Labour must be contacted – a binding decision will be made
  • Employees may qualify for a job-protected, unpaid leave of absence under the Employment Standard Act – More information here: http://wardlegal.ca/31587872329926
  • New Infectious disease leave of absence is broad and includes need to care for a dependent, like a child during school closures  
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CKL EMPLOYERS - TIPS FOR RECALLING EMPLOYEES FROM LAY OFFS - WHAT YOU NEED TO KNOW

Employers in the City of Kawartha Lakes, tips to you for recalling employees from lay offs during the pandemic:  

  • Must recall before end of 13-week statutory period (within rolling 20 week period); maximum is 35 weeks during any 52-week period if certain conditions apply – otherwise deemed termination – More information about lay off rules and requirements is here: http://wardlegal.ca/31586368607034
  • Terms of recall must comply with the requirements of the Employment Standards Act, at a minimum
  • Check employment agreement, workplace policy or collective bargaining agreement, if any – must provide “greater right or benefit” compared to Employment Standards Act
  • No formal notice requirement/procedure, unless in an employment agreement, workplace policy or collective bargaining agreement, if any
  • If not recalled by statutory deadline, statutory entitlements triggered for most employees (but check for exemptions to statutory entitlement – construction workers, etc.)
  • May also trigger common law pay in lieu of notice (i.e., severance)
  • Employees must return, if recalled, within a reasonable period of time, or forfeit statutory entitlements (termination and severance pay, etc.) [Employment Standards Act Policy and Interpretation Manual, ss. 2(1), para. 7]
  • Employer must prove failure to return after recall – must be clear, written notice of recall and employee could read and understand the recall notice
  • Avoid verbal recalls – do it in writing
  • Avoid recalling for a short period of time to avoid paying statutory entitlements [Highland Cove Marina v. Van Velden and Babcock, Dec. 22, 1983, ESC 1531, Sheppard)
  • Must return to pre-lay off position – must be confirmed in the written notice of recall
  • Return to work notice should identify those employees being recalled, dates of recall and intention to provide a work schedule to those recalled
  • If staggering recalls, should recall in reverse order of lay offs (i.e., those laid off first will be recalled first), if possible
  • Return to work notice should confirm the recall is on the same terms of employ as pre-lay off
  • If any change to pay, work hours, etc. to be applied, must specify that in the written recall notice (and confirm intention to return to pre-lay off terms as soon as possible)
  • Return to work notice should explain further lay offs may be required, depending on developments and, if so, terms of initial lay off will apply
  • Return to work notice should remind recalled employees to notify the federal government (i.e., end the CERB, EI, etc.) to avoid double-dipping
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CKL EMPLOYERS - YOUR UPDATED CHEAT SHEET FOR THE NEW 75% WAGE SUBSIDY - WHAT YOU NEED TO KNOW TODAY

Employers in the City of Kawartha Lakes, your updated Cheat Sheet of nee-to-know tips for the emergency wage subsidy and taking advantage of this benefit: 

  • 75% of employees’ wages for up to 12 weeks
  • Retroactive to Mar. 15
  • Intend to promote recall and rehiring of employees laid off or terminated due to COVID-19; resume normal operations, if possible
  • Three claim periods – Mar. 15 to June 6, 2020
  • Available to most individuals, businesses and non-profits qualify to apply – must be an “eligible employer”
  • Maximum of $847 per employee per week – likely to be greater than EI (55% up to a maximum of $573 weekly and the CERB, $500 weekly, taxable)
  • Challenge for employees earning greater than $58,000 annually
  • No overall limit
  • Retroactive to Mar. 15, 2020
  • Applies to even newly hired employees
  • If you qualify for Mar. 2020, automatically qualify for Apr. 2020 (i.e., auto re-qualification applies to every claim period)  
  • Employers not required to top up employees’ pay to pre-subsidy amounts
  • Must demonstrate reduction in monthly revenues of: (a) at least 15% in March; and (b) 30% in April and/or May, 2020, as compared to either: (i) that same month in 2019; or (ii) the average of your Jan. and Feb. 2020 total, gross revenue
  • Can use either an as-earned (i.e., invoicing) or as-paid accrual, but must use the same calculation in every claim period – cannot change
  • Affiliated employers can apply individually or on a consolidated basis
  • Apply on the CRA’s Web site – use the My Business portal
  • Taxable benefit to employers (as government assistance)
  • Use the calculator on the CRA’s Web site to estimate subsidy before submitting the application online
  • Subsidy will be reduced by the eligible claim for the 10% subsidy in each claim period (i.e., taken at source by employers; not a direct reimbursement)
  • Full refund for EI and CPP contributions for laid off/furloughed employees if on “leave with pay” during the claim periods (i.e., if “leave with pay” permitted by either the Employment Standards Act or the Canada Labour Code)
  • Honour system applies – penalty is repayment in full, plus 25% penalty on subsidy received
  • Should consult with accountant on information relied on for application
  • Note: not available for employee if, during the claim period, there were 14 consecutive or more days without pay [Example: if employee laid off with no pay on Apr. 11, but recalled on May 9, but he/she does not receive pay for at least 14 consecutive days during the lay off period (between Apr. 11 to May 9, no subsidy available for that employee during the claim period – employer is responsible for ensuring an each employee has not been paid “eligible remuneration” for 14 or more consecutive days during the claim period
  • Laid off employees can be retroactively eligible, if rehired and retro pay and status meet the “eligibility criteria”  
  • Employees cannot receive both the CERB and the subsidized income
  • Employees responsible for determining CERB entitlement, not employers
  • Employers can claim the subsidy for employees who received the CERB, if otherwise eligible – employee required to pay back the CERB if no longer qualify during the 4-week claim period in question
  • Does not replace the 10% wage subsidy (does not require a revenue reduction; reduced withholdings at source to receive), but cannot receive both
  • Employers can claim for employees on “leave with pay”
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WHAT MUST CKL EMPLOYERS LEGALLY DO TO PROTECT EMPLOYEES DURING COVID-19? WHAT YOU NEED TO KNOW.

Every employer in the City of Kawartha Lakes has a duty to take all reasonable steps to ensure the health and safety of employees, pursuant to Ontario’s Occupational Health and Safety Act.

According to Inspectors from the Ministry of Labour currently, generally in terms of COVID-19, this means:

  • maintaining physical distancing all times in the workplace;
  • ensuring adequate sanitation and hand-washing facilities;
  • performing adequate cleaning and disinfecting throughout the workplace;  
  • practicing all other federally, provincially and municipally ordered and recommended health advisory containment steps and precautions;
  • respecting the privacy of employees as much as possible in the circumstances, particularly if seeking information or conducting any screening; and  
  • using reasonable and best efforts to refuse entry into your workplace of anyone who:
  • is identified as a person diagnosed with COVID-19;
  • has the signs and symptoms of COVID-19, has been tested for COVID-19 and is awaiting the results of their test;
  • for whom your employer has reasonable grounds to believe that person has symptoms of COVID-19; and/or
  • has close contact with another person identified in the above points,

These relate to COVID-19, but there may be other health and safety obligations for employers, depending on the nature of the workplace and the operations. 

For more information from us about monitoring and screening COVID-19 in the workplace, go here: http://wardlegal.ca/31586368607052

For additional information, contact the Ontario Ministry of Labour, Training and Skills Development here: https://www.ontario.ca/page/ministry-labour-training-skills-development

 

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MENTAL HEALTH AND ADDICTION SERVICES IN CKL - NEW EMERGENCY ORDER - MORE FLEXIBILITY TO PROVIDE ASSISTANCE TO THOSE IN NEED

New Ontario emergency order affecting employers who provide mental health and addiction services (“Mental Health Agencies”), per Ontario’s Emergency Management and Civil Protection Act: 
 
Mental Health Agencies now have broad discretion and flexibility to take “any reasonably necessary measure to respond to, prevent and alleviate the outbreak” of COVID-19 and “to respond to consequences arising from” COVID-19, including: 
• redeploy staff within different locations, despite collective bargaining agreements; 
• change the assignment of work, which can include assigning non-bargaining unit employees or contractors to perform bargaining unit work; 
• change scheduling or shift assignments; 
• defer or cancel vacations, absences or other leaves (regardless of whether such vacations, absences or leaves are established by statute, regulation, agreement or otherwise); 
• employ extra staff (whether full time, part time, temporary, contractors, volunteers) to perform work, including bargaining unit work; 
• provide training or education as needed to staff and volunteers to “achieve the purposes of a redeployment plan”; 
• conduct “skills and experience inventories” to identify alternative roles for staff “in priority areas”; and 
• collect information from staff about their availability to provide services including their health conditions or exposure to COVID-19. 
These steps are permitted even if contrary to any collective bargaining agreements currently in effect. 
If there were a grievance by a union, it is deemed to be suspended during Ontario’s State of Emergency.   
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NEW PANDEMIC TOP-UP TO FRONT LINE WORKERS - ADDITIONAL $4 HOURLY + $250 TO WORK LONGER HOURS

To provide additional support for front line workers fighting COVID-19, the Ontario government is now providing a temporary pandemic pay of $4/hour worked on top of their regular wages. In addition, the government will be providing monthly lump sum payments of $250 for four months to eligible frontline workers who work over 100 hours per month. The pandemic pay will be effective for 16 weeks, from April 24, 2020 until August 13, 2020, and is expected to support over 350,000 frontline workers.

Eligible workplaces and workers for pandemic pay

The pandemic pay is designed to support employees on the frontlines of COVID-19 and does not apply to management. Eligible workplaces and workers include:

Health care and long-term care

Eligible workplaces

  • Acute hospitals
  • Long-term care homes (including private, municipal and not-for-profit homes)
  • Licensed retirement homes
  • Home and community care

Eligible workers

  • Personal support workers
  • Registered nurses
  • Registered practical nurses
  • Nurse practitioners
  • Attendant care workers
  • Auxiliary staff, including:
    •  Porters, cook, custodian, housekeeping, laundry facilities and other key workers.
  • Developmental services workers
  • Mental health and addictions workers

Social services

Eligible workplaces

  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities/shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licensed children's residential sites
  • Directly operated residential facility ― Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite/drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels/motels used for self-isolation and/or shelter overflow

Eligible workers

  • Direct support workers (e.g. developmental service workers, staff in licensed children's residential sites, in-take/outreach workers)
  • Clinical staff
  • Housekeeping staff
  • Security staff
  • Administration personnel
  • Maintenance staff
  • Food service workers
  • Nursing staff

Corrections

Eligible workplaces

  • Adult correctional facilities and youth justice facilities in Ontario

Eligible workers

  • Correctional officers
  • Youth services officers
  • Nurses
  • Healthcare staff
  • Social workers
  • Food service
  • Maintenance staff
  • Programming personnel
  • Administration personnel
  • Institutional liaison officers
  • TRILCOR personnel
  • Native inmate liaison officers
  • Chaplains
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CKL BUSINESSES - WORKING AT HOME HAS SURGED - YOU'RE ALSO NOW ONLINE TO SURVIVE - SEVEN STEPS FOR PREPARING FOR AN IT FAILURE AND TO REDUCE YOUR LIABILITY RISKS

Due to the pandemic, the surge in work-from-home arrangements has caused strain and pressure on information technology (“IT”) providers.

Internet broadband providers, cloud-based businesses and virtual private network operators (“VPN”s) may be unable to keep pace with the new IT requirements for their clients’ businesses (collectively, “IT Providers”).

The result may be business interruption, additional time required to manage IT-related issues or other unanticipated resource allocation. 

To protect your business and prepare for this change in the IT world, you should:

[1]      Review your contract with your IT Providers:

  • is there a “force majeure” clause, or any clause addressing the interruption of IT services due to a health emergency or other reason?

For more information from us about non-performance clauses in contracts during COVID-19, go here: http://wardlegal.ca/the-virus---does-it-cancel-contracts-rental-agreements-separation-and-parenting-agreements-maybe---read-on

  • is there any clause about a material change in circumstances (i.e., adverse change) that may be triggered due to COVID-19?
  • is there any clause about whether temporarily not provide IT services will constitute a breach of your contract?
  • is there any clause in the contract that may limit or exclude the liability of the IT provider for non-performance?
  • is there any clause that imposes a time limit, or procedure by which, your claim must be made against the IT Provider, if any?
  • is there any clause requiring you to “mitigate” your damages and, in any event, should you discuss any available alternatives with the defaulting IT Provider, or arrange for another IT Provider to provide your services?

[2]      Check your commercial insurance policies:

  • do you have business interruption coverage?

For more information from us about this coverage, go here: http://wardlegal.ca/31582887996638

  • do you have emergency or public health coverage?
  • do you have any coverage that may be triggered due your IT Provider’s failure to provide services to you?
  • discuss with your broker whether such is available, if you do not have it, and consider amending your policy for that coverage
  • make sure you know what, if any, notice requirements you have vis-à-vis your insurance company if your IT Provider fails to perform, including if you intend to make a claim as a result

[3] Get your contingency plan ready:

If you may experience non-performance by your IT Provider, consider:

  • doing a full assessment of your business and its operations in terms of reliance on IT services;
  • evaluating the potential impact of non-performance by your IT Provider on your ability to continue your business; and
  • identify other options and have your contingency plan ready.

[4]      Get your workplace policy implemented for working-from-home (i.e., remote) arrangements:

  • implement your policy and have all employees acknowledge and agree, in writing;
  • consider incorporating:
    • productivity expectations;
    • action plan in the event of the failure of an IT Provider; and  
    • reporting system for any IT disruptions.

[5]      Get your date breach/privacy protocol workplace policy in place, as required by law

[6]      Monitor IT services carefully to detect any failure or breach and carefully record any incident

[7]      Carefully monitor e-fraud during the pandemic, which is rampant, including:

  • any requests for payment, especially any request to change payment or account details;
  • ensuring your employees speak personally with the third party to verify the payment arrangements;
  • check and double-check emails addresses and other contact information for third parties where funds are involved, including based on historical information;
  • always ask for confirmation via a new email (not a chain); and  
  • act quickly and decisively if fraud is detected.

 

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EXTENSIVE NEW FINANCIAL AID TO STUDENTS TODAY - YOU'LL NEED A CALCULATOR TO DECIDE WHICH WAY TO GO - WHAT YOU NEED TO KNOW.

April 22 – The federal Government announced new financial aid to students – they can now claim a new Canada Emergency Student Benefit (“CESB”).

Under the CESB, eligible post-secondary students could receive $1,250 monthly from May to August. If that student is also taking care of someone else or has a disability, that amount increases to $1,750 monthly.

College and university students currently in school, planning to start in September, or who graduated in December 2019 are eligible.

In addition, working students earning less than $1,000 per month can also apply.

The new benefit will require legislation, but the federal Government promised to promptly roll this out. 

In addition to the CESB, the federal Government also announced more financial assistance to young people:

  •  creating an additional 76,000 jobs for young people in certain sectors, or that are on the frontlines of this pandemic;
  •  investing more than $291 million to extend scholarships, fellowships, and grants for three or four months;
  •  launching a new Canada Student Service Grant of between $1,000 and $5,000 for students volunteering in the COVID-19 fight; and
  • doubling the student grants that the government gives out for the 2020-21 school year.

This new benefit is intended to address the ‘gap’ for students who did not qualify for the CERB, due to the condition that they must have reported $5,000 in income in the past twelve months.

Earlier, the federal government announced temporary changes to the Canada Summer Jobs program to help students find work in a largely locked-down country once their summer begins.

Now, employers who hire summer students can apply for a subsidy of up to 100 per cent of the Ontario minimum wage. This is for the age range of 15 to 30.

For many students and employers in the City of Kawartha Lakes, this raises new questions. For example, financially is a student better off volunteering to receive a service grant, or having a job that's fully or partly-funded under the revised Canada Summer Jobs program, or even the 75%  wage subsidy if an employer qualifies and is applying for that next week? Get out a calculator – there is math that needs to be done.  

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COVID-19- WORKING AT HOME - BEST PRACTICE AND TIPS TO BOTH EMPLOYERS AND EMPLOYEES

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.

If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.

Differential treatment related to this virus is not permissible.

Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.

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MINISTRY OF LABOUR DOING 'BLITZ' INSPECTIONS OF ESSENTIAL BUSINESSES - WORKERS ABLE TO EXPRESS CONCERNS ABOUT HEALTH AND SAFETY DURING INSPECTION

Ontario’s Occupational Health and Safety Act (the “OHSA”) statutorily imposes duties on everyone in the workplace, including a positive duty on employers to take every precaution reasonable in the circumstances to protect employees’ health and safety.

Businesses deemed “essential”, or “non-essential” businesses continuing to operate remotely, must ensure their health and safety policies and practices meet the legal requirements and are consistent with public health orders and recommendations.

The Ontario Government has also ordered that a person responsible for an essential workplace continuing to operate must ensure the business operates in accordance with all applicable laws, including the OHSA, and compliant with all the advice, recommendations and instructions of public health officials.

To this end, Ontario’s Ministry of Labour has been “blitzing” essential businesses for health and safety inspections across Ontario, including to enable essential employees to express and voice their concerns, if any. 

Ontario’s health and safety inspectors are responsible for enforcing compliance with health and safety legislation in provincially-regulated workplaces in Ontario and have broad regulatory powers to address non-compliance, such as issuing orders to those in the workplace, who may also potentially face charges for non-compliance with legislation, with substantial fines and even incarceration as potential outcomes in certain circumstances in the event of a conviction for an occupational health and safety related offence.

According to the Ministry, inspectors conducted over 5,000 workplace inspections during March of 2020.

The Ministry has said inspectors will work with employers and employees to resolve issues, and shut down businesses where warranted.

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MINISTRY OF LABOUR DOING 'BLITZ' INSPECTIONS OF ESSENTIAL BUSINESSES - EMPLOYEES CAN VOICE CONCERNS ABOUT HEALTH AND SAFETY DURING INSPECTION

Ontario’s Occupational Health and Safety Act (the “OHSA”) statutorily imposes duties on everyone in the workplace, including a positive duty on employers to take every precaution reasonable in the circumstances to protect employees’ health and safety.

Businesses deemed “essential”, or “non-essential” businesses continuing to operate remotely, must ensure their health and safety policies and practices meet the legal requirements and are consistent with public health orders and recommendations.

The Ontario Government has also ordered that a person responsible for an essential workplace continuing to operate must ensure the business operates in accordance with all applicable laws, including the OHSA, and compliant with all the advice, recommendations and instructions of public health officials.

To this end, Ontario’s Ministry of Labour has been “blitzing” essential businesses for health and safety inspections across Ontario, including to enable essential employees to express and voice their concerns, if any. 

Ontario’s health and safety inspectors are responsible for enforcing compliance with health and safety legislation in provincially-regulated workplaces in Ontario and have broad regulatory powers to address non-compliance, such as issuing orders to those in the workplace, who may also potentially face charges for non-compliance with legislation, with substantial fines and even incarceration as potential outcomes in certain circumstances in the event of a conviction for an occupational health and safety related offence.

According to the Ministry, inspectors conducted over 5,000 workplace inspections during March of 2020.

The Ministry has said inspectors will work with employers and employees to resolve issues, and shut down businesses where warranted.

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CKL BUSINESSES - BALANCING CYBER-SECURITY, EMPLOYEES' PRIVACY AND THE WORKING-AT-HOME RELATIONSHIP. TIPS AND WHAT YOU NEED TO KNOW.

Great article today in Kawartha Lakes This Week, featuring our advice and comments about balancing cyber security, employees' privacy and working-at-home relationship during the pandemic: 

______________________

Working online, from home? Protect yourself from cyber criminals

The COVID-19 Pandemic has forced many Kawartha Lakes businesses to rely on the online market for the first time

NEWS 03:00 AM by Sarah Sobanski  MyKawartha.com

As businesses head online to continue their work through the pandemic, they need to consider cybersecurity threats and their legal obligations regarding the confidentiality of personal information and remote work. - Torstar file photo

It takes careful planning to make it as a small-business owner – and COVID-19 has thrown many into the deep end of the online market without precedence.

Jason Ward, owner of Wards Lawyer PC, says he’s fielding nearly 100 emails a day filled with questions about work-from-home policies, privacy, COVID-19 regulations, support and more.

At Netmechanics, owner Graeme Barrie is busy, too. He’s working with the Innovation Cluster on cybersecurity workshops and advising businesses on cyber threats to their information and employees.

Many businesses are not only using new technology to do business, but using well-established tech in different ways such as sharing information via email they might have otherwise shared in a one-on-one conversations.

 

“Cyber criminals, they love a crisis,” Barrie says, adding that businesses should be vigilant when it comes to communications.

The video-conferencing application Zoom has been a popular choice for businesses since COVID-19 sent people to work from home. The app has seen its number of users skyrocket from around 10 million in December to more than 200 million users.

With its increasing popularity have come increasing privacy concerns. Various media outlets have reported security breaches such as easily accessing Zoom-recorded meetings online and cyber criminals hijacking meetings.

You can be held responsible if the information of your clients or your employees is hijacked, Ward says.

“Businesses are now required by law to have what’s called a privacy breach protocol workplace policy,” he says, for businesses that collect information online. The protocol outlines what steps a business will take if there is a breach of personal information.

“A small business in Lindsay might not have the resources to be as cyber-secure as a larger corporation,” Ward says, noting the government recognizes this in its legislation.

“But you must by law, if you are compromised, have a policy mitigating steps you will take to minimize the damage. If you have that policy, and you take those appropriate steps to satisfy (the government), then the penalty to you is not likely to be as severe.”

Ward adds that businesses need to make sure they have good privacy policies in general when it comes to protecting consumer information in compliance with federal and provincial laws – and that extends to online.

Why would cyber criminals want that information? Barrie says it's often for ransomware attacks, where cyber criminals will hold your information hostage for payment. They can also gain access to your computer and collect your information without you noticing.

“They make more money off the ransomware because data is the heart of so many businesses, they know that it’s critical,” he says.

He notes that startups may be the target of intellectual property theft or corporate espionage. Some small to medium-sized businesses may be the target as part of a supply chain to a larger company.

One way to gain access to your computer and information are phishing scams. These scams trick you into giving access to cyber criminals through links in emails or via text message.

For businesses who suddenly find themselves having to do everything online, Barrie’s best advice is to get educated. He says you can’t protect against what you don’t know about.

While e-learning and considering how cybersecurity and privacy legislation go hand in hand, business owners might also consider brushing up on workplace legislation and how employees are able to work from home through online connections.

Ward says Ontario’s Occupational Health and Safety Act doesn’t apply to working from home, but in a scenario such as this pandemic, it could be applied in the future. Business owners should consider developing a remote working policy.

“Managing the working from home relationship is a challenge,” he says. He notes employees are dealing with a lot at home from distractions to obligations – it can be challenging and stressful. Employers may need to make compromises.

Employers and employees need to work together to define expectations, including for productivity. Ward says there are applications to supervise remote work.

“Many businesses, the monthly revenue coming in relies on the productivity of the employees,” he says.

“Employees have to understand that if your output isn’t at a certain level, we have to look at alternatives for that particular employee.”

Understanding expectations can be imperative when businesses are struggling to sustain themselves until the end of the pandemic.

“I fully anticipate that we’re going to be seeing new legislation ameliorating what the consequences are for having to lay people off, particularly if you were declared a non-essential business.”

by Sarah Sobanski

Email: ssobanski@mykawartha.com

 

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MY 13-WEEK TEMPORARY LAY OFF ENDS SOON - NOW WHAT? GUIDE TO CKL BUSINESSES AND EMPLOYEES

Some CLK businesses have been deemed non-essential and, therefore, cannot operate during the emergency.

Other essential businesses, despite being legally permitted to operate, have had to consider or undertake downsizing, restructuring, or otherwise cost-cutting.

Either way, as a result, local businesses have had to consider or have implemented temporary or permanent layoffs.

While temporary layoffs can be an effective means of cost-saving, they can also be risky if employers have not protected their right to temporarily lay off employees in their employment contracts.

The Ontario Employment Standards Act, 2000 (the “ESA”) allows employers to temporarily lay off employees, so long as the layoff lasts for no more than 13 weeks in any consecutive 20-week period.

However, if a layoff extends for more than 13 weeks in any consecutive 20-week period, but lasts less than 35 weeks in any consecutive 52-week period, the layoff will still be considered temporary in a few exceptional cases (i.e., if the employer has continued to pay the employees substantially and/or provides them with benefits, if the employees would be entitled to receive Employment Insurance or the CERB, or if the employees are subject to a timely recall).

The 20-week period is a “rolling window” - if an employee is laid off for even one day more than 13 weeks in any consecutive 20-week period, the layoff will not be temporary. The same is true of the 52-week window described above, which applies in limited circumstances. If the applicable threshold is exceeded, termination is triggered, and is deemed to have retroactively occurred on the first day of the layoff.

In addition, a temporary lay off may be extended for any period, if the employee consents. If so, an employer is allowed to continue the lay off to coincide with the length of the pandemic. 

Despite an employer’s right to temporarily lay off an employee under the ESA, where an employment contract does not provide for the possibility of such a layoff, Ontario courts have often favoured employees who claim to have been constructively dismissed.

Accordingly, employers face risk if they lay off an employee for common law damages, even where they have complied with the temporary layoff provisions of the ESA.

However, there are cases in Ontario in which the Court has inferred a right to impose a temporary layoff in the absence of an express contractual right in limited circumstances.

For example:

  • the employer has a history of temporary layoffs for various reasons, including a shortage of work;
  • the employer is in an industry where temporary layoffs or breaks in service are common;
  • the employer has a policy in place to warn employees that temporary layoffs are possible when there is a downturn in business or a shortage of work; and/or
  • the employer continues to provide benefits to laid off employees during the layoff term

Despite this, employment contracts should incorporate a standard lay off clause protecting the employer’s right to temporarily lay off employees in accordance with the ESA and without further notice or compensation.

 

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TESTING AND SCREENING EMPLOYEES FOR THE VIRUS TO PROTECT OTHERS - WHAT IS ALLOWED? WHAT ABOUT PRIVACY? WHAT CKL BUSINESSES AND EMPLOYEES NEED TO KNOW

While essential workplace employers have a statutory duty to take reasonable steps to protect the health and safety of employees, privacy laws still apply during the pandemic.

Privacy laws impact what employers are permitted to do in terms of screening and monitoring employees during the COVID-19 crisis.

Ontario’s Privacy Commissioner has not yet provided any guidance with respect to COVID-19 testing and screening by employers during the pandemic.

While the Privacy Commissioner has expressed that privacy laws continue to apply in these circumstances, it has also qualified that such laws are not meant to be applied as barriers during the course of public health emergencies.

In other words, privacy laws should not obfuscate employers taking reasonable precautions to ensure the health and safety of employees.

Can employees be asked if they have COVID-19 symptoms?

Employers should not employees if they have virus symptoms, if employees are not displaying symptoms.

Employers must have reasonable grounds to believe an employee is symptomatic and, if so, requesting information from the employee may be appropriate.

What is reasonable in the circumstances depends on the workplace – some workplaces inherently involved more risk, such as hospitals and long-term care facilities.

Employers should adopt an infectious disease or communicable illness policy requiring employees to proactively disclose if they have, or live with someone who has, COVID-19 symptoms.

Under the policy, an employee should be required to:

  • inform his or her employer of illness-related symptoms through a confidential process;
  • self-isolate at home;
  • follow the advice of the relevant public health agency on treatment and recovery; and
  • keep the employer updated regularly.

Can employees be required to provide a doctor's note?

Most physicians in Ontario are not able to test for COVID-19 currently. Testing has been an ongoing challenge throughout Ontario.

In addition, provincial and federal health directives discourage us from attending a physician’s office, meaning physical examination is unlikely and, therefore, the quality of any examination may be unsatisfactory.

While employers are generally entitled to request a physician’s certificate or note if an employee is absent from work, such as on sick leave, doing so due to COVID-19 is impracticable.

If an employee is a confirmed case, or has been symptomatic, a physician could potentially opine on whether the employee continues to be symptomatic, but not likely be able to verify whether the employee is infection free.

Accordingly, while the employer may be entitled to request a doctor’s statement, it is likely to have compromised value.

Can employees be required to be tested before going to work?

COVID-19 in testing in Ontario is not widely available – it must be directed by a healthcare authority. It cannot be obtained on request of any person. 

For most of us, obtaining a test absent a directive to do so is unlikely.

Therefore, employers are not entitled to require testing before employees attend their work generally.

There may be exceptions to this for higher-risk workplaces, such as hospitals and long-term care facilities.

Similarly, if the employer has reasonable grounds to believe infection is present, such as symptoms being displayed, employees may be rightfully requested to leave their workplace and contact the local health unit, or other health authority, to determine if assessment and testing should be undertaken.

Can employees’ temperatures be taken before allowing them to attend work? Is thermal testing allowed?

A primary symptom of the virus is an elevated body temperature of above 38˚C (100.4˚F).

Touchless temperature scanners are available to employers to use, but can they?

This issue is unclear and controversial, including because an employee may have a temperature without having the virus.

On the other hand, thermal testing is non-invasive, generates fairly objective and instant results and tests for one of the primary symptoms of COVID-19.

So, employers may consider using thermal testing, but not randomly in the workplace, but rather only if they have reasonable grounds for suspecting an employee may be symptomatic.

Ideally, an employee would consent to a temperature screen in the workplace, further minimizing the risk of liability for a privacy violation.

To utilize thermal screening effectively and to minimize risk of privacy violation, employers should consider:

  1. if possible, retaining a third party to conduct the thermal screening;
  2. ensure any other employee engaging in the screening is duly and properly trained and qualified to use the touchless temperature scanner and is knowledgeable about COVID-19 symptoms and what other factors may influence screening results;
  3. providing the tester with personal protective equipment, including: surgical (latex) gloves, face masks, a lab or disposable coat and alcohol-based hand sanitizer in all workplace areas where testing is undertaken;
  4. asking employees who attend work if they are displaying any flu-or-cold-like symptoms, such as coughing, breathing trouble, fever, pink eye, etc., or otherwise feeling ill for any reason;
  5. asking employees if they have had any contact within the past fourteen days with any other person who is a confirmed, or suspected, case of COVID-19;
  6. asking the consent of employees before undertaking the thermal testing – if there are reasonable grounds for suspecting an employee may be infected, but the employee refuses conduct, the employee may be asked not to attend the workplace due to the risk of potential contamination of others;
  7. conducting the testing in a private area, beyond the observation and earshot of others; and
  8. not collecting, recording, storing, using or disclosing for any reasons the information collected other than solely for determining whether the employee should be permitted to enter the workplace.

If an employee Employees thermal tests at at or above 38˚C (100.4˚F), or the employers “yes” to any of the screening questions, the employee should be advised to leave the workplace and stay at home, self-isolate, contact their physician or the local health unit for further assessment and next steps and leave home only for essential reasons.

Thermal testing and screening questions are reasonable methods to protect a workplace from a potential outbreak of COVID-19.

Provided that employees consent to being tested, the test results are not recorded, and the tests are conducted safely and privately, liability for potential violation of privacy should be minimized, if not eliminated entirely.

 If any testing or screening is conducted, how should that information be handled?

There is no decisive, clear statutory privacy-related laws in Ontario regarding implementing and conducting thermal testing in workplaces.

Therefore, employers must adhere to “best practices” to avoid potential privacy violations at common law.

If thermal testing is utilized, the personal information obtained from the employee through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than solely determining whether the employee should be permitted to enter the workplace.

In addition, any personal information collected should be anonymized prior to recording, if recording is even required.

Any personal information collected should also be safeguarded against unauthorized use or disclosure.

The information collected should be limited as much as possible to fulfill the purpose of testing, and test records should not be collected, stored, used or disclosed for any purpose other than the screening context.

Ontario’s Human Rights Code Applies to all Workplace Screening and Testing:

Currently, Ontario’s Human Rights Commission indicates that medical assessments in the workplace to determine an employee’s ability and fitness to perform his or her employment duties may be permissible in these circumstances under Ontario’s Human Rights Code.

Despite this, personal information collected by medical tests may have an adverse impact on employees with other disabilities.

Therefore, employers should only obtain information from medical testing that is reasonably necessary in the circumstances to evaluate the employee’s fitness to perform on the job and any restrictions that may limit this ability, while excluding information that may identify a disability.

Based on this, touchless thermal scanning properly undertaken is unlikely to expose employers to tenable human rights and discrimination-related claims.

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BECAUSE OF AND DURING COVID-19, CAN EMPLOYERS LAY OFF OR FIRE EMPLOYEES WITHOUT HAVING TO PAY THE USUAL SEVERANCE? WHAT YOU NEED TO KNOW.

Many employers in the City of Kawartha Lakes, particularly those designated as “non-essential” have been forced to scale-down or cease operating, including by provincial emergency order. Even “essential” workplaces have been forced to lay off, place on infectious disease leave or terminate employees due to the pandemic. Uncertainty abounds for everyone, in terms of the legal rights of both employers and employees.   

The virus does not discriminate – it affects all marketplaces, both bricks-and-mortar businesses and those operating by e-commerce. 

For more information from us about whether to lay off, terminate or place an employee on a temporary leave of absence, go here: http://wardlegal.ca/31585663827849.

However, during this unprecedented uncertainty, the key question is whether employers are able to terminate an employee, including by failing to recall them after a temporary lay off, without paying the employee statutory minimum entitlements under Ontario’s Employment Standards Act, 2000 (the “ESA”), due to the so-called “frustration” of the employment agreement (i.e., due to the pandemic).

If an employment contract is “frustrated” (a legal concept), an employer is not required to give, or pay, notice of termination or pay in lieu of notice.

The ESA excuses an employer from giving, or paying, statutory termination pay for any employee, “whose contract has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance,” unless the “impossibility or frustration is the result of an illness or injury suffered by the employee”.

In addition, the ESA relieves an employer from paying statutory severance pay for any employee, “whose contract of employment has become impossible to perform or has been frustrated”, unless the impossibility or frustration is the result of: (a) a permanent discontinuance of all or part of the employer’s business because of a fortuitous or unforeseen event; (b) the employer’s death; (c) the employer’s death, if the employee received a notice of termination before his or her death; or (d) an illness or injury suffered by the employee. 

Historically, the Courts have interpreted these as catastrophic events causing an employer to shut down, or substantially scale down operations, such as fires, floods, natural disasters or so-called “Acts of God”.

It remains unclear in Ontario, however, whether businesses closing, or reducing employees due to scaled-down operations, due to the pandemic will be viewed by Courts and the Ontario Government as being caused by a “fortuitous or unforeseeable event or circumstance” making the employee’s job impossible to perform.

Beyond the ESA, generally if an employment contract does not contain a force majeure clause, or the clause is of no assistance because of its terms, an employer may, in very limited circumstances, also be able to argue that it is relieved from its contractual obligations by claiming the contract is “frustrated” at common law.

Legally, frustration occurs when an event, through no fault of either party, creates a new circumstance which has the effect of making the contract impossible to fulfill. In such situations, both parties are discharged from further performance of their obligations under the contract. The parties are relieved of their obligations because to force performance despite the new and changed circumstances would be to order the party to do something fundamentally different from what the parties originally bargained for.

The threshold required for frustration at common law is a very high one. In order to rely on it, a party must show that the original reason for entering into the transaction was completely destroyed by a supervening event.

Generally, as in the case of force majeure clauses, our Courts have not accepted economic disruption or falling markets to constitute an event that would frustrate a contract. Courts have generally held that changes to the circumstances must amount to an unforeseen event capable of triggering frustration at common law and that, even if there were, it would be incumbent on the employer to adduce real evidence in support thereof. Courts have also recognized that a business failure caused by cancellation of orders, insolvency, landlord eviction or loss of key personnel could result in an employer not being able to provide continued employment to employees in a workplace. However, generally speaking, these events are considered to be a part of the normal business cycle and cannot be construed as "unforeseen". A business failure for these reasons would not discharge an employer's obligation to provide individual compensation for length of service or group termination under the ESA or at common law, presumably. 

Arguably, employers may take the position that their employment agreements have been frustrated because COVID-19 rendered it impossible to perform due to:

• unforeseeable or unpreventable causes beyond the employer's control; or            

• a fortuitous or unforeseeable event or circumstance;              

• the temporary or indefinite termination of employ because of lack of work; or

• the actions of any government authority that directly affects the operations of the employer, like being designated as “non-essential” (but being permitted to operate by e-commerce, remotely, etc.).

These exceptions would, it appears, clearly be invoked by the COVID-19 pandemic generally and, if so, an employee may not be entitled to any severance. 

Logically, if the closure of a business, or reduction in work force, is directly related to COVID-19 and there is no other manner in which the employee could perform work in a different way, such as remotely, these exceptions may apply to exclude employees from receiving both statutory and common law-based compensation for length of service and group termination pay.

However, this may not always be the case.

If an employer terminates an employee for reasons that are not directly related to COVID-19, or if the employee’s work could still be done (albeit in a different way), these exemptions would not seemingly apply.

Each situation is very likely to be determined on a case-by-case basis. 

A business failure caused by cancellation of orders, insolvency, landlord eviction or loss of key personnel could result in an employer not being able to provide continued employment to employees in a workplace. These events are considered to be a part of the normal business cycle and cannot be construed as "unforeseen" generally. A business failure for these reasons would not discharge an employer's obligation to provide individual compensation for length of service or mass termination under the ESA. Similarly, business failure for reasons of cancellation of orders, insolvency, Therefore, the employer would not be relieved of the obligation to pay at least statutory termination and severance pay.

Temporary illness, injury or disability is not considered to be an unforeseeable event or circumstance that would discharge an employer’s obligations under the ESA, either. However, if medical evidence shows that an employee is permanently disabled as a result of COVID-19 and will never be able to return to the workplace, there may be frustration at common law, relieving the employer of paying beyond the statutory minimums. Employers must be mindful of their duty to accommodate under Ontario’s Human Rights Code, too.

Therefore, the key points:

  • each situation is likely to be judicially addressed on a case-by-case basis;  
  • it remains the responsibility of both the employee and employer to work together and be flexible to find ways for the employee to perform work in a different way, even if modified, such as working from home, which many employees are now doing;
  • the ESA sections referred to above relates only to statutory termination and severance pay, not any applicable common-law entitlement; and
  • the test is basically “impossible” to perform – a high threshold for employers to meet.

To terminate any employee, or fail to recall any employee after a temporary lay off, an employer would effectively have to prove that it was impossible to continue employing the employee, in any way or capacity, causing the parties’ relationship to be frustrated. 

Employers will need to prove, in each case, that the employee’s employ was impossible to maintain, or frustrated by, COVID-19 (which must be proved as a fortuitous and unforeseen event effecting each, specific employee), failing which the employee will be entitled to both statutory and common law notice entitlements.

 

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MORE HELP TO CKL EMPLOYERS ENROLLED IN WORKPLACE SAFETY AND INSURANCE - A FULL RELIEF PACKAGE FROM THE WSIB - WHAT YOU NEED TO KNOW.

To offer more assistance to CKL employers who are enrolled, the Workplace Safety and Insurance Board (“WSIB”) has now announced a "relief package", permitting employers to defer premium reporting and payments until August 31, 2020.

The WSIB has also announced that the costs for COVID-19 claims will be allocated on a Schedule-wide basis and, therefore, will not result in premium increases for 2020.

Schedule 1 employers are eligible to defer their reporting and payments until August 31, 2020. This applies to monthly payments due March 31, April 30, May 31, June 30, and July 31, 2020, to quarterly payments due April 30 and July 31, 2020, and to annual payments due April 30, 2020.

Schedule 2 employers—–including certain publicly funded organizations and certain businesses involved in federally regulated industries—are also eligible to defer reporting and payment obligations.

No interest will accrue and no penalties will be charged during the deferral period.

Notably, eligible employers are not required to opt-in to the deferral - it is automatic. For those employers electing not to participate, reports may still be submitted online and payments may can be made online or via mail.

The WSIB has also announced that there will be no change in premium rates for 2020, aimed at facilitating employees' ability to comply with public health orders, such as self-isolation or quarantine orders. This will not, however, change employers’ obligations under Ontario's Occupational Health and Safety Act.

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COVID-19: HIRE YOUTH IN THE CKL (15 TO 30), INCLUDING STUDENTS - 100% WAGE SUBSIDY NOW AVAILABLE - WHAT BUSINESSES AND NON-PROFITS NEED TO KNOW

To facilitate the employ of our youth in the City of Kawartha Lakes, those between 15 and 30, including students and summer students, the federal government has changed, temporarily at least, its Canada Summer Jobs program. 

Enhanced wage subsidies are now available for these potential employers:

  • not-for-profit organizations;
  • the public sector; and
  • private sector organizations with 50 or fewer full-time employees across Canada.

What You Need to Know:

  • wage subsidy for private and public sector employers has been increased - they are eligible to receive up to 100% of the minimum hourly wage for each employee (previously this was only available to not-for-profit employers);
  • the end date of employment has been extended from August 28, 2020 to February 28, 2021 to address delays to the start date of summer jobs caused by the pandemic;
  • employers have more flexibility to adapt their projects and job activities to support essential services;  
  • employers may hire on a part-time basis (less than 30 hours per week) (previously employers were required to provide full-time positions, between 30 to 40 hours per week);
  • other eligibility requirements remain unchanged, including the necessary time of employee, being between 6 and 16 weeks; and
  • placements can begin as of May 11, 2020.  

Although the call for Canada Summer Jobs applications for the 2020 season ended on February 28, 2020, the federal government has announced it is attempting to identify organizations providing essential services that could offer youth jobs, but did not previously apply for the program. 

The federal government also indicates that it will co-operatively work with employers to ensure that work options reflect public health requirements and advice related to COVID-19.

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I'M LAID OFF - DO I HAVE TO BE RECALLED? SHOULD I SUE MY EMPLOYER FOR WRONGFUL TERMINATION? CAN MY EMPLOYER DO THIS? EMPLOYERS AND EMPLOYEES IN THE CKL - WHAT YOU NEED TO KNOW ABOUT LAY OFFS DURING THE PANDEMIC

Due the shutdown of non-essential workplaces, effective March 24, 2020, many employers have laid off, or will continue to consider temporarily laying off employees, particularly if those employers do not qualify as “essential workplaces”.

This is not a risk-fee, easy-to-do step by an employer, despite the catastrophic circumstances.

JUDGE-MADE LAW IN ONTARIO – LAY OFF CAN BE A TERMINATION OF EMPLOY:

Generally, at least before the pandemic, Ontario employers had no free-standing right, statutorily or otherwise, to lay off employees.

Rather, an employee may be laid off only if such a right is:

  1. expressly or impliedly contemplated by the contract of employment; or
  2. expressly agreed to by the employee.

Employers who lay off employees contrary their employment contracts are liable to provide those employees with reasonable notice or pay in lieu, resulting in potentially costly litigation and severance obligations.

Similarly, employees who decline to consent to a layoff must be treated, and provided with notice, as though terminated without cause.

The refusal of an employee to accept the proposed layoff is not a sufficient basis to allege cause for termination.

Whether the or not right to lay off an employee is contemplated by an employment contract, and whether or not a temporary lay off is appropriate for your business, requires both legal and factual analysis.

However, given the emergency declarations by both the federal and provincial governments, including the ordered closure of non-essential businesses in Ontario, this existing law is now entirely uncertain.

These issues have yet to be addressed and resolved by our Ontario Courts, most of which are operating on skeletal resources currently.

Accordingly, the pandemic is very likely to force changes, at least temporarily, to the law regarding lay offs in Ontario, mostly because there cannot be a flood of wrongful termination claims inundating a system that will already be challenged by lack of resources and judicial catch-up.

STATUTORY LAY OFFS IN ONTARIO:

Despite the above, Ontario’s Employment Standards Act, 2000 (the “ESA”) allows employers to invoke a temporary layoff, which does not amount to a termination or severance of employment.

Temporary Lay Off – Defined:

A temporary lay off is:

1. a layoff of not more than 13 weeks, in any period of 20 consecutive weeks;

2. a layoff of more than 13 weeks, in any period of 20 consecutive weeks, if the layoff is less than 35 weeks in any period of 52 consecutive weeks and:

  • the employee continues to receive substantial payments from the employer;
  • the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan;
  • the employee receives supplementary unemployment benefits;
  • the employee is employed elsewhere during the layoff and would be entitled to receive supplementary unemployment benefits if that were not so;
  • the employer recalls the employee within the time approved by the Director of Employment Standards;
  • in the case of an employee who is not represented by a union, the employer recalls the employee within the time set out in an agreement between the employer and the employee; or

3. in the case of an employee represented by a union, a layoff longer than a layoff described in clause 2 above, where the employer recalls the employee within the time set out in an agreement between the employer and the union (i.e., recall rights in a collective agreement).

Any employers who temporarily lays an employee off, without specifying a recall date, is deemed not to have terminated the employ of the employee, unless the period of the layoff exceeds that of a temporary layoff.

So, if a layoff exceeds this period above, an employee will be deemed to have been terminated and, therefore, will be entitled to ESA termination pay and severance pay, if applicable.

In addition to providing pay in lieu of notice when a layoff exceeds the period in which it is considered temporary, employers in Ontario must provide employees who have more than five years of service with statutory severance pay when the layoff exceeds 35 weeks in a 52 week period. Similarly, federally regulated employers are required to pay statutory severance pay when a layoff exceeds certain timeframes.

Employers are not required to provide employees with notice in advance of a temporary layoff, but unionized employers may be subject to notice requirements under their collective agreements, which may create significant difficulty due to the Ontario Government’s reasonably unexpected order.

In a unionized workplace, there may also be layoff and recall procedures that must be followed.

In addition, if the layoff of a unionized employee extends beyond 34 weeks (i.e. lasts for 35 weeks or more) and the employer and the union have an agreement that requires a recall period of 35 weeks or more, the employee may elect to take statutory termination pay and severance pay, if applicable, or retain their recall rights, but not both.

Mass Layoffs:

The notice/pay in lieu of notice to which employees are entitled increases significantly when a layoff is considered a mass layoff. Layoffs are considered to be mass layoffs when:

  • more than 10 employees are impacted within certain periods of time in New Brunswick, Newfoundland and Labrador, Nova Scotia and Saskatchewan; and
  • more than 50 employees are impacted within certain periods of time in Alberta, BC, Manitoba and Ontario.

In addition, employers in many provinces must provide notice, sometimes in a specific form, to the government. The same applies for federally regulated employers.

Exceptions:

If the lay off exceeds the required temporary period, there are also exceptions to an employer’s obligation to provide notice/pay in lieu of notice, including severance pay, if applicable, under the ESA, such as:

• when the employment contract is impossible to perform due to:                      

• unforeseeable or unpreventable causes beyond the employee's control; or            

• a fortuitous or unforeseeable event or circumstance;                   

• the temporary or indefinite termination of employment because of lack of work; or

• the actions of any government authority that directly affects the operations of the employer.

These exceptions would, it appears, clearly be invoked by the COVID-19 pandemic and, if so, an employee may not be entitled to any statutory pay. 

When employees are temporarily laid off, employers should issue Records of Employment, so the employees may apply for Employment Insurance (“EI”) benefits, if they qualify.

SO WHAT NOW?

Historically, even thought the ESA permits lay offs, if there is no term in an employment agreement (express or implied) permitting temporary layoffs (or in some cases an established practice relating to temporary layoffs), a layoff, even if intended to be temporary, may result in the risk of constructive dismissal claims. In other words, even if a temporary layoff under the ESA is carried out properly, such that employment is not deemed terminated under the ESA, if there is no agreement to the contrary and/or a well established practice, a unilateral layoff by an employer may result in triggering a termination of employ, pursuant to Ontario’s common law (i.e., Judge-made law).

However, COVID-19 is unprecedented. As a result, it is doubtful that the traditional legal approach would prevail, if an employee were to sue due to being temporarily laid off. Arguably there is an implied term in every employment relationship that a temporary lay off would be permissible in these catastrophic circumstances, particularly if an employer has been ordered shut down by the Government.

In addition, the virus and its extraordinary implications may create an argument that an employment relationship has been frustrated, unable to be performed due to circumstances beyond the parties’ control or management. Frustration is a legal principle providing that an unforeseen change to the circumstances underlying the contract, through no fault of the parties, renders the contract incapable of performance.

Moreover, a constructive dismissal claim may arise where there has been a unilateral change by the employer, which substantially alters an essential term of the parties’ employment contract, verbal or in writing. Therefore, if a change to the terms and conditions of employment are not imposed by the employer, but are rather imposed as a result of a mandatory closure ordered by the Ontario Government, it is very questionable in these extraordinary circumstances whether an employee would be able to successfully argue that the temporary layoff constitutes a constructive dismissal. An employee claiming constructive dismissal also has an obligation to mitigate any damages they allege to have suffered, which means that if a laid off employee is recalled to work and declines, a Court may subsequently determine that the employee failed to mitigate his or her damages, reducing the amount awarded for the termination.

Some employers, if financially able to do so, should consider continuing benefits and/or providing supplementary unemployment benefits to qualify for the longer temporary layoff period under the ESA.

Finally, employees are also entitled to a job-protected, unpaid leave of absence if the employee will not be performing the duties of his or her position due to emergency declared under Ontario’s Emergency Management and Civil Protection Act (“EMCPA”). Employees may also qualify for infectious disease leave of absence, too, being a job-protected, unpaid leave of absence as well, for which EI benefits are also available.

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HEALTH AND SAFETY OF EMPLOYEES WORKING AT HOME - TIPS TO EMPLOYERS IN THE CKL TO AVOID LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC

What are the employer’s obligations to an employee when an employee is not working in the office? With so many employees now working from home, employers’ health and safety obligations need to be considered. 

ONTARIO HEATH AND SAFETY LEGISLATION DOES NOT APPLY TO WORKING AT HOME:

The health and safety of employees is largely governed by Ontario’s Occupational Health and Safety Act (the “Act”).

However, for employees working at home, or remotely, as it stands, the Act does not apply to those circumstances. 

Sub-section 3(1) the Act provides that it “does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.”

Employers cannot reasonably be expected to attend an employee’s home and evaluate risks, nor be expected to assume liability for the safety of their employees in their own home environments, over which the employer has no control. 

However, there may still be risks in an employee’s home, which ordinarily would be covered by the Act – both employees and employers should discuss potential safety issues for the working-at-home arrangements, even if employers are not statutorily required to do so. 

Despite this, due to the pandemic, it is entirely unclear if this legal position will be applied in future.

WORKPLACE VIOLENCE AND HARASSMENT:

The Act addresses directly workplace violence and harassment, including requiring employers to mandatorily have an adequate workplace policy.

These protections should still apply to employees working at home, sensibly.  

Employees may still be expected to interact with co-workers, customers and clients, for example, including virtually. While there may be less risk of physical contact while remote working takes place, there remains the risk of other forms of violence or harassment, which is prohibited in the workplace by the Act. There need not be a physical office interaction for violence or harassment to be experienced.  

Employers should consider how to ensure safe working conditions for their employees who are working at home. While employers obviously are not going to be doing home visits to make sure there are no cords to trip on or boxes about to fall on anyone’s head, they can do things like ensure that workers are being adequately supervised, even when working remotely. A clear and reasonable remote working policy can take an employer a long way. 

Effectively, there is simply a lack of caselaw decisions on this point and no clear direction on whether the Act will apply to working at home, or not, particularly during this pandemic and the unprecedented circumstances it brings.

TIPS TO EMPLOYERS TO MINIMIZE THE RISK OF LIABILITY AND LAWSUITS DURING AND AFTER THE PANDEMIC:

Therefore, employers are well-advised to carefully consider these issues during the pandemic, or at any other time, particularly for work-at-home arrangements with remote employees:

[1]      Health and Safety:

  • the employer’s obligations under the Act in terms of health and safety and its responsibility to take preventive measures continue during this period of telework; and
  • the potential that the workplace could be considered to include an employee’s home must be considered, including the employee’s workstation set up and ergonomics.

[2]     Mental Health, Psychological and Sexual and Other Violence and Harassment:

  • employers must strive to promote and preserve civility and courteous conduct, especially while using new methods of communication, like virtual teleconferencing, etc.;
  • employers should provide etiquette guidelines for virtual communication between co-workers and customers;
  • employers must discourage misconduct or failure to engage in proper teamwork – new technology does not alter this important objective;
  • employers have a legal responsibility to prevent and address psychological, sexual and other harassment situations;
  • employers may be responsible for events that occur outside the usual workplace, but relate to work;
  • employers should adopt a formal working-at-home policy, clearly setting out the expectations; and
  • employers should review their complaint and inquiry procedures, to ensure they may be adequately processed outside of the workplace, too. 

[3]      Employment Standards Act, 2000:

Employers must also be mindful of their statutory obligations and minimum labour standards, which apply to those working at home, too, including:

  • modifying work schedules;
  • managing overtime; and
  • addressing costs associated with working from home.

[4]      Privacy and Confidentiality:

It is critical for employers to consider and manage effectively the privacy and confidentiality of work-related information, including:

  • to accommodate properly the contractual performance of work in the employee's home;
  • for transporting and storing work documents; and
  • establishing work spaces at home to ensure that information/documents are kept confidential and ethical obligations are respected and adhered to strictly.

Caselaw References:

Decision No 2249/16, 2016 ONWSIAT 2410

Watkins v. The Health and Safety Association for Government Services, 2013 CanLII (ON LRB)

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COVID-19: YOUR UPDATED CHEAT SHEET FOR THE 75% AND 10% WAGE SUBSIDIES TO KEEP OR HIRE BACK EMPLOYEES IN THE CKL - WHAT YOU NEED TO KNOW

Update to the CKL – the Canada Emergency Wage Subsidy, per Bill C-14, the COVID-19 Emergency Response Act, No. 2, passed April 11, 2020:

NEW SOURCE DEDUCTION/REMITTANCE REFUND:

  • a new 100% refund for certain employer-paid contributions to Employment Insurance and the Canada Pension Plan, covering 100% of employer-paid contributions for eligible employees for each week in which the eligible employer receives the 75% CEWS - employers are required to continue to collect and remit employer and employee contributions to each program, as usual; and
  • employers may apply for the new refund at the same time that they apply for the 75% CEWS.

NOT-FOR-PROFITS AND CHARITIES:

  • not-for-profits may include membership fees; and
  • not-for-profits and charities may include or exclude (by election) revenue from government funding – whatever decision is made will continue to apply for the entire 75% CEWS period.  

CALCULATION OF “ELIGIBLE REMUNERATION” AND THE SUBSIDY:

  • subsidy is 75% of the amount of “eligible remuneration” paid to an employee;
  • a maximum benefit of $847 per week per employee;  
  • applies to individual employee salaries up to $58,700 annually;
  • no cap on the total subsidy an employer may claim;  
  • subsidy is taxable to the employer at year end (as “government assistance”);   
  • “eligible remuneration” includes salary, wages and other remuneration, like taxable benefits paid to an eligible employee, but does not include severance pay or stock options benefits, etc.; and  
  • no guidance on whether commissions, bonuses and pay incentive plans may be included.  

GENERAL:

  • system expected to be operational in May, 2020;
  • employers now able to apply for the CEWS through the Canada Revenue Agency's My Business Account portal here: https://www.canada.ca/en/revenue-agency/services/e-services/e-services-businesses/business-account.html;
  • reportedly the funding will flow within two to five weeks;  
  • more details about the application process are forthcoming;
  • what you select for your comparative calculation will apply for the full CEWS period (i.e., current month or the same month in 2019 OR the average in Jan. and Feb. 2020);
  • if you apply and are later held to be ineligible for the 75% CEWS, you will be required to repay the subsidy, plus an additional 25% penalty - penalties for fraudulent claims are severe and may also include additional fines and possible imprisonment; and
  • Note: to calculate your revenues for the 75% CEWS, you may use either the ‘cash accounting’ method (i.e., when payments are actually received by you) or the “accrual accounting” method (i.e., when you issue an invoice), which may offer more flexibility for your qualification application – whatever you elect, you must continue with that approach for the duration of the program.
  •  
  • APPLICATION FOR THE 75% CEWS:
  • entitlement to the subsidy will be based entirely on the salary or wages actually paid to employees - employers will need to pay the salary or wages to their employees, and, if eligible, will be repaid for those salaries or wages by the government through this subsidy program;
  • eligible employers will be able to access the subsidy by applying through the Canada Revenue Agency (CRA) My Business Account portal as well as a web-based application expected to be available in the next three to six weeks;
  • employers will need to keep records demonstrating their reduction in arm's-length revenues and remuneration paid to employees;
  • the government has indicated that funds will be available in approximately three to six weeks - for those employers not currently signed up for direct deposit, it will be beneficial to sign up for quicker access to funds through this program;
  • all employers will be expected to make best efforts to top up salaries to pre-crisis levels;
  • the government will consider implementing an approach to limit duplication between the two programs (CEWS and the CERB) in order to encourage all eligible employers to quickly rehire employees - according to the government, this could include a process to allow individuals rehired by their employer during the same eligibility period to cancel their CERB claim and repay the CERB payment for the relevant period;
  • if you have claimed the 10% Temporary Wage Subsidy before claiming the 75% CEWS, you will be required to reduce the latter claim by the amount previously received; and
  • municipalities do not qualify.  

THE 10% TEMPORARY WAGE SUBSIDY:

The 10% Temporary Wage Subsidy remains (“TWS”) available to employers:

  • employers who do not qualify for the CEWS may still qualify for the TWS;
  • no revenue threshold;  
  • maximum cap available to businesses; and  
  • application for the subsidy is not required (unlike the 75% CEWS).
  • the subsidy is equal to 10% of remuneration paid during the eligible period, up to a maximum subsidy of $1,375 per employee and $25,000 per employer in total (i.e., all employees, full period of eligibility);
  • the eligible period is March 18, 2020 to June 19, 2020, inclusive;
  • eligible employers may reduce the amount of payroll deductions required to be remitted to the CRA;  
  • can be accessed as soon as April 15, for quarterly and regular (monthly) payroll remitters;
  • eligible businesses must have had an existing business number and payroll account with the CRA on March 18, 2020 – a new corporation cannot be established, nor can an existing corporation apply for a payroll account after March 18, 2020 to take advantage of this subsidy;
  • example: the March subsidy can be calculated for your payroll remittances due on April 15 or, alternatively, you can defer your claim to a lump sum amount later on or year end for the specific eligibility period only – if so, the Canadian Revenue Agency will pay that amount to you or, alternatively, transfer it to you as a source deduction/remittance credit; and
  • municipalities do not qualify.

More information about the CEWS is here: https://www.canada.ca/en/department-finance/economic-response-plan/wage-subsidy.html

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COVID-19 - ESSENTIAL WORKERS (AND OTHERS) ARE FEELING STRESSED AND ANXIOUS - STILL, WEED AT WORK IS NOT PERMITTED, UNLESS MEDICALLY JUSTIFIED - WHAT YOU NEED TO KNOW

Many are stressed and anxious during the pandemic. 

Still, the law on cannabis at work remains unchanged. 

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

Need an effective workplace policy for smoking, vaping and cannabis use?

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WORKING AT HOME BECAUSE OF COVID-19? TIPS AND HELP FOR DEDUCTING YOUR WORK-AT-HOME EXPENSES TO PAY LESS TAX

If you are incurring remote working expenses during the pandemic, you may be able to claim those expenses to reduce your tax payable under the Canada Income Tax Act.

Generally, employees with remote working expenses are paid either an allowance or they are reimbursed by their employer (including an “accountable advance”).

If you are paid an “allowance” for your home office expenses, the allowance should be deductible to you generally. If not, it would be a “taxable benefit” to you and not be deductible.

If you pay for your home office expenses initially, but your employer reimburses you afterwards, those expenses should be deductible generally, too.

In either case, you may be able to “deduct” your remote working expenses during the pandemic against your taxable income and, as a result, pay less tax. 

If you receive either an allowance or a reimbursement, which the Canada Revenue Agency deems a “taxable benefit” to you, your employer could also “gross up” your benefit by paying the additional tax payable by you – this is also a taxable benefit.

If you have remote working (i.e., home office) expenses while working remotely during the pandemic, here are some tips that you should consider, including speaking to your tax advisor for assistance and advice when you file your (now deferred) personal income tax form:

REIMBURSEMENTS BY YOUR EMLOYER FOR REMOTE WORKING EXPENSES:

  • you will need to give your employer your organized receipts (information) about your remote working expenses
  • your employer can reimburse you for those that are reasonable and related to you performing your employment duties
  • if an expense is a mix of both business and personal, your employer will likely have to report your reimbursement and you will likely be taxed on and for the personal component as a taxable benefit
  • if it is difficult to allocate the expense between business and personal, the CRA expects that a reasonable position will be taken by you and your employer
  • some mixed-use expenses cannot be tracked and documented accurately by actual receipts (i.e., mobile phone usage and/or data usage, unless used solely for business and, if so, your employer is unlikely to be able to reimburse you and, if it does, it is likely this expense may be deemed a taxable benefit to you
  • if your employer reimburses you for a “capital expense”, such as a new computer, printer, other hardware, or fixing up your home to accommodate you working remotely, you will be deemed to have received a taxable benefit, taxable to you, directly, but your employer is likely able to deduct the expense in full as a business expense, unless the CRA deems it unreasonable in the circumstances  
  • using a reimbursement, rather than an allowance, is likely preferable if you have one-time or irregular remote working expenses that you experience during the pandemic

MONTHLY ALLOWANCE FOR HOME OFFICE EXPENSES:  

  • if you receive a flat-rate allowance for your home office expenses, it will likely be a taxable benefit and, therefore, will be added to your income for tax purposes
  • if, for example, you earn an annual salary of $50,000, plus a remote office allowance of $50 monthly, the allowance would be added to your income, being $50,600
  • of the $50 monthly allowance, after you pay tax on it, you put in your pocket that amount, less your marginal tax rate on that amount, a net benefit to you (i.e., your “after-tax” allowance)
  • your employer should be able to deduct your allowance in full, as a business expense, unless the amount is deemed by the CRA to be unreasonable in the circumstances

DEDUCTING YOUR REMOTE WORKING EXPENSES:

To be able to deduct any of your remote working expenses against your taxable, employment income:

[1] your employment contract must require that you pay for the expenses at issue;

[2] your employer must sign a T2200 form, certifying the conditions required for your deductibility are met; and

[3] the expenses you claim for deduction must not have been reimbursed to you by the employer.

  • you may be able to deduct some of your remote working expenses against your taxable income on a reasonable basis
  • to deduct home office expenses: [a] your home office must be in the place where you principally perform your employment duties; and [b] your home office must be used exclusively during the period for which the expense relates (to earn income);   
  • examples: office supplies (stationary, toner, ink, cartridges, postage, etc.), some use of your mobile ‘phone expense, some use of your monthly Internet usage (i.e., data usage) and at least a portion of the expenses related to your remote working space at home (such as rent, electricity, maintenance, heating, etc., for only for your designated remote working area or space)  
  • you can only deduct the amount directly related to the performance of your duties of employ (a limitation on your deductibility)
  • effectively, to be deductible, your expense must be a supply you use or consume directly for the purpose of earning your employment income (on a reasonable basis), rather than a fixed cost that is not consumed by you during and for your employ
  • example: you cannot deduct hard-cost equipment that you do not consume directly to earn your income, such as computers, peripherals, etc.
  • if you earn an annual salary, you cannot deduct the expense of your mortgage, property taxes, etc. for the home you own and remotely work within
  • if you earn commission income only, you may be able to deduct a portion of your home expenses, including property taxes, home insurance, but not your mortgage payments

Note that if you are paid an allowance for your remote working expenses, which is included in your income as a taxable benefit, you potentially could still deduct those expenses if you incurred them to perform your duties of employ, provided the conditions above are satisfied.

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CKL BUSINESS OWNERS - EXPANDED/RELAXED QUALIFICATION FOR THE 75% WAGE SUBSIDY - WHAT YOU NEED TO KNOW TODAY

For the Canada Emergency Wage Subsidy [75% wage subsidy] (the “CEWS”), today the federal government announced (subject to Parliamentary ratification):

[1]      you will have the option of using January and February of 2020 as your reference periods, rather than the original year-over-year benchmarks, under certain conditions;

[2]        you may also be permitted to use January and February, 2020, respectively, as your reference periods to calculate your decline in revenue (In addition to the original calculation periods for calculating if you meet the threshold 30% reduction in revenues), including newer businesses (i.e., start ups) that may not have the necessary historical revenue information;

[3] to claim the subsidy for March of 2020, only a reduction in revenue of 15% will be required, rather than 30%; and
[4] after March, 2020 (i.e., two additional months), the decline must still be at least 30%.

Here is more information from us about the CEWS and how you qualify and apply: http://wardlegal.ca/31585663827857

 

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MORE SUPPORT TO STUDENTS AND YOUNG CANADIANS (15 TO 30) - CHANGES TO THE CANADA SUMMER JOBS PROGRAM ANNOUNCED TODAY

Today, April 8, 2020, the federal government announced temporary changes to the Canada Summer Jobs program, intended to help employers hire summer staff and provide young Canadians access to the jobs they need during this unprecedented time.

The government declared this program upgrade will help create up to 70,000 jobs for those between the ages of 15 and 30 years of age.

The temporary changes to the program:

  • an increase to the wage subsidy, so that private and public sector employers can also receive up to 100 per cent of the provincial or territorial minimum hourly wage for each employee;
  • an extension to the end date for employment to February 28, 2021;
  • allowing employers to adapt their projects and job activities to support essential services; and
  • allowing employers to hire staff on a part-time basis.

According to the government, these changes will help youth stay connected to the labour market, save money for their future, and find quality jobs in safe, inclusive, and healthy work environments.

Other measures have previously been announced to assist young Canadians during the crisis, including: [1] a six-month, interest-free moratorium on Canada Student Loans; and [2] a 75 per cent wage subsidy for businesses that will help more employers keep part-time employees and workers over the coming months.

The Canada Summer Jobs program provides opportunities for youth to develop and improve their skills within the not-for-profit, small business, and public sectors, and supports the delivery of key community services.

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WSIB RELIEF TO EMPLOYERS - DEFERRAL OF PREMIUMS

The Workplace Safety and Insurance Board (“WSIB”) has announced that it will provide relief for employers' payments to the WSIB.

The financial relief package permits employers to defer the reporting and payment of premiums until August 31, 2020. This deferral is available to employers who report and pay monthly, quarterly or annually based on their insurable earnings.

Specifically, deferral is available for the following payments:

Monthly: March 31, April 30, May 31, June 30, July 31, Aug 31

Quarterly: April 30, July 31

Annual: April 30

This applies to Schedule 2 employers, too, which includes publicly funded organizations (municipalities, hospitals, school boards), self-funded organizations that are legislated by the province, as well as businesses who are involved in federally regulated industries. All payment obligations for Schedule 2 employers will be deferred until August 31, 2020.

There will be no accrual of interest on outstanding premium payments for Schedule 1 employers, nor will any penalties be charged during this six-month deferral period. Schedule 2 account balances will not accrue debit interest as part of the relief package. Participation in the financial relief package is not mandatory, and employers can continue to report and pay on a monthly, quarterly or annual basis.

Employers can also report now and defer payment until later.

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WORKING AT HOME CAN BE HARD FOR BOTH YOU AND YOUR EMPLOYER - TIPS AND GUIDANCE TO YOU BOTH FOR DOING IT SUCCESSFULLY

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.

If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.

Differential treatment related to this virus is not permissible.

Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.

 

 

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WORKING AT HOME IS HARD FOR BOTH YOU AND YOUR EMPLOYER - TIPS AND GUIDANCE TO YOU BOTH SO YOU DO IT SUCCESSFULLY

Virtually or remotely working (from home) can be very challenging to both employees and employers.

During this pandemic, typical work procedures and arrangements must be modified and be adaptive to the new reality.

Here is some guidance and tips to both employees working at home, and employers who now must lead them remotely.

IF YOU ARE WORKING REMOTELY OR AT HOME:

  • maintain structure;
  • plan your day, as if you are going to work (follow your morning routine, try to do the same things you would ordinarily do when starting your day, subject to your other responsibilities at home, like trying to parent children at home due to the school closures;  
  • make adjustments, if needed, to the hours you ordinarily would work in the office, because of child care and other responsibilities you may now have, because you are sharing equipment with a partner who is also working from home, or for any other reason;
  • keep your employer updated on your success with your arrangements for working remotely - they will appreciate you doing so; 
  • set up a designated space for working;
  • if you are struggling with the transition, focus on the benefits (i.e., how much commute time are you saving? Consider gas, transit, coffee, or parking savings, too);
  • use technology to stay present and connected - structure your daily schedule to accommodate communication with co-workers – find new ways to maintain connection, to help prevent feelings of isolation;
  • subject to the emergency orders and healthcare officials’ recommendations, take the time to get fresh air and exercise; even in times of self-isolation, a physically distanced walk can help maintain sanity and good health;
  • if you feel like you need more guidance when working from home, initiate regular check-ins with your manager to provide more structure;  
  • good, regular communication with your employer and co-workers is essential;
  • try not express your frustration or dismay by email or texts – talk through issues by ‘phone or virtually; and
  • give yourself a break, especially if you have children at home for whom you care – don’t be too hard on yourself; you’re only human!

IF YOU ARE MANAGING EMPLOYEES WORKING REMOTELY OR AT HOME:

Leading remotely can be challenging – some guidance to be successful:  

  • check in regularly with your employees – make them feel comfortable and connected;
  • schedule regular team meetings or virtual sessions, as well as one-on-ones, to maintain the flow of work and communication;
  • e-mail and instant messages can lack tone and create misunderstandings - lead by example by not jumping to assumptions and address potential conflict immediately;
  • even if you have known your employees for years, work to maintain strong relationships from a distance;
  • express appreciation for your team, acknowledge birthdays and other special events or occurrences;
  • encourage your employees maintain work-life balance and wellness – help them set boundaries to ensure the home is not an around-the-clock workplace;
  • set clear start and finish times for yourself, as well as breaks that would normally occur in the office;
  • let your employees know when you will be “out”, or taking a break;
  • take advantage of e-mail, instant messaging and virtual technology to facilitate different ways to communicate;
  • turn video on for one-on-ones and team meetings - help your team feel more present and engaged;
  • shift to a results-focused mindset, rather than a time-focused mindset by setting clear performance goals; and
  • facilitate more flexibility with schedules, and less anxiety for parents that may be having to split their time between managing children and work.

ONTARIO’S HUMAN RIGHTS (FOR EMPLOYEES):

Remember that employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.

If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.

Differential treatment related to this virus is not permissible.

Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.

 

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HOW MUCH REGULAR EI WILL I GET?- CAN I STILL WORK ON EI? YES, YOU CAN. HERE'S HOW IT WORKS, WITH EXAMPLES

You can work while you receive EI regular benefits, if your employer offers you work.

Here’s what you need to know:

  • you have to initially serve your one-week waiting period (for EI regular benefits only);  
  • your regular benefit will be reduced by 50 cents for every dollar of income you earn, up to your “earnings threshold”;
  • your “earnings threshold” is 90% of your regular earnings while you were employed; and
  • if you earn income beyond your “earnings threshold”, your regular benefit will be reduced dollar-for-dollar;

Here is an example:

You regularly earn $500 weekly during your employ of 40 hours weekly, which is $100 daily, gross. This is your “insurable earnings” for EI purposes.

EI’s rate for regular benefits is 55%.

So, you would be eligible to receive $275 weekly. If you earned $1,000 weekly, your benefit would be $550 weekly, and so on.

Your “earnings threshold” (i.e., 90% of your regular wage) would be $450.

Now, suppose that work an additional 8 hours weekly and, therefore, you earn an additional $100.

If so, per the one-half rule, $50 will be deducted from your regular EI benefit, leaving you with $225 from EI (plus the additional $100, directly from your employer), for a total of $325.

By working more, you can earn up to $450 weekly, or your “earnings threshold”.

You cannot earn more than your “earnings threshold” by working during your receipt of EI benefits, or your benefits will end.

Here is another example:

You work 40 hours weekly and earn $1,000, gross, in regular wages.

So, you earn $200 per day and would be eligible for EI regular benefits of $550 weekly.

Your “earnings threshold” would be $900 weekly (i.e., 90% of your regular wages).

If you work an additional 16 hours weekly, earning you an additional $400, your EI benefit will be reduced to $350, after deducting one-half of your additional $400 earnings.

In total, you earned $750 by working the additional hours ($400 additional earnings, directly from your employer, pus your $350 EI regular benefit).

You have not surpassed your “earnings threshold”, either.

 

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YOU'RE AN ESSENTIAL WORKER? STILL WORKING? WHAT ABOUT MY PRIVACY? CAN MY EMPLOYER TAKE MY TEMP? MAKE ME GET TESTED? ASK ME IF I HAVE SYMPTOMS? ANSWERS..........

If you continue to work in an “essential workplace”, as narrowed on April 2, 2020, your employer has a statutory duty to take reasonable steps to protect your health and safety, including during this pandemic.

To do so, an employer may wish to know personal information about you, particularly related to COVID-19. Those may relate to your health, whether you have had any symptoms or if you have had any health-related assessments.

Can my employer take my temperature? Make me provide a doctor’s note that I do not have the virus? Make me do a COVID-19 assessment?

All good questions. 

While the times are entirely unprecedented, including legally, privacy law in Ontario and federally continues to apply, including for employment relationships.

So, what can employers lawfully ask? Do you have to provide the information to your employer?

Below is an excellent overview of the issue to answer all of your questions and address your concerns:

1. Can I ask employees if they have any COVID-19 symptoms?

From a privacy law perspective, asking employees if they have any COVID-19 symptoms should generally be avoided if they are not displaying any symptoms. If, however, an employer has reasonable grounds to suspect that an employee potentially has COVID-19, then asking the employee if they are exhibiting any symptoms of the illness may be reasonable and appropriate. Different rules may apply depending on the type of workplace (e.g. long-term care homes where the health and safety of others is at greater risk).

Employers may want to consider implementing a communicable illness policy that requires employees to disclose if they have, or live with someone who has, COVID-19 symptoms. Under this policy, an employee meeting that criteria should be expected to inform their employer of symptoms through a confidential process, self-isolate at home, follow the advice of the relevant public health agency on treatment and recovery, and keep the employer updated.

2. Can I ask employees to provide a medical note from their doctor?

An employer is legally entitled to request a doctor's note to justify sick leave (subject to statutory restrictions in some provinces), but because the average doctor's office is currently not equipped to test for COVID-19, a doctor's note may have little to no value at this time.

Similarly, for an employee who has already tested positive for COVID-19 or was previously symptomatic, a doctor's note could indicate if they are no longer experiencing symptoms, but not whether they are free of COVID-19. The doctor's opinion would also be based on limited information since individuals who have or recently had symptoms of COVID-19 are being advised not to attend their doctor's office, meaning that it is likely the employee would not have been physically examined.

3. Can I ask employees to get tested before reporting to work?

Employers generally cannot force employees to undergo testing, and COVID-19 testing is not available on demand. Different rules may apply for certain employers in the healthcare sector.

If an employer has reasonable grounds to suspect an employee potentially has COVID-19, the employer may ask the employee to leave work and request that the employee contact the relevant public health agency and follow their directions on whether testing is appropriate.

4. Can I take employees' temperatures (for purposes of determining if they have a fever) before allowing them to attend work?

Taking employees' temperatures may potentially be a breach of the privacy rights and dignity rights of workers under applicable human rights and privacy legislation.

However, occupational health and safety (OHS) laws are important public welfare legislation. In some cases, the OHS laws may have a superseding provision that allows protecting the lives, health, and safety of both workers and members of the public to prevail over the competing values of privacy rights and dignity rights of employees.

Taking employees' temperatures may also be permitted if there is a bona fide reason, such as a demonstrated outbreak of COVID-19 in the workplace or in the community immediately surrounding the workplace, or depending on the nature of the industry (for example - food production).

Legal advice should be sought regarding whether and how best to proceed with temperature screening. Notice should be given and the tests should be done in accordance with an established protocol in order to minimize the intrusion on employees' privacy rights as much as possible.

Credit:

Lorene A. Novakowski and Kristin Woo, Fasken, Apr. 3, 2020 - https://www.fasken.com/en/knowledge/2020/04/3-covid-19-employee-privacy-issues

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COVID-19 - LAID OFF? COLLECTING EI? CAN YOUR EMPLOYER 'TOP UP' YOUR WAGES WITHOUT REDUCING YOUR BENEFITS? YES - USE A "SUB" PLAN

Employers – if you have had to temporarily laid off any employees due to the pandemic, you may have the option of temporarily ‘topping up’ their earnings during the lay offs, above and beyond their Employment Insurance (“IE”) benefits.

You can do so by using a “Supplemental Unemployment Benefit Program” (a “SUB plan”).

You can enter an agreement with the federal Government to have a SUB plan.

Wage payments  made under a SUB plan are not earnings and, therefore, these payments will not be deducted from an employee’s EI benefits.

To use this option, employers must register the SUB plan with Service Canada before it can be implemented. When a plan is submitted to Service Canada, the officer will review and ensure it complies with the necessary requirements. If needed, officers can help employers develop and revise plans to meet the requirements.

Here are the basic requirements:

  • identifying which employees the SUB plan will cover by group or position (not by name);
  • including a start and end date for the SUB plan;
  • covering any period of unemployment because of temporary work stoppage, illness, injury, or quarantine;
  • requiring employees to apply for and receive benefits;
    • if an employee is not receiving benefits, they may still be eligible in certain circumstances.
  • confirming that the combined amount received from the plan and the employee’s weekly EI benefits is not more than 95 percent of the employee’s normal weekly earnings;
  • outlining the method used by the employer to finance the SUB payments, and confirming that payments are financed exclusively by the employer;
  • requiring any changes to be made in writing and submitted to Service Canada within 30 days of the change;
  • explaining that the employees have no vested rights to these payments other than during the applicable period;
  • providing that payments for other guaranteed annual renumerations, deferred renumerations or severance benefits are not affected by these payments;
  • your SUB plan must be approved by the government before it is implemented.

There may be other options and advantages for your SUB plan, too.

For example, employers may be able to require that employees return to work for a specified period after these supplemental employment benefits are paid.

Approval from the Service Canada SUB Program must be received before it is implemented.

More information is available here:

https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/ei-employers-supplemental-unemployment-benefit.html

 

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MAR. 31 - UPDATE ON CERB - WHAT IT IS - WHO QUALIFIES - WHEN TO APPLY - TOP UPS - TAXABLE? - WHAT IF I GET EI? YOUR QUESTIONS ANSWERED

The Canada Emergency Response Benefit (the "CERB") is now available for residents of the City of Kawartha Lakes who qualify for this financial support. 

Here is an update on the CERB, including about how it affects employees' entitlements to Employment Insurance ("EI") benefits. 

WHAT IS CERB?

The CERB provides $2,000 a month for up to four months to individuals who have ceased working due to COVID-19. By contrast, EI benefits are 55% of normal weekly earnings, up to a maximum of $573 per week.

The CERB replaces the previously announced Emergency Care Benefit and the Emergency Support Benefit.

WHEN IS IT AVAILABLE

The online portal to apply for CERB will be available in early April 2020. The Federal Government has committed to making CERB payments within 10 days of application.

The CERB is paid every four weeks and available from March 15, 2020 until October 3, 2020.

WHO IS ELIGIBLE?

The CERB is available to individuals aged 15 or over who:

  • had income of at least $5,000 in 2019 or the 12 months preceding their application for the CERB;

  • cease working for reasons related to COVID-19; and

  • receive no income for at least 14 consecutive days within the four-week period for which the CERB is claimed, regardless of whether they are EI-eligible or not.

 

This includes residents in the City of Kawartha Lakes who are: 

  • unemployed due to termination of employment;

  • sick;

  • quarantined;

  • taking care of someone who is sick with COVID-19;

  • working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures;

  • still employed, but are not receiving income because of disruptions to their work situation due to COVID-19; and

  • contract workers and self-employed individuals who would not otherwise be eligible for EI.

An employee who quits voluntarily is not eligible for the CERB.

DO I APPLY FOR CERB OR EI? 

CERB is available to eligible individuals, whether they qualify for EI or not. 

The Federal Government has indicated that:

  • individuals who are already receiving EI regular and sickness benefits would continue to receive their benefits and should not apply for the CERB;

  • individuals who have already applied for EI and whose application has not yet been processed would not need to re-apply. It is not clear whether this means that the EI applications already in the system will continue to be processed in the normal course or be automatically "converted" into CERB applications; and

  • individuals whose EI benefits cease before October 3, 2020 could apply for the CERB once their EI benefits cease, if they are unable to return to work due to COVID-19.

 

It is not clear whether the CERB will replace EI entirely during the period of March 15, 2020 to October 3, 2020, as the Federal Government's announcement seems to suggest that individuals can continue to apply for EI.

CAN I GET A TOP-UP FROM MY EMPLOYER, TOO

No, at least not for now. 

Individuals are eligible for the CERB if they do not receive income from employment or self-employment during the days on which they have ceased working. It remains to be seen if the Federal Government will introduce regulations that would allow individuals to receive top-up benefits from their employers without eliminating or reducing the CERB, similar to the Supplemental Unemployment Benefit Program for EI.

IS IT TAXABLE

Yes, at least for now, but deductions will not be made at source. 

Therefore, individuals will receive the entire $2,000 every four weeks.

More details for CERB are being rolled out, including how to apply. 

Credit: 

Bonny Mak, Fasken, published Mar. 30, 2020 

 

 

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I'M ORDERED TO CLOSE THE BUSINESS, OR HAVE TO DUE TO LACK OF WORK - DO I LAY OFF THE EMPLOYEES? DO I PLACE THEM ON EMERGENCY LEAVE OF ABSENCE? HOW DO I CHOOSE? HOW DO I DO THE ROE?

FIRST QUESTION - ARE YOU “ESSENTIAL”?  

Review the list of essential workplaces here:

https://www.ontario.ca/page/list-essential-workplaces?_ga=2.260478349.1694204923.1585063245-661911018.1585063245

Make sure you are certain whether your business may continue in operation lawfully, or shut down by the Ontario government’s emergency order.

If you are not an “essential workplace”, per the list, you may have to determine whether your employees will be laid off, or placed on a Declared Emergency Leave (a “DEL”), per the recent changes to Ontario’s Employment Standards Act, 2000 (the “ESA”) (primarily the new job-protected, unpaid leave of absence available to employees who cannot work due or, or arising from, COVID-19.

You can find more information from us about the DELs here: http://wardlegal.ca/31582887996624 and here: http://wardlegal.ca/31582887996626

Remember, teleworking and online commerce are permitted at all times for all businesses.

WHAT IF YOU ARE “ESSENTIAL”, BUT NEED TO TEMPORARILY CLOSE DUE TO THE VIRUS?

You may need to consider temporary suspension of your business operations because of: (1) lack of work; or (2) the perception publicly, or otherwise, that you are not an essential business and are required to close, except for the ability to continue by teleworking or by remote operations.

This is important, because if your business is an “essential workplace”, but you stop operations anyway, it may impact whether you should lay off your employees, or place them on a DEL, legally. 

CAN I USE ‘WORK-SHARING’ TO AVOID LAY OFFS?

The federal work-sharing program is a potentially viable alternative to lay offs, if you qualify.

You can find more information from us on avoiding lay offs by using work-sharing here: http://wardlegal.ca/31582887996646

DO I LAY OFF EMPLOYEES OR PLACE THEM ON A DECLARED EMERGENCY LEAVE UNDER THE ESA?

If your business is not an “essential workplace” and, therefore, is required to cease operations due to the emergency order by the Ontario government, your employees are very likely eligible to be placed on a job-protected, unpaid DEL under the ESA and, as a result, they will also very likely be eligible to obtain employment insurance benefits (“EI”) or, alternatively, the new CERB, from the federal government. However, since a DEL is a statutory leave of absence permitted by the ESA, if your employees have extended health benefits, they should be continued during the DEL.

You can find more information from us about EI benefits and the CERB here: http://wardlegal.ca/31585663827847

However, if your business is not required to close by order, but you will be stopping your operations for other legitimate reasons, such as lack of work and demand, etc., this may still be temporary lay-off under the ESA and, therefore, your staff are eligible to apply for benefits under the EI Act.

EI benefits may offer your employees a greater financial benefit than the CERB, or vice versa.

Also, if you lay off employees, you have a statutory duty to call them back in thirteen weeks, unless the pandemic continues at that time and subject to any emergency orders in effect at that time.

Therefore, whether to lay off or place employees on DEL depends on:

[1] whether you are an “essential workplace”;

[2] whether you are closing by order, or voluntarily and, if the latter, whether you have legitimate business reasons to do so; and

[3] which route would increase the financial benefit to your employees during this pandemic; and

[4] if you have choice, whether you are comfortable, from a business perspective, with the potential obligation to call back your employees within a specified period of time, per the ESA, subject to the uncertain, future events for this pandemic. 

HOW DO I COMPLETE RECORDS OF EMPLOYMENT (ROEs)?

Here is how:

A – For layoff (i.e., lack of work)

D – For illness or injury (i.e., illness or quarantine due to COVID-19)

N – For leave (i.e., DEL in Ontario)

You can find more information about ROEs here: https://www.canada.ca/en/employment-social-development/corporate/notices/coronavirus.html

Service Canada has indicated that:

If your employees are directly affected by the coronavirus (COVID-19) and they are no longer working, you must issue a Record of Employment (ROE). When the employee is sick or quarantined, use code D (Illness or injury) as the reason for separation (block 16). Do not add comments. When the employee is no longer working due to a shortage of work because the business has closed or decreased operations due to coronavirus (COVID-19), use code A (Shortage of work). Do not add comments. When the employee refuses to come to work but is not sick or quarantined, use code E (Quit) or code N (Leave of absence), as appropriate. Avoid adding comments unless absolutely necessary.”

You should not use code E (i.e., the employee quit) without seeking legal advice before doing so, even if the employee refuses to go to or attend work, rightly or wrongly.

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MAR. 31 - UPDATE ON THE NEW FEDERAL WAGE SUBSIDY - 75% FOR EACH EMPLOYEE - IT'S A CREDIT, NOT A DIRECT PAYMENT - WHAT YOU NEED TO KNOW

As of March 30, 2020, businesses and organizations in the City of Kawartha Lakes who suffer a loss of not less than thirty per cent of revenue related to, or arising from, COVID-19, are now eligible for a wage subsidy of up to seventy-five per cent of each employee’s wages.

This program is called the “Canada Emergency Wage Subsidy” (the “Program”).

According to the federal Government’s announcements for the Program:

[1] it will provide a subsidy of up to seventy-five per cent of an employee’s wages (up from ten per cent, previously announced);

[2] it will apply to and extend to charities, non-profit organizations and both “large and small” businesses (before this, the only business corporations eligible were Canadian-controlled, private corporations that qualify for the small business deduction);

[3] it will benefit employers that have experienced a revenue decrease of at least thirty per cent due to, or arising from, COVID-19;

[4] apply to the first $58,700 earned per employee, being equivalent to up to $847 per week per employee (there is no longer any cap at the lesser of $1,375 per employee and $25,000 per employer); and

[5] be retroactive to March 15, 2020.

It is anticipated that the wage subsidiary will be available to businesses and organization by allowing an eligible employer to reduce the amount the employer would otherwise have to remit to the Canada Revenue Agency for payroll withholdings. In other words, it is an indirect wage subsidy, rather than a direct payment from the federal Government, at least for now. 

Legislation will also have to be enacted by the federal Government to solidify the Program, which hopefully will be tabled and passed promptly. It will need to be retroactive, too.    

The Program, as it currently stands, does not mean that employers pay employees only the seventy-five per cent the covered by the Program.

Rather, employers may only claim a credit for seventy-five per cent of what they actually pay their employees.

Claiming a tax credit under false pretences is an offence under the federal Income Tax Act.

The Program may continue to change and evolve as the pandemic continues.  

 

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YOUR NEW CHEAT SHEET FOR EI BENEFITS DURING COVID-19. LAID OFF? TAKING CARE OF KIDS? CAREGIVER? THE NEW DEAL [AS OF MAR. 25, 2020]

The federal Government continues to develop and change employment insurance benefits during this pandemic. 

Here is a list of the employment insurance (EI) benefits available to you for emergency financial support, as of March 25, 2020:

EXISTING - REGULAR EMPLOYMENT INSURANCE:

EI regular benefits provides benefits to individuals who lose their jobs through no fault of their own (i.e., due to shortage of work, seasonal or mass lay-offs), including attributable to COVID-19.

To be eligible:

 the employee must have worked 600 insurable hours in the last 52 weeks; and

 the employee must have lost his or her employ through no fault of his or her own

If you have been laid off from your work as a result of your employer`s response to COVID-19 you are eligible for Regular Employment Insurance.

You can apply at this link:

https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit.html

EXISTING – EI SICKNESS BENEFIT:

Employment Insurance (EI) sickness benefits provide up to 15 weeks of income replacement and is available to eligible claimants who are unable to work because of illness, injury or self-quarantine, to allow them time to restore their health and return to work.

Canadians who are self-quarantined (as instructed by either a public health official or an occupational health official through their workplaces) can apply for EI sickness benefits.

You can apply here:

https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit.html

To be eligible:

 the employee must be unable to work for medical reasons;  

 the employee accumulated 600 insured hours of work in the 52 weeks before the start of your claim; and  

 the employee has been instructed by either a public health official or occupational health official through the workplace to self-quarantine (i.e. post-out-of-Ontario travel, after testing positive for COVID-19, or while awaiting test results).

More information on the EI sickness benefit here:

https://www.canada.ca/en/services/benefits/ei/ei-sickness.html

EXISTING – FAMILY CAREGIVER BENEFIT:

The Family Caregiver Benefit for Children allows eligible caregivers to receive up to 35 weeks of financial assistance to provide care or support to a critically ill or injured child.  

To be eligible:

o the patient/child’s life must be at risk of illness or injury;  

o the patient/child must be experiencing a significant change in their baseline state of health;  

o the patient/child must require the care and support of one of more family members; and  

o a primary physician must declare how long the patient/child would require the caregiving support of the parent/family member.  

With respect to COVID-19, caregivers are not likely to be eligible for this EI benefit unless their child tests positive for COVID-19 and is actively receiving treatment.

NEW – CANADA EMERGENCY RESPONSE BENEFIT (“CERB”):

The Canada Emergency Response Benefit (CERB) offers income support for up to SIXTEEN weeks to those who lose pay because of the COVID-19 pandemic.

The federal Government reports that CERB will be a "simpler and more accessible" program, now covering employees who lost their jobs, got sick, are under quarantine or have to stay home because of school closures.

The CERB collapses and replaces entirely the two, previously announced benefits; specifically, the Emergency Care Benefit and the Emergency Support Benefit.

CERB is available to wage earners, contract workers and self-employed people, who do not otherwise qualify for EI benefits, as explained above.

Specifically, the CERB will provide a taxable benefit of $2,000 monthly ($500 weekly), for up to four months to:

  • those who must stop working due to COVID19 and do not have access to paid leave or other income support;
  • workers who are sick, quarantined, or taking care of someone who is sick with COVID-19;
  • working parents who must stay home, without pay, to care for children that are sick or need additional care because of school and daycare closures;
  • workers who still have their employment, but are not being paid because there is currently insufficient work and their employer has asked them not to come to work; and
  • those who are self-employed, in the gig economy or operate as freelancers, including contract workers, who would not otherwise qualify for EI benefits, as explained above.

The online portal to apply for CERB will be available in early April, and most Canadians can expect payments within ten days. 

CERB payments will be issued every four weeks, and will be available from March 15, 2020 to Oct. 3, 2020.

WHAT ABOUT THOSE ALREADY RECEIVING EI?

Canadians already receiving EI regular benefits and/or sickness benefits will, as of March 25, 2020, continue to receive those benefits and should not apply to the CERB.

Canadians who already have applied for EI, but whose application has not yet been processed, do not need to reapply.

Canadians who are eligible for EI regular and/or sickness benefits may still access those benefits if he or she remains unemployed after the sixteen-week period covered by the CERB.

More information about the CERB is available here:

https://www.canada.ca/en/department-finance/economic-response-plan/covid19-individuals.html#new_canada_emergency_response_benefit

CLAWBACKS AND DEDUCTIONS AGAINST EI BENEFITS (FOR WORKING):

If an employee works while receiving EI (sickness or regular) benefits, the employee is able to keep only one-half (i.e., $0.50) of the EI benefits for every dollar earned earn, up to 90% of the weekly insurable earnings used to calculate the employee’s EI benefit amount (i.e., the earnings threshold). If the employee earns any income above the earnings threshold, the Commission will deduct those amounts dollar-for-dollar from the benefits received by the employee. Whether an employee’s income during an EI benefit period will be deducted depends on whether the income falls within the meaning of “earnings” in the EI program.

Certain kinds of income will not impact EI benefits, including:

[a] disability benefits;

[b] survivor or dependent benefits;

[c] worker's compensation benefits paid under specific regulations;

[d] additional insurance benefits paid under an approved private plan (for example, payments for pain and suffering or medical expenses that received from an insurance company after an employee has been injured in a car accident);

[e] additional sickness benefits paid by an employer from a registered supplemental unemployment benefit plan (as long as the income, benefits, and additional amounts combined do not exceed 95% of the weekly earnings);  

[f] sickness or disability payments received under a private wage loss replacement plan; and

[g] retroactive salary increases.

Here is a chart explaining what constitutes earnings for EI:

https://www.canada.ca/en/services/benefits/ei/earnings-chart.html

EMPLOYER-PAID “TOP UP” TO EI BENEFITS [SIMILAR TO PARENTAL OR MATERNAL LEAVE]:

If an employer tops-up an employees earnings, beyond the EI (sick or regular) benefits, it will be considered “earnings” and will be deducted or clawed-back from the employee’s benefits, unless the top-up was given under a formalized “top up” plan, otherwise known as a “Supplemental Unemployment Benefit”. Therefore, employees who received an informal, non-registered top-up, at least currently, are likely to be subject to claw-back against their EI benefits.

SUB PLANS – SUPPLEMENTAL UNEMPLOYMENT BENEFIT PLAN (“SUB”) – NO CLAWBACK:  

Any employer can utilize a SUB to increase employees’ weekly earning during a period of unemployment, when they are unemployed as a result of a temporary stoppage or shortage of work, training, illness, injury or quarantine. Payments from SUBs must be registered with Service Canada – they are not considered to be earnings and are not deducted from EI (sick and regular) benefits.  

SUBs must be registered by Service Canada, as of the date on which the application for the SUB is filed by the employer. SUBs must be registered before the effective date of the SUB. If a SUB plan is not registered, at least currently, any top-up payments by the employer to EI (sick or regular) benefits will be deemed as “earnings”, and be subject to deduction or claw-back, as explained above.

More information about SUBs is available here:

https://www.canada.ca/en/privy-council/corporate/transparency/reporting-spending/departmental-results-reports/2016-2017/supporting-information-sub-programs.html

A sample SUB is available here:

https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/supplemental-unemployment-benefit/sample.html

PROVINCIAL (ESA) LEAVES OF ABSENCE AND EI BENEFITS – TIED TOGETHER:

Note that the new, statutory leaves of absence authorized by Ontario in response to COVID-19 are tied to, and rely on, the federal EI program to compensate employees while they are away from work. However, this is subject to change depending on what funding is allocated to the program in response to the COVID-19 pandemic.

More information about Ontario’s COVID-19-related authorized leaves of absence can be found here:

http://wardlegal.ca/31582887996624

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I'M IN AN "ESSENTIAL WORKPLACE" - DO I HAVE TO GO TO WORK? I'M WORRIED. NOT IF YOU QUALIFY FOR EMERGENCY LEAVE

The Ontario Government has ordered the mandatory closure of all non-essential workplaces, effective March 24, 2020 at 11:59 p.m. This order will be in effect for fourteen days with the possibility of being extended as the circumstances evolve.

Here is a list of “essential workplaces” in Ontario, as declared:

ttps://s3.amazonaws.com/files.news.ontario.ca/opo/en/2020/03/list-of-essential-workplaces-2.html

For the purposes of this order, businesses include any for-profit, non-profit or other entity providing the goods and services described by the list. This does not preclude the provision of work and services by entities not on the list either online, by telephone or by mail/delivery. Furthermore, teleworking and online commerce are permitted at all times for all businesses. Businesses can operate virtually and remotely, in other words.

If there is any issue whether an organization constitutes an “essential workplace”, the Government also announced that it will be setting up a 1-800 number and Web site for inquiries.

If your employer is an “essential workplace”, you may be legally permitted not to attend work due to COVID-19.

Your position will be job-protected, but your employer will not be required to pay your regular pay during your leave of absence. However, the federal Government has established new employment insurance (“EI”) benefits to correspond with these measures by Ontario. They are intended to work together. 

Employer’s Duty to Provide a Safe Work Environment:

Firstly, for background on the issue, employers have an obligation to ensure the safety of their workers under occupational health and safety legislation. That obligation includes taking every reasonable precaution in the circumstances for the protection of their workers, even in the situation of a pandemic. They are expected to put the necessary measures in place to protect workers from infectious diseases, and inform, instruct and supervise workers in order to protect their health and safety.

Since March 13, 2020, the Public Health Agency of Canada and various other public health authorities have recommended that Canadians self-isolate for a period of fourteen days if:

  • they have travelled anywhere outside of Canada (including the United States of America).
  • they live with, provided care for, or spent extensive time with someone who:
    • has tested positive for COVID-19; or
    • is suspected of having COVID-19; or
    • has respiratory symptoms (fever, cough, or shortness of breath) that started within fourteen days of travel outside of Canada.

If you meet any of these requirements, you should immediately self-isolate at home only.

New Infectious Disease Emergency Leave (i.e., COVID-19):

We now have "declared emergency" and "infectious disease emergencies" leaves of absence from the workplace, per the new legislation the Ontario government passed very recently, retroactive to January 25, 2020; namely, Bill 186 – the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, to amend the job-protected leaves of absence under the Employment Standards Act, 2000 (ESA) (“Bill 186).

Under this new legislation, employees of “essential workplaces” are entitled to take an unpaid leave of absence if they are unable to work for any of the following reasons:

- the employee is under individual medical investigation, supervision, or treatment, in connection with COVID-19;

- the employee is acting in accordance with an order by a medical officer of health or by the Ontario Court of Justice under the Health Protection and Promotion Act;

- the employee is in isolation, quarantine, or subject to some other control measure (including self-isolation) where the employee is acting in accordance with public health information or directions issued by a public health official, a qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council, or board of health;

- the employee is acting in accordance with a direction of the employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease;

the employee needs to provide care or support to a specified individual (as set out below), for example because of a school or daycare closure;

- the employee cannot return to Ontario as a result of travel restrictions related to the designated infectious disease; and/or

- any other reasons(s) that the Government may further declare.

Incidentally, COVID-19 has been designated as a designated infectious disease.

For both declared emergencies and designated infectious disease emergencies, the leave is available if the employee cannot perform their job duties as a result of having to provide care or support for a specified individual. Bill 186 significantly expands the list of specified individuals to increase the availability of the leave. The specified individuals for the purposes of these leaves are:

- the employee’s spouse;

- a parent, step-parent or foster parent of the employee or the employee’s spouse;

- a child, step-child or foster child of the employee or the employee’s spouse;

- a child who is under legal guardianship of the employee or the employee’s spouse;

- a brother, step-brother, sister or step-sister of the employee;

- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse;

- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee;

- a son-in-law or daughter-in-law of the employee or the employee’s spouse;

- an uncle or aunt of the employee or the employee’s spouse;

- a nephew or niece of the employee or the employee’s spouse;

- the spouse of the employee’s grandchild, uncle, aunt, nephew or niece;

- a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met; and

- any individual prescribed as a family member by the Government for the purposes of the above.

Employees wishing to take this Infectious Disease Emergency Leave will not be required to provide a medical note to employers. However, employers can require that employees provide evidence that is reasonable in the circumstances (at a time that is reasonable in the circumstances) to substantiate their absence. The official for Bill 186 suggests that employers can request things such as a note from a daycare or evidence of a cancelled flight. Employers are permitted to request supporting evidence of entitlement from an employee who takes the leave; however, this right is somewhat qualified. The evidence requested must be “reasonable in the circumstances” and must be provided at a time that is also “reasonable in the circumstances.” Importantly, the employer is not permitted to request a medical certificate as evidence of entitlement to the leave.

The job protection under Bill 186 is retroactive to January 25, 2020, which is the date that the first presumptive COVID-19 case was confirmed in Ontario. The Ontario Government indicates that these measures will remain in place “until COVID-19 is defeated”.

Declared Emergency Leave:

In addition to the Infectious Disease Emergency Leave, the Declared Emergency Leave remains available to all employees, if an employee cannot perform his or her job duties as a result of a declared emergency under Ontario’s Emergency Management and Civil Protection Act (EMCPA) and:

- because of an order that applies to the employee under the EMCPA;

- because of an order that applies to the employee under the Health Protection and Promotion Act;

- because the employee is needed to provide care or assistance for a specified individual (as set out above); or

- any other reason that may be prescribed by the Government.

The Declared Emergency Leave is also unpaid and will be available for the duration of the declared emergency.

General:

The usual ESA protections for statutory leaves of absence apply equally to these new emergency leaves, including anti-reprisal provisions, the right to continue to participate in certain benefits unless the employee opts not to continue to pay their share of the premiums (if any), and the right to reinstatement.

COVID-19 continues to have a significant impact on Canadian workplaces resulting in employers having to layoff staff due to work shortages and temporary closures. Employers should proceed with caution and obtain legal advice before seeking to temporarily layoff an employee who may be eligible for an ESA leave. The amendments also provide flexibility to employees in terms of providing supporting evidence of the entitlement to the leave. It is conceivable that in certain circumstances, it would be reasonable for an employee to provide evidence after the leave is taken.

Should My Employer Pay Me During my Emergency Leave?

The question of whether an employer should remunerate an employee during the fourteen-day shutdown period can be complex. There is no one-size-fits-all approach.

Employees who are not employed by essential workplaces, or who qualify for the new emergency leaves, may also apply for the corresponding EI benefits now available from the federal Government.

What if an employee has symptoms but does not meet the requirements to self-isolate?

If an employee has the symptoms of COVID-19 (coughing, and/or difficulty breathing), they should not be attending work. If they are febrile, they may have contracted an infectious virus and should not be in the workplace. They should go home and come back to work when the fourteen-day period has elapsed or when a medical professional authorizes them to return to work.

What if an employee does not want to self-isolate?

If an employer has a reasonable basis to believe that an employee should be self-isolating (i.e., meeting one of the public health-identified criteria for self-isolation) management should make careful notes of the basis for that belief and send the employee home. They should direct him or her not to come to work for the duration of the self-isolation fourteen-day period. Employers have a duty to ensure the safety of the workplace and must weigh the balance between employee wishes and workplace safety.

What if an employee wants to social distance and work-from-home?

Given the advice from public health authorities, many employers are utilizing remote work as a means to promote social distancing. Prime Minister Justin Trudeau has advised all Canadians to work from home where possible. From both a public health and occupational safety perspective, working from home is a sound policy to implement , provided it is feasible for your workplace.

Public health authorities recognize, however, that there are a number of workplaces where remote work is not possible. Even in circumstances where an employee is not required to self-isolate or cannot work remotely, all employees should exercise precaution and self-monitor for symptoms of COVID-19. Employers should inform their employees of their duty to abstain from work and to report any symptoms or risk of COVID-19 to their employer during this crisis.

Does an employer have to pay an employee during quarantine?

There is no one-size-fits-all approach to the issue of whether an employer must pay an employee that is self-isolating, and will depend on the particular circumstances. No matter what, employers should be clear with the employee, in writing via email, about whether they will/will not be paid during the quarantine period. The employer's message should be sympathetic, and should confirm in writing exactly what is changing for that employee, and that the steps taken are a temporary necessity.

In addition, the Federal government has initiated new, corresponding measures to support workers affected by COVID-19 and placed in quarantine:

  • the one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined;
  • a new dedicated toll-free phone number is established to support enquiries related to waiving the EI sickness benefits waiting period;
  • employees claiming EI sickness benefits due to quarantine are not required to provide a supporting medical certificate; and
  • employees who cannot complete their claim for EI sickness benefits due to quarantine are permitted to apply later and have their EI claim backdated to cover the period of delay. 
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COVID-19: HUMAN RIGHTS PROTECTIONS FOR EMPLOYEES. NO DIFFERENT TREATMENT. ABILITY TO REFUSE WORK.

Employees in Ontario are protected by Ontario's Human Rights Code (the "Code") in terms of the COVID-19 pandemic. Currently, those protections include: 

- it is discriminatory to treat employees who have, or are perceived to have, contracted COVID-19, in a negative manner, for reasons unrelated to public health and safety;

- employers have a duty to accommodate employees in relation to COVID-19, unless it would amount to undue hardship based on cost, or health and safety; 

- employers should not treat employees in a differential manner over COVID-concerns, unless these concerns are reasonable and consistent with the most recent advice of medical and public health officials;   

- unless an employee can provide a legitimate reason why he or she cannot work, employers have a right to expect they will continue to perform their work. If an employee is required to self-isolate for legitimate reasons, the employer can explore alternative options to allow the employee to continue to work; 

- employers may not discipline or terminate individual employees who are unable to come to work because medical or health officials have quarantined, or advised them to self-isolate and stay home because of COVID-19 concerns; 

- employers should accommodate employees who have care-giving responsibilities to the point of undue hardship, which may include working from home, reduced hours or leave without pay; 

- employers should take requests for accommodation in good faith and avoid requiring medical notes to justify employee absences where such notes are unnecessary; and 

- it is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

Employers should also remind employees that it is unacceptable to treat other employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry.

Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination.

If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees.

Differential treatment related to this virus is not permissible.

Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.
 

Credit: 

Anne Lemay and Nathan Hoo, Gowlings WLG, published March 19, 2020, via Lexology.com 

 

 

 

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I'M WORRIED. I HAVE TO TAKE CARE OF MY KIDS. DO I HAVE TO GO TO WORK? WHAT ARE MY OPTIONS?

You have options and may be legally permitted not to attend work. Your position will be job-protected, but your employer will not be required to pay your regular pay during your leave of absence.

We now have "declared emergency" and "infectious disease emergencies" leaves of absence from the workplace, per the new legislation the Ontario government passed very recently, retroactive to January 25, 2020:

[Bill 186 – the Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, to amend the job-protected leaves of absence under the Employment Standards Act, 2000 (ESA)]:

Declared Emergencies:

The amended declared emergency leave remains available if an employee cannot perform his or her job duties as a result of a declared emergency under the Emergency Management and Civil Protection Act (EMCPA) and:

- because of an order that applies to the employee under the EMCPA;

- because of an order that applies to the employee under the Health Protection and Promotion Act;

- because the employee is needed to provide care or assistance for a specified individual (as set out below); or

- any other reason that may be prescribed by regulation.

The declared emergency leave is unpaid and will be available for the duration of the declared emergency.

Infectious Disease Emergencies:

The new infectious disease emergencies leave is available only for “designated infectious diseases, ” which means that the particular disease must be designated in a regulation under the ESA. Once a disease is designated, the unpaid, job-protected leave is available if an employee will not be performing their job duties as a result of one or more of the following reasons related to the designated infectious disease:

- the employee is under individual medical investigation, supervision, or treatment;

- the employee is acting in accordance with an order by a medical officer of health or by the Ontario Court of Justice under the Health Protection and Promotion Act;

- the employee is in isolation, quarantine, or subject to some other control measure (including self-isolation) where the employee is acting in accordance with public health information or directions issued by a public health official, a qualified health practitioner, Telehealth Ontario, the government of Ontario or Canada, a municipal council, or board of health;

- the employee is acting in accordance with a direction of the employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease;

- the employee needs to provide care or support to a specified individual (as set out below), for example because of a school or daycare closure;

- the employee cannot return to Ontario as a result of travel restrictions related to the designated infectious disease; or
any other reasons that may be prescribed by regulation.
COVID-19 has been designated as a designated infectious disease.

General:

For both declared emergencies and designated infectious disease emergencies, the leave is available if the employee cannot perform their job duties as a result of having to provide care or support for a specified individual. Bill 186 significantly expands the list of specified individuals to increase the availability of the leave. The specified individuals for the purposes of these leaves are:

- the employee’s spouse.

- a parent, step-parent or foster parent of the employee or the employee’s spouse.

- a child, step-child or foster child of the employee or the employee’s spouse.

- a child who is under legal guardianship of the employee or the employee’s spouse.

- a brother, step-brother, sister or step-sister of the employee.

- a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.

- a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.

- a son-in-law or daughter-in-law of the employee or the employee’s spouse.

- an uncle or aunt of the employee or the employee’s spouse.

- a nephew or niece of the employee or the employee’s spouse.
The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.

A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.

Any individual prescribed as a family member for the purposes of this section.

Employers are permitted to request supporting evidence of entitlement from an employee who takes the leave; however, this right is somewhat qualified. The evidence requested must be “reasonable in the circumstances” and must be provided at a time that is also “reasonable in the circumstances.” For a designated infectious disease emergency leave, the employer is not permitted to request a medical certificate as evidence of entitlement to the leave.

On March 17, 2020, Ontario passed an Order-in-Council declaring the COVID-19 outbreak to be an “emergency” under the Emergency Management and Civil Protection Act (EMCPA). This declaration enables the government to access a broad number of general powers set out under the EMCPA to respond to the emergency. The government used these powers to issue two orders to assist in reducing the spread of COVID-19. The first order requires the following establishments to remain closed until March 31, 2020:

- all facilities providing indoor recreational programs;
- all public libraries;
- all private schools under the Education Act;
- all licensed child care centres;
- all bars and restaurants (except takeout food and delivery);
- all theatres and movie cinemas; and
- all concert venues.

The second order prohibits all “organized public events of over fifty people.” This order includes parades, events, and communal services within places of worship, and will also extend to March 31st, 2020, unless terminated earlier.

The usual ESA protections for statutory leaves of absence apply equally to these new emergency leaves, including anti-reprisal provisions, the right to continue to participate in certain benefits unless the employee opts not to continue to pay their share of the premiums (if any), and the right to reinstatement.

COVID-19 continues to have a significant impact on Canadian workplaces resulting in employers having to layoff staff due to work shortages and temporary closures. Employers should proceed with caution and obtain legal advice before seeking to temporarily layoff an employee who may be eligible for an ESA leave. The amendments also provide flexibility to employees in terms of providing supporting evidence of the entitlement to the leave. It is conceivable that in certain circumstances, it would be reasonable for an employee to provide evidence after the leave is taken.

The rapid introduction and passing of Bill 186 to provide job-protected, unpaid leave entitlements to employees is part of the Ontario government’s response to manage the ongoing impact of the COVID-19 pandemic.

Credit: Emond Harnden - ehlaw.ca, published Mar. 20, 2020

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YOUR COMPLETE GUIDE TO EI BENEFITS AVAILABLE TO YOU DURING THIS CRISIS

If you have been laid off, cannot attend work due to the virus, or must stay home to care for children due to the school closures, here is a complete guide to the federal government’s Employment Insurance benefits available to you during this crisis and emergency, including answering your questions about being self-employed and “top-ups” from your employer, if any.

EMERGENCY BENEFITS AVAILABLE FROM THE FEDERAL GOVERNMENT:

Employees and parents are entitled to apply for new financial assistance through EI due to the COVID-19 crisis; specifically:

[1] a short-term Emergency Care Benefit, offering up to $900.00 bi-weekly, for up to 15 weeks, administered through the Canada Revenue Agency (“CRA”), available to:

[a] employees (including self-employed, gig economy and freelance workers), quarantined or sick with COVID-19, but do not qualify for regular EI sickness;  

[b] employees (including self-employed, gig economy and freelance workers), taking care of a family member who is sick with COVID-19, including an elderly parent, but who do not quality for EI sickness benefits; or

[c] parents who care or supervise their child(ren) because of the school closures and, as a result, cannot attend work and earn any income, regardless whether that parent may otherwise qualify for EI benefits.   

Applications for this benefit cannot be made until April, 2020. Each applicant will have to verify he or she is eligible for the benefit, including ongoing verification while the benefit is being received. A doctor’s note will not be required.    

 [2] a longer-term Emergency Support Benefit (i.e., income support program) for employees, administered through the CRA, offering up to $5 billion in support to workers who are ineligible for EI and are, or will be, unemployed, together with a proposed, one-time special funding payment by May of 2020 to low and modest-income families, administered through the Goods and Services Tax Credit – it is estimated that the average increase to income for those benefitting from this funding measure will be approximately $400.00 for single individuals and close to $600.00 for couples;

[3] an increase to the maximum annual Canada Child Benefit payment amounts for the 2019-20 benefit year by $300.00 per child;  

[4] emergency funding for targeted groups, who may be more vulnerable to the effects of COVID-19, including First Nations, Inuit and Metis Nation communities, and people repaying their student loans; and

[5] EI sickness benefits, providing up to 15 weeks of income replacement to eligible workers unable to work due to illness, injury or quarantine, intended to give workers adequate time to return to good health and to work, including those quarantined due to COVID-19, who are eligible for this benefit, too. Note: [a] the usual one-week wait period for EI sickness benefits will be waived for new claimed quarantined, so they are paid for the initial week of their claim; [b] priority EI application processing will reportedly be utilized for those claiming EI sickness benefits due to quarantine, who do not need to provide a doctor’s note or medical certificate in order to apply and receive this benefit; [c] it remains uncertain if a qualified worker will be required to provide ongoing updates and reporting, such as every two weeks, verifying continuous qualification for the benefit; and [d] workers who are unable to complete their claims for EI sickness benefits because of quarantine may apply in future and their claims will reportedly be backdated to over the quarantine-related delay;

QUALIFYING FOR EI SICKNESS BENEFITS (ELIGIBILITY):

To qualify for EI sickness benefits, you must:

[1] be employed in insurable employ;

[2] have had your normal weekly earnings have been reduced by more than 40%;

[3] have accumulated at least 600 hours of insurable employment during the qualifying period; and

[4] be self-employed, registered for EI and submitting premiums for at least one year.

If you are ineligible for EI sickness benefits, you may qualify for regular EI benefits.

More information is available about qualifying for regular EI benefits here:

https://www.canada.ca/en/services/benefits/ei.html.

SELF-EMPLOYED:

If you are self-employed, you can access EI special benefits by entering into an agreement, or registering, with the Canada Employment Insurance Commission. There are six types of EI special benefits currently:

  • Maternity benefits are for people who are away from work because they’re pregnant or have recently given birth (up to 15 weeks).
  • Parental benefits are for parents who are away from work to care for their newborn or newly adopted child. When applying for parental benefits, you need to choose between 2 options: standard or extended.
    • Up to 40 weeks of standard parental benefits can be paid to parents sharing benefits, but one parent cannot receive more than 35 weeks. If parents share benefits, they must choose the same option.
    • Up to 69 weeks of extended parental benefits can be paid to parents sharing benefits, but one parent cannot receive more than 61 weeks. If parents share benefits, they must choose the same option.
  • Sickness benefits are for people who cannot work due to injury, illness, or the need to be isolated in quarantine because they may be carrying a disease (up to 15 weeks).
  • Compassionate care benefits are for caregivers who must be away from work temporarily to provide care or support to a person who is seriously ill with a significant risk of death (up to 26 weeks). The 26 weeks of benefits can be shared between different caregivers who applied and are eligible to receive them.
  • The family caregiver benefit for children is for caregivers who must be away from work to provide care or support to a critically ill or injured child under 18. Either one or more caregivers can share up to 35 weeks of benefits between them.
  • The family caregiver benefit for adults is for caregivers who must be away from work to provide care or support to a critically ill or injured adult. Either one or more caregivers can share up to 15 weeks of benefits between them.

More information for self-employed individuals and EI benefits is here:

https://www.canada.ca/en/services/benefits/ei/ei-self-employed-workers.html

CLAWBACKS AND DEDUCTIONS AGAINST EI BENEFITS (FOR WORKING):

If an employee works while receiving EI (sickness or regular) benefits, the employee is able to keep only one-half (i.e., $0.50) of the EI benefits for every dollar earned earn, up to 90% of the weekly insurable earnings used to calculate the employee’s EI benefit amount (i.e., the earnings threshold). If the employee earns any income above the earnings threshold, the Commission will deduct those amounts dollar-for-dollar from the benefits received by the employee. Whether an employee’s income during an EI benefit period will be deducted depends on whether the income falls within the meaning of “earnings” in the EI program.

Certain kinds of income will not impact EI benefits, including:

[a] disability benefits;

[b] survivor or dependent benefits;

[c] worker's compensation benefits paid under specific regulations;

[d] additional insurance benefits paid under an approved private plan (for example, payments for pain and suffering or medical expenses that received from an insurance company after an employee has been injured in a car accident);

[e] additional sickness benefits paid by an employer from a registered supplemental unemployment benefit plan (as long as the income, benefits, and additional amounts combined do not exceed 95% of the weekly earnings);  

[f] sickness or disability payments received under a private wage loss replacement plan; and

[g] retroactive salary increases.

Here is a chart explaining what constitutes earnings for EI:

https://www.canada.ca/en/services/benefits/ei/earnings-chart.html

EMPLOYER-PAID “TOP UP” TO EI BENEFITS [SIMILAR TO PARENTAL OR MATERNAL LEAVE]:

If an employer tops-up an employees earnings, beyond the EI (sick or regular) benefits, it will be considered “earnings” and will be deducted or clawed-back from the employee’s benefits, unless the top-up was given under a formalized “top up” plan, otherwise known as a “Supplemental Unemployment Benefit”. Therefore, employees who received an informal, non-registered top-up, at least currently, are likely to be subject to claw-back against their EI benefits.

SUB PLANS – SUPPLEMENTAL UNEMPLOYMENT BENEFIT PLAN (“SUB”)NO CLAWBACK:  

Any employer can utilize a SUB to increase employees’ weekly earning during a period of unemployment, when they are unemployed as a result of a temporary stoppage or shortage of work, training, illness, injury or quarantine. Payments from SUBs must be registered with Service Canada – they are not considered to be earnings and are not deducted from EI (sick and regular) benefits.  

SUBs must be registered by Service Canada, as of the date on which the application for the SUB is filed by the employer. SUBs must be registered before the effective date of the SUB. If a SUB plan is not registered, at least currently, any top-up payments by the employer to EI (sick or regular) benefits will be deemed as “earnings”, and be subject to deduction or claw-back, as explained above.

More information about SUBs is available here:

https://www.canada.ca/en/privy-council/corporate/transparency/reporting-spending/departmental-results-reports/2016-2017/supporting-information-sub-programs.html

A sample SUB is available here:

https://www.canada.ca/en/employment-social-development/programs/ei/ei-list/reports/supplemental-unemployment-benefit/sample.html

PROVINCIAL (ESA) LEAVES OF ABSENCE AND EI BENEFITS – TIED TOGETHER:

Note that the new, statutory leaves of absence authorized by Ontario in response to COVID-19 are tied to, and rely on, the federal EI program to compensate employees while they are away from work. However, this is subject to change depending on what funding is allocated to the program in response to the COVID-19 pandemic.

More information about Ontario’s COVID-19-related authorized leaves of absence can be found here:

https://www.facebook.com/jwpeppaTest/posts/3595895590481430?__tn__=K-R

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COVID-19 - CAN MY EMPLOYER FORCE ME TO STAY OR WORK FROM HOME? IF SO, DOES MY EMPLOYER STILL HAVE TO PAY ME?

Pending a provincial lock-down, except for essential services, which is imminently expected in Ontario, many employees are concerned about the ability of their employer to disallow them attending work.

The other issue is entitlement to pay for employees who are requested not to attend work, or who elect to take a new, statutory leave of absence related to COVID-19 and its implications. 

Below is a very good explanation of these issue, as it currently stands in Ontario, and subject to further directives from both the provincial and federal government.  

All of this is subject to change at any time as the provincial and federal response to this pandemic modulates and develops:  

As a result of the recent COVID-19 pandemic Canadian health authorities over the past week have requested that individuals exercise social distancing, and in certain circumstances self-isolation, to stymie the spread of the virus. Many employers are in the difficult position of determining how they can implement these public health measures in their workplace.

Duty to Provide a Safe Work Environment

Employers have an obligation to ensure the safety of their workers under occupational health and safety legislation. That obligation includes taking every reasonable precaution in the circumstances for the protection of their workers, even in the situation of a pandemic. They are expected to put the necessary measures in place to protect workers from infectious diseases, and inform, instruct and supervise workers in order to protect their health and safety.

Since March 13, 2020, the Public Health Agency of Canada and various other public health authorities have recommended that Canadians self-isolate for a 14-day period if:

  • they have travelled anywhere outside of Canada (including the United States of America).
  • they live with, provided care for, or spent extensive time with someone who:
    • has tested positive for COVID-19; or
    • is suspected of having COVID-19; or
    • has respiratory symptoms (fever, cough, or shortness of breath) that started within 14 days of travel outside of Canada.

Should an employee meet any of the above requirements, they should self-isolate at home.

The question of whether an employer should remunerate an employee during the 14-day period can be complex. There is no one-size-fits-all approach, and it is recommended that employers speak with a member of Gowling WLG's Employment, Labour & Equalities Group to develop an appropriate approach for your workplace.

What if an employee has symptoms but does not meet the requirements to self-isolate?

If an employee has the symptoms of COVID-19 (coughing, and/or difficulty breathing) they should not be attending work. If they are febrile, they may have contracted an infectious virus and should not be in the workplace. They should go home and come back to work when the 14-day period has elapsed or when a medical professional authorizes them to return to work.

What if an employee does not want to self-isolate?

If an employer has a reasonable basis to believe that an employee should be self-isolating (i.e. meeting one of the public health-identified criteria for self-isolation) management should make careful notes of the basis for that belief and send the employee home. They should direct him or her not to come to work for the duration of the self-isolation 14-day period. Employers have a duty to ensure the safety of the workplace and must weigh the balance between employee wishes and workplace safety.

What if an employee wants to social distance and work-from-home?

Given the advice from public health authorities, many employers are utilizing remote work as a means to promote social distancing. On March 16, 2020, Prime Minister Justin Trudeau advised all Canadians to work from home where possible. From both a public health and occupational safety perspective, working from home is a sound policy to implement , provided it is feasible for your workplace.

Public health authorities recognize, however, that there are a number of workplaces where remote work is not possible. Even in circumstances where an employee is not required to self-isolate or cannot work remotely, all employees should exercise precaution and self-monitor for symptoms of COVID-19. We recommend that employers inform their employees of their duty to abstain from work and to report any symptoms or risk of COVID-19 to their employer during this crisis.

Does an employer have to pay an employee during quarantine?

There is no one-size-fits-all approach to the issue of whether an employer must pay an employee that is self-isolating, and will depend on the particular circumstances. No matter what, employers should be clear with the employee, in writing via email, about whether they will/will not be paid during the quarantine period. The employer's message should be sympathetic, and should confirm in writing exactly what is changing for that employee, and that the steps taken are a temporary necessity.

The Federal government has initiated a series of policy changes to support workers affected by COVID-19 and placed in quarantine:

  • The one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined;
  • A new dedicated toll-free phone number is established to support enquiries related to waiving the EI sickness benefits waiting period;
  • Employees claiming EI sickness benefits due to quarantine are required to provide a supporting medical certificate;
  • Employees who cannot complete their claim for EI sickness benefits due to quarantine are permitted to apply later and have their EI claim backdated to cover the period of delay. 

Credit: Gowling WLG - André Poulin-Denis, published March 23, 2020, via Lexology.com 

 

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ONTARIO SHUTDOWN - QUICK GUIDE TO EMERGENCY INCOME AND OTHER SUPPORT AVAILABLE TO YOU

Due to the provincial shutdown, effective on Tuesday, March 24, 2020 at 11:59 p.m., if you are laid off or cannot be employed remotely, here is a Quick Reference Guide to the income and other supports available to you during this emergency: 

INCOME SUPPORT:

If you are laid off due to work closures:

If you are facing reduced work hours:

If you are facing unemployment AND you don’t qualify for EI:

  • Apply for the Emergency Support Benefit (long-term income support)

  • Applications will open in April through the CRA Web site and a toll-free number

  • Amounts and eligibility are not announced yet (total funding is $5 billion)

If you are unable to work due to illness/self-quarantine:

If you are self-quarantined and ineligible for EI:

  • Apply for the Emergency Care Benefit

  • Applications will open in April through the CRA website and a toll-free number

  • Up to $900 every 2 weeks for up to 15 weeks

  • No doctor’s note required

If you are self-employed:

  • Apply for the Emergency Care Benefit (see above)

If you are staying home to care for someone:

  • Apply for the Emergency Care Benefit (see above) if you are staying home to take care of a family member with COVID-19 who doesn’t qualify

  • Apply for the Emergency Care Benefit (see above) if you are a parent staying home to care for children due to school closures, whether or not you qualify for EI

ADDITIONAL SUPPORTS

  • NOTE: Tax filing deadline has been extended to June 1, payments due August 31

  • Low to middle income Canadians: GST credit top-up (average of $400 for single adults, $600 for couples) available as soon as May 2020

  • Families: Enhanced Canada Child Benefit this year (additional $300 per child)

  • Homeowners: Deferral of mortgage payments for affected Canadians by up to 6 months (disruptions to your pay interruptions to child care, or unexpected health needs)

  • Students: Freezing all Canada Student Loans payments and interest for 6 months (average savings $160 per month)

  • Seniors: Reducing mandatory withdrawal from RRIFs by 25%

  • Indigenous: New $305 million Indigenous Community Support Fund

  • Vulnerable Population: Additional $50 million available to shelters and centres for women and children fleeing domestic violence

GENERAL & MEDICAL INFORMATION

Call 1-888-COVID19/1-888-268-4319 for non-medical information on the virus, covering everything from travel recommendations to social distancing (available in more than 110 languages from 7:30am – 8:00pm, 7 days a week)

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COVID19 - A WORKPLACE CHECKLIST

Despite we are informed there is low risk to us, publicly, precautionary steps should be taken. 

_____________________________________

"The spread of the 2019 novel coronavirus — the virus responsible for COVID-19 — is now anticipated to reach pandemic levels. Officials from the Public Health Agency of Canada reiterate that the risk of a mass outbreak in Canada remains low, but have encouraged and enforced precautionary measures.

Employers should continue to be vigilant in ensuring a safe and healthy workplace. In addition to our previous client alert, employers should be mindful of the following checklist:

1. Appoint one or more coordinators who will be responsible for tracking and communicating the latest developments of COVID-19. The coordinator(s) should have the authority to make or advise on emergency decisions such as office closures and meeting cancellations.

  • According to the size of the employer’s organization, a cross-functional team may be necessary with designated individuals to handle issues such as employee health and safety, medical/personal leaves and accommodations, communications, and compliance.

 

2. Routinely follow reliable public health authorities for news and guidelines on prevention, symptom identification, and treatments as they become available.

Reliable sources include:

3. Review or develop emergency contingency plans with appropriate disease prevention measures.

  • Contingency plans are designed to deal with business disruptions, and often include protocols for emergency communication, decision-making, and working with limited staff.
  • Consider realistic and permissible cost-cutting strategies early on; be forward-looking as the economy braces for COVID-19.
  • Employers may already have a contingency plan that is unique to their environment, but should be aware of best practices specific to epidemics.
  • Common strategies unique to disease prevention can include:
    • directing employees to contact their doctor and local public health units if they believe they have been exposed to COVID-19
    • placing posters or flyers around the workplace that encourage employees to stay home if they are sick, and that outline best practices on hand hygiene, coughing and sneezing, and symptom identification
    • providing tissues and hand sanitizer dispensers
    • routine cleaning of frequently-touched surfaces, including countertops and door knobs

4. Where possible, expand leave and work-from-home policies that are flexible and non-punitive so that employees do not feel pressured to come to work if they feel sick or believe they have been exposed.

  • Employers will be able to require this if they have objective knowledge, or a reasonably held belief, that an employee is displaying symptoms or has been exposed to COVID-19.
  • As always, ensure that employees are aware of their benefits and entitlements in the event that they or a family member fall ill.
  • In screening for infection risks, be cautious of the laws around privacy and human rights.
  • For more information, review our previous alert on COVID-19.

5. Cancel or limit non-essential and work-related travel, especially to areas cautioned against by health authorities. Arrange for alternative methods of communication with business contacts in affected areas.

  • Monitor the travel advisories in Canada and in other countries that the employer organization may have offices in. Follow reliable public health authorities for information on travel restrictions, including:
  • Travelers returning to Canada from areas under advisory may be required to self-isolate and contact their local public health unit to report their arrival and/or symptoms. Any requirements to do so will be on Canada’s updated COVID-19 page.

6. Be aware of special reporting requirements for designated individuals under Ontario’s Health Protection and Promotion Act, and Personal Health Information Protection Act.[1]

  • Certain individuals may be required to report information on people they suspect have, or could have, COVID-19 to Ontario’s chief medical officer. This reporting obligation applies to individuals such as (but not limited to):
    • regulated health professionals
    • hospital administrators
    • laboratory operators
    • school principals
    • superintendents of stipulated institutions
  • Employers and/or employees who operate in these positions should ensure there are reporting protocols in place if applicable.

7. Document why and how certain measures are used to prevent the spread of COVID-19 in the workplace, and who was affected by them.

  • Be mindful of cultural, medical, and other grounds when making decisions about disease prevention in the workplace. This includes how and who employers question about exposure to COVID-19, and how employers use information gathered.
  • In all cases, ensure compliance with human rights, privacy, and employment laws.

For more information, review our previous alert on COVID-19.

[1]E.g. HPPA ss. 25-29; PHIPA ss. 39-40."

This excellent article was written by Jordan Arthur Kirkness and Susan MacMillan, Baker McKenzie, sourced from Lexology.com on March 10, 20120.  

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EMPLOYERS HAVE A DUTY TO PROTECT WORKERS FROM HARM, NOT ONLY PHYSICAL

The Occupational Health and Safety Act of Ontario statutorily mandates that Ontario employers must take every precaution, reasonable in the circumstances, for the protection of any worker.

This is often referred to, legally, as every employer’s “general duty” in the workplace.  

So, what does that mean? In Ontario, what is required is interpretative, ultimately; namely, the “circumstances of the case” must be considered on a case-by-case basis.

Each case must be considered and assessed for what is a reasonable precaution in the specific workplace [Reference: R. v. Quinton Steel, 2017 ONCA 1006, para. 29].

This general duty does not necessarily apply only to avoiding physical injury in the workplace but could also apply to mental and emotional harm or injury, too, such as resulting from harassment, intimidation or being exposed to a toxic work environment.

As a result of this general duty:

-    every Ontario employer should conduct workplace risk assessments, at least annually, to satisfy this general duty, including with respect to providing a harassment-free workplace, as is required by Ontario law, and to promote and ensure a healthy workplace for everyone;

-    every Ontario employer is required to assess the circumstances of the workplace when doing a workplace risk assessment; and

-    even if an employer's safety policy complies with the applicable regulation, it may not be in legal compliance if the circumstances of the workplace require a higher standard of safety to protect workers.

 

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I SIGNED AWAY MY RIGHTS WHEN I TOOK THIS JOB – CAN I GET THEM BACK, PLEASE? MAYBE.

Commonly employers use contracts to try to limit an employee’s entitlements upon termination (for any reason) to only those statutory minimums mandated by Ontario’s Employment Standards Act, 2000, rather than the so-called one-month-notice-per-year-of-service rule of thumb often adopted by lawyers and the Court.  

Judges tend to scrutinize these efforts fairly closely.

Over the past year, or so, in Ontario, many new cases have refined and developed when an employment contract, which limits an employee’s rights, will be enforced by the Court.

Below is an excellent article explaining the basics:

“For Canadian employers, one of the most important purposes of written employment contracts is to lawfully limit the amount of notice or compensation that they will owe to employees whose employment is terminated without cause.

Absent a written agreement with a valid termination clause, employees are entitled to “reasonable” notice or pay instead of notice. Depending on the employee’s age, position, length of service and ability to find a new job, employers may have to pay terminated employees anywhere from 3 months to as high as 24 months’ pay on a termination without cause. Contracts with valid termination provisions can dramatically reduce an employer’s obligation and risk in this regard.

Written contracts that do contain termination clauses will, however, be carefully scrutinized by our courts, who routinely make findings that such clauses are unenforceable. Some common reasons supporting a finding of unenforceability include:

1.    a lack of “consideration”, where an existing employee has signed a new contract of employment without receiving something of value (a raise or promotion, for example) in exchange;
2.    ambiguity in the contract or language that is not sufficiently clear to lawfully limit the employee’s entitlements; or
3.    a violation of employment standards legislation, where the termination provision is capable of providing for less than minimum statutory requirements on termination, whether at present or at some time in the future.

In recent years, our courts have also become increasingly prepared to invalidate termination clauses on an expanding variety of new technical grounds. This means that contracts with termination clauses that may have been considered enforceable in past years may require revision to catch up with recent judicial rulings.

Employers can best protect themselves by taking the following steps:

1.    if they are not using written contracts already, start doing so with all new hires, and possibly introduce contracts to existing employees for valid consideration;
2.    if they presently have employment contracts in place that are silent on the issue of termination, introduce valid termination provisions for all new hires, and possibly for existing employees where there is adequate consideration; and
3.    if they have contracts with termination clauses, have those clauses reviewed annually to keep up with changes in the law and recent court decisions.

In all of the above cases, the termination language should be drafted and/or reviewed by legal counsel well versed in this specialized area of the law.”

Credit: Peter C. Straszynski, Tokin Manes LLP (via Lexology)

 

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2019 NOVA CORONAVIRUS – WHAT TO DO AND KNOW IN YOUR WORKPLACE

An excellent article by Fasken identifying the issues that can arise in your workplace with public health emergency issues, particularly the 2019 Novel Coronavirus:

“The World Health Organization (WHO) has declared the 2019 Novel Coronavirus outbreak a public health emergency of international concern. There are now over 7,500 confirmed cases of the coronavirus reported globally. [i] There are three confirmed cases in Canada with many more possible cases being investigated.[ii] Coronavirus refers to a family of viruses that can infect both humans and animals. [iii] A novel coronavirus is a new strain that has not previously been identified in humans. [iv] According to the latest information from Toronto Public Health and Health Canada, coronavirus symptoms range from mild to moderate and include fever, runny nose, headache, cough, sore throat, and difficulty breathing.[v]

The Public Health Agency of Canada currently assess the public health risk of coronavirus as low for Canada and for Canadian travellers. [vi] However, employers are understandably concerned about their employees and business continuity. This article provides some general guidance on the legal issues that employers may encounter. This is general guidance only and employers should be prepared to obtain specific legal advice to deal with specific workplace issues as matters unfold.

This general guidance will apply to most workplaces.  Workplaces that are health care facilities treating the ill will require a more immediate and tailored response to issues. Employers with unionized workforces will also need to be mindful of specific obligations in their collective agreements, including any obligation to develop a response in consultation with union representatives.

Health and Safety Precautions

Health and safety legislation imposes a general duty on employers to take reasonable precautions to protect employees. This requires employers to take active steps to ensure employees are safe from workplace hazards. The exact steps that an employer must take to protect employees from the coronavirus depends on the likelihood of employees being exposed to and contracting the virus at work. During the Severe Acute Respiratory Syndrome (SARS) outbreak in Toronto in 2003, the Ministry of Labour and public health authorities recommended that employers:

•    Ensure that employees with flu-like symptoms do not come to work;
•    Promote good hygiene practices (like handwashing) and ensure the work environment is clean;
•    Ensure that engineering controls (like ventilation) are properly maintained; and,
•    Distribute and train employees in the use of personal protective equipment, as appropriate.[vii]

This is also good preliminary advice for the coronavirus. Employers should monitor bulletins and news releases from health authorities for the latest updates. Their advice will help employers fulfill their duty to take reasonable precautions to protect employees.

Employer also have a duty under health and safety legislation to provide information to employees.  This duty could require employers to tell employees about the risk of contracting the virus at work, and about the measures in place to control or eliminate that risk.  Employees may ask about whether they can wear masks or other personal protective equipment at work. Based on current information, the use of masks, respirators, and glasses is not recommended for those outside of health care employees in close proximity to confirmed cases. Instead, the WHO is recommending standard precautions for the general public to reduce exposure to and transmission of the virus, including:

•    Frequently clean hands by using alcohol-based hand rub or soap and water;
•    When coughing and sneezing cover mouth and nose with flexed elbow or tissue – throw tissue away immediately and wash hands;
•    Avoid close contact with anyone who has fever and cough;
•    If you have fever, cough and difficulty breathing seek medical care early and share previous travel history with the health care provider;
•    When visiting live markets in areas currently experiencing cases of novel coronavirus, avoid direct unprotected contact with live animals and surfaces in contact with animals;
•    The consumption of raw or undercooked animal products should be avoided. Raw meat, milk or animal organs should be handled with care, to avoid cross-contamination with uncooked foods, as per good food safety practices.[viii]

Enhanced precautions will be appropriate for employees in health care working in close proximity to confirmed cases of the coronavirus.

Work Refusals

The WHO emergency declaration and the relatively quick spread of the virus has attracted significant media attention and speculation. This may result in employees refusing to perform work if they believe they may be exposed to the virus.

Employers should be familiar with the employees' right to refuse unsafe work and how these situations must be handled.  Generally, employees have the right to refuse work where they have reason to believe their health and safety is at risk.  The right to refuse is more limited for those working in certain jobs (like healthcare) where the unsafe condition is a normal part of work, or where the refusal would endanger the life, health and safety of another.

If an employee refuses to work, the employer must follow the specific resolution process outlined in health and safety legislation. Employers are generally prohibited from disciplining or threatening employees for exercising their right to refuse work. Employers who are considering disciplining an employee for a bad faith or improper work refusal should seek specific legal advice.

Time Off for Illness or Care Obligations

Employees who are ill or need to care for ill family members may be entitled to paid time off under employer policies or contracts, or unpaid time under employment standards legislation for illness or care obligations.

In Ontario, employees are entitled to take sick leave, family responsibility leave, family caregiver leave, family medical leave, and critical illness leave under employment standards legislation. Depending on the circumstances, the same event can entitle an employee to multiple leaves because each leave is a separate entitlement. These leaves can range significantly in duration. Employers should review the requirements for the different leave entitlements.

Instead of requesting a doctor's note, depending on operational needs and the leave being requested, employers may wish to simply encourage employees who are potentially infected with the coronavirus to stay at home and contact emergency health services if and as appropriate. Requiring a doctor's note in every case may actually do more harm because employees could potentially infect others at their doctor's office.

Accommodation and Discrimination

Employees are protected under human rights legislation from discrimination based on defined grounds including disability, family status, national origin, and racial and ethnic background. The category of disability is interpreted broadly and may, in certain circumstances, include the coronavirus. This is particularly true since the Ontario Human Rights Commission clarified during the 2003 outbreak that SARS should be treated as a "disability" under the Ontario Human Rights Code.  This protection applies whether based on perceived or actual disability.

Employees who are required to take time off work to care for family members may also be protected from discrimination and entitled to accommodation based on family status. In any case where an employee wishes to take a leave of absence to care for themselves or a family member due to the Coronavirus, employers should carefully assess the specific circumstances and ensure they fulfill their procedural and substantive duty to accommodate to the point of undue hardship. This may require extended leaves of absence over and above employment standards entitlements.

Employees are also protected from discrimination based on having a racial, ethnic, or national background that is believed to be associated with the coronavirus. For example, an employee of Asian descent, or an employee who is associated with someone of Asian descent, should not be treated differently from other employees because of their ethnic or national origin. Employers must, of course, be vigilant to control the risk of coronavirus at work, but the employer should take care not to be involved in speculation, alarmism, or fearmongering generally, and particularly about the origins of the virus.

Workers' Compensation

Under the workers' compensation system, employees have a statutory entitlement to compensation for personal injury or illness that arises out of and in the course of their employment, including wage-loss benefits and medical coverage. Employees who become infected and who work in a healthcare setting where they interact with patients infected with the Coronavirus, or who are required to travel to areas where the Coronavirus is known to be prevalent, may be able to claim their infection arose in the course of their employment. Employers in these situations should ensure all appropriate risk-mitigation efforts are implemented based on the latest guidance from public health authorities, and to impose travel restrictions accordingly.  

Emergency Preparedness

Although there will always be unknown and uncontrollable elements to the spread of an infectious illness, employers can take practical measures now to prepare themselves for these contingencies. Employer should.

•    Ensure managers are aware of their duties and obligations under workplace legislation, including in the areas of employment standards, human rights, and occupational health and safety as they relate to the coronavirus.
•    Monitor the latest updates from public health authorities, including municipal, provincial, and federal public health agencies. These agencies will provide objective information about the coronavirus on an ongoing basis, and employers should refer employees to these as their main source of information.
•    Review and update their policy or policies addressing communicable illnesses, and to clarify the protocols that apply to the coronavirus. Generally, these policies should address what illnesses are covered, protocols for disclosure and for staying at home, the application of paid and unpaid leave entitlements to illness and quarantine-related situations, guidelines for work-related travel, and available workplace resources.
•    Develop a broader policy to address how business operations will continue in the event of a more serious outbreak. This can be prepared as a general policy for defined emergency events, including an outbreak of infectious illness such as the Coronavirus, and should outline how core business functions and channels for decision-making will be maintained in such an event.
•    Depending on the nature, size, and sophistication of business operations, emergency preparedness plans may include succession plans for defined roles in the event of employee absences, communication protocols for internal and external parties, general health and safety practices, and operational measures for dealing with facilities that are directly affected.  

Fasken will continue to monitor the situation and will provide timely updates.

________________________________________
[i] World Health Organization. "Novel Coronavirus (2019-nCoV) situation report 10" (26 January 2020), online
[ii] Public Health Agency Canada. "2019 Novel Coronavirus infection (Wuhan, China): Outbreak update" (30 January 2020), online
[iii]World Health Organization. "Coronavirus", online
[iv] World Health Organization. "Coronavirus", online
[v] Toronto Public Health. "Novel Coronavirus (2019-nCoV)" (27 January 2020), online. "Novel Coronavirus infection: Symptoms and treatment" (26 January 2020), online.
[vi] Public Health Agency Canada. "2019 Novel Coronavirus infection (Wuhan, China): Outbreak update" (26 January 2020), online.[vii] Ministry of Labour, "Workplace Laws and SARS" (10 December 2003).[viii] World Health Organization. "Novel Coronavirus (2019-nCoV) advice for the public", online.”

Credit: Shane Todd and Justin P’ng, Fasken (via Lexology)

 

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MANDATORY AND DISCRETIONARY WORKPLACE POLICIES – A REMINDER

Here is an excellent article reminding everyone of the increasing importance of having both the legally required and effective, discretionary policies in your workplace:

“Ontario employers are required by law to have certain workplace policies in place at work. The policies that employers must have include the following:

1.    a Workplace Health and Safety Policy;
2.    a Workplace Violence and Harassment Policy;
3.    an Accessibility Policy; and
4.    a Pay Equity Plan (employers with 10 or more employees).

Failure to have these policies in place is a violation of Ontario law and may result in the imposition of statutory fines and penalties.

While not required by statute, there are other policies that employers are well advised to have in place, including:

1.    a Drug & Alcohol Policy (updated to address medical and non-medical cannabis);
2.    a Social Media Policy;
3.    an Investigations Policy;
4.    a Human Rights Policy;
5.    an Accommodation Policy;
6.    an Absenteeism Policy; and
7.    a Privacy Policy.

These policies not only help employers monitor and govern employee conduct, but also establish internal rules and processes that, if followed, will help employers limit potential liabilities.

Many small or start-up businesses are either unaware of their legal obligation to have policies in place or simply do not know where to start when it comes to drafting and implementing polices.”

Credit: Torkin Manes LLP, Shreya Patel and Peter C. Straszynki, 2019 (via Lexology.com)

 

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WORKPLACE HARASSMENT OR BULLYING? TOXIC WORK ENVIRONMENT? YOU MAY NOT BE ALLOWED TO SUE YOUR EMPLOYER DIRECTLY, ACCORDING TO NEW LAW

There have been important developments recently regarding claims arising from alleged workplace harassment, bullying and toxic work environment, as prohibited by Ontario’s Human Rights Code and the law generally.  

In a recent decision by Ontario’s Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”), the employee commenced a lawsuit against her former employer and claimed damages for constructive dismissal as a result of alleged bullying, harassment and a poisoned work environment. The Tribunal found that the employee’s claims flowed directly from her allegations of harassment and bullying in the workplace, which she said caused her to suffer chronic mental distress. The Tribunal found that, under Ontario’s Workplace Safety and Insurance Act, 1997 (the “WSIA”), the employee’s lawsuit was statute barred entirely. The employee’s allegations were “inextricably linked” to her alleged workplace injuries. In this particular case, the employee’s right to pursue a civil case against her former employer was barred.  

The case, which deals directly with constructive dismissal claims (rather than outright wrongful termination) is not yet subject to judicial review but may be.

However, employers must now consider whether cases alleging workplace harassment and bullying are more appropriate under the WSIA regime. In the event an employer determines that a case more appropriately belongs under the WSIA regime.

If an employee makes a claim for, effectively, mental stress due to such alleged conduct in the workplace, the employee may be prohibited from bringing a civil claim for damages and, if so, the employee may face a “right to sue” application by the employer.

The Case:

Morningstar v. Hospitality, 2019 ONWSIAT 2324

 

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CAN SOMEONE RECORD ME OR TAKE MY PIC IN A PUBLIC PLACE? WHAT ABOUT IN MY SCHOOL OR WORKPLACE?

Increasingly businesses (and employers) and public organizations deploy and use ever-improving surveillance technology, including workplace audio and video recording.  Ontario law has remained vigilant and watchful, attempting to balance legitimately held privacy expectations for everyone against unreasonably invasive privacy intrusion, particularly to foster security, safety and legitimate business or public interests.  

In an important, recent case, a teacher was accused of using a concealed camera to surreptitiously videotape female high school students engaging in “ordinary school-related activities in common areas” of the school. However, the evidence revealed the teacher was recording sexually based images, without audio recording. The school had posted signs notifying of the use of security cameras throughout the school. The school also had a policy prohibiting its teachers from making videos of students, or otherwise tampering with the school’s surveillance cameras. The teacher was charged with voyeurism under Canada’s Criminal Code, a sexually related offence.

The Supreme Court declared that privacy, particularly in a public or semi-private place, is not an all-or-nothing proposition in Canada. There can be no absolute expectation of privacy for anyone, at least not in a public, or semi-private, place. The specific circumstances must be considered, which determine what reasonable expectation of privacy should be legally protected in a contextualized approach.

A person can reasonably expect privacy in a public, or semi-public, place, particularly protection from sexually driven surveillance, but the specific expectation that will be legally protected must be determined by many factors, such as:

•    the nature of the place and its location;
•    the scope and nature of the conduct by the other party, such as observation or recording;
•    whether the person subject to the conduct had consented to being so observed or recorded, at was even was aware of it;
•    the manner in which the observation or recording was undertaken;
•    the subject matter or content of the observation or recording;
•    any applicable rules, policies or regulations that may prohibit or restrict that conduct;
•    the nature of the relationship, if any, between the person being observed or recorded and the person engaging in the observation or recording;
•    the reason for the observation or recording; and
•    the characteristics of the person being observed or recorded, particularly if the person is a child, youth or a vulnerable person.

The teacher's conviction was upheld by Canada's highest Court. The Court concluded that the young, female students at the school had not consented to being recorded in such manner, or even been aware of him doing so. The teacher held a trust relationship with the students, which he violated, when he knew he was not allowed to make these video recordings of the students, particularly when it was sexually driven. The female students’ privacy had been violated in the circumstances.

However, the female students, in the circumstances, could not reasonably have expected to be protected absolutely from such misconduct by their teacher. Rather, the Court engaged in a contextual, multi-factored analysis.

Accordingly, no one can expect absolute protection, at least not by the criminal law, from being observed or recorded in public, even if it may be sexual in nature. Ultimately, the Supreme Court enshrined a case-by-case analysis, which may, or may not, offer the protection of, at least, Canada's criminal law.

Businesses, particularly employers, and other organizations need to have a clear policy prohibiting surreptitious observation and recording in their places of business, absent consent.  They can also be held vicariously liable for improper, unwanted surveillance being conducted in their place of business, including public areas.

In addition to potential criminal charges for those who unlawfully observe or record others, including in public spaces, the offender could potentially be held liable civilly in Ontario, particularly for damages for breaching the tort of “intrusion upon seclusion”, or for violating other privacy law.

However, the Supreme Court’s decision in this case has clarified and shaped the law on a person’s reasonable expectation of privacy, particularly if that person is observed or recording in a public, or semi-private, place.

Ontario Courts and privacy regulators will also continue to review surveillance technology to ensure it is legitimately, justifiably and properly deployed and utilized, minimizing unreasonably invasive infringement on privacy expectation.

Surveillance cannot, of course, be prohibited - it benefits the public, if utilized appropriately and legally. However, whether surveillance exceeds the legal boundary by offending an individual’s reasonable expectation of privacy will depend on the specific circumstances and various factors, which will themselves continue to develop as ever-evolving surveillance technology continues to proliferate.

As technology becomes more subtle, sophisticated, accessible and ubiquitous, everyone must remain mindful that their privacy is not absolute and may be subject to observation, or even recording, particularly in public places.

Privacy is not an “all-or-nothing” right. Intrusion upon your seclusion should not be viewed as an inevitably necessary part of your rapidly changing modern life; rather, the law imposes limits which, if offended, may expose the offender to both criminal and civil liability. Privacy is not a lost expectation in our contemporary world, as skeptics contend, but only an evolving one, judiciously straining to keep pace with constantly changing and increasingly innovative technology.   


The Case:

R. v. Jarvis, 2019 SCC 10 (CanLII)

 

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THE COURT IS NOW INTOLERANT OF SEXUAL MISCONDUCT IN THE WORKPLACE – PERIOD.

In this recent case, a long-time employee (thirty years) was justifiably terminated, without severance, for an isolated incident of sexual harassment in the workplace.

The employee had no prior disciplinary record during his long tenure.

The employee had slapped his female co-worker on the buttocks, in the presence of others.

The employee did not apologize, or even feign remorse.

The employee was aware of the employer’s anti-harassment workplace policy and he also held a supervisory position over the affected female co-worker.

The employer terminated the offending employee summarily.

He sued for wrongful termination, alleging the punishment was too severe for the crime, effectively.  

The Court upheld the termination, for cause.

The Court held:

[The employee’s conduct] …was an act that attacked her dignity and self-respect. This type of conduct is unacceptable in today’s workplace.”

The lesson? The Court is no longer tolerable of any sexually charged misconduct in the workplace, even if it seems innocent or not serious to anyone involved.

Interestingly, the Court granted the target female co-worker limited rights to participate in the case and the trial, which is fairly uncommon in wrongful dismissal cases. The Court concluded that the complainant’s rights, integrity and reputation may be affected, thereby given her the authority to have “intervenor” status in the case.   

The Case:

Render v. ThyssenKrupp Elevator (Canada) Limited, 2019 ONSC 7460.  

 

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DON’T TAKE SECRET PHOTOS OF OTHERS IN YOUR WORKPLACE – IF YOU’RE CAUGHT, ABRUPT FIRING AND NO SEVERANCE – PRIVACY WAS BREACHED

A car dealership employee surreptitiously took videos and photos of female clients of the dealership.

He then showed them to co-employees and made inappropriate comments, most of which were sexually charged in nature.

He was caught and fired, for cause.

He sued.

The Court held there was justification for his abrupt termination without any compensation whatsoever (i.e., no severance).

He had also been warned previously by the employer not to engage in this type of inappropriate conduct, which sealed his fate in the case.

The Court did not accept this position; namely, that he was only trying to protect the dealership and its best interests.

The lesson? Do not take secret images of others in your workplace and, in particular, do not share those with others in an appropriate manner.

If you do, your firing will be justified – without any severance.

The Case:

Durant v. Aviation A. Auto, 2019 NBQB 214

 

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JASON’S SPECIAL TIPS FOR YOUR OFFICE X-MAS PARTY

I’m loathe to be Grinchy, but here are some tips for your workplace holiday party or event this year:

Location and Driving:

●    consider holding the event off-site at a licensed event venue

●    pre-arrange designated drivers;

●    provide taxi chits or a credit system with a local taxi service

●    hire a local transportation service, if not a taxi service

●    inform all employees not to personally drive to and from the event, unless that employee will consume no festive cheer at the event

●    arrange for a door supervisor to monitor if anyone leaves the event, after consuming any alcohol, and intends to operate a vehicle and, if there is a concern, for that supervisor to speak to a designated manager on site to intervene

Alcohol:

●    set a fixed time period when alcohol will be available or served

●    provide a set/controlled number of drink chits or tickets per guest

●    hire or use experienced, independent bartender(s) or server(s), with appropriate SMARTserve and training to identify, prevent and help manage over consumption

●    designate non-drinking employees or managers to monitor consumption at the event and identify any potential issues or concerns

●    offer and serve food and non-alcoholic options

Prevention – Discrimination and Harassment:

●    make sure the event is non-denominational

●    offer non-alcoholic alternatives and options to avoid any perception that the event is exclusionary or intended to apply only to certain staff/employees

●    consider setting a dress code for the event and communicating that to all employees/staff in advance

●    circulate your expectations about conduct in advance, in an effective way (mutual respect, professional workplace conduct, treatment of others)

●    ensure your discrimination and harassment policies are posted in the workplace in a common area and at the event

●    consider circulating your workplace discrimination and harassment policies in advance to all invited guests (employees/staff)

●    arrange for designated employee(s) to monitor the event and bring to your attention any concerns, so they can be addressed promptly, discretely and properly before any harm or embarrassment is caused

Happy holidays!

 

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WORKPLACE HARASSMENT AND BULLYING – DON’T LET ‘HE SAID/SHE SAID’ DISCOURAGE YOU FROM COMPLAINING – CORROBORATION IS NOT REQUIRED

Employees who experience sexual or other harassment or violence in the workplace should not be discouraged from reporting to their employer simply because no one else witnessed the harassment or violence. He said/she said concerns are no reason to avoid making a complaint to ensure the harasser is properly investigated and, if appropriate, punished.

Under the new anti-workplace harassment and violence laws in Ontario, effective January 1, 2017, incidents of harassment in the workplace must be investigated by employers. The outcome of the investigation must also be reported to both the victim and the harasser. Confidentiality must be maintained at all times.  

However, these changes to Ontario’s Occupational Health and Safety Act, designed to minimize, if not eliminate, workplace sexual and other harassment, do not require that a complaint’s evidence of the harassment be corroborated before a finding of harassment can be made.

Similarly, the Courts and Human Rights Tribunal in Ontario do not require corroboration before a finding of harassment can be made. The law recognizes that often this type of conduct, particularly sexual harassment or violence, occurs in a private setting, often where no witnesses are present.

For example, the Supreme Court recognizes that:  

Corroborative evidence is always helpful and does strengthen the evidence of the party relying on it as I believe Rowles J.A. was implying in her comments. However, it is not a legal requirement and indeed, may not be available, especially where alleged incidents took place decades earlier. Incidents of sexual assault normally occur in private.”

Ontario’s Human Right Tribunal also recognizes that:

There were, however, problems with the investigation conducted by Professional Standards. Det. Young, the investigator assigned to investigate all three matters testified that he had not investigated an allegation of sexual harassment and appeared not to have been given any special training in such matters. He concluded that because there had not been any “independent evidence” the applicant’s allegations could not be “substantiated” and recommended that the matter not proceed to a disciplinary proceeding.

This requirement for “independent evidence” ignores the fact that many allegations of discrimination and harassment take place in private and often there is no evidence “independent” of the two parties to the incidents. Even where witnesses are present, there may be compelling reasons for them to not be forthcoming in an investigation.”

Accordingly, while corroborative evidence will, in most cases, be helpful in the factual investigation, it is not necessary. The Court or other decision-maker should properly consider the veracity, credibility and reliability of the evidence of the victim, alleged harasser and others who may have knowledge of the circumstances.

Merely because a victim cannot corroborate what he or she experienced at the hands of a harasser is certainly no reason to avoid reporting the sexual harassment or violence to ensure the investigator, Court or other decision-making body properly examines the circumstances and makes the necessary findings.

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SUING YOUR EMPLOYER FOR FORCING YOU TO QUIT DUE TO WORKPLACE BULLYING, HARASSMENT OR TOXICITY? THINK AGAIN. NOT IF WSIB APPLIES.

Due to a new decision by the Ontario Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”), an employee in Ontario cannot sue his or her employer for constructive dismissal, if the reason the employee was forced to leave his or her employ was due to chronic mental stress, caused by workplace bullying, harassment or other toxicity in the workplace. 

The employer brought an application to the WSIAT, after it had been named in a civil suit alleging constructive dismissal. Under Ontario law, an employer subject to the provisions of the Workplace Safety and Insurance Act, 1997, may apply to the WSIAT for a determination of whether the employee has a right to sue.

The Plaintiff employee had resigned her position with the employer in February 2018 claiming constructive dismissal as a result of harassment and bullying in the workplace. She filed a Statement of Claim in the Ontario Superior Court of Justice on April 2, 2018, claiming damages for constructive dismissal, bullying, harassment and/or a poisoned work environment pursuant to the Occupational Health and Safety Act (the “OHSA”), the tort of harassment, as well as punitive, aggravated and/or moral damages. Of note, she claimed she “was forced to resign from her position with [the Applicant] due to the harassment, bullying and abuse she endured during the course of her employment and the resulting mental distress she experienced and continues to experience.” She also asserted that her claim “relates to the harassment and bullying that [she] experienced as a result of a toxic work environment created by [the Applicant’s] employees and management and her subsequent constructive dismissal.”

The WSIT held, in part:

“[29] … I note that generally the Tribunal has found that the right to bring an action for wrongful dismissal has not been removed by the WSIA. It is only in the exceptional case that this is not so, where the circumstances of the wrongful dismissal claim are inextricably linked to the work injury. See, for example, Decisions No. 3836/17, 1319/01 2, and 566/00.

[30] In my view, that exception applies here. The Respondent’s action against the Applicant is not for wrongful dismissal in the usual sense, but rather is for constructive dismissal, meaning her employment was effectively terminated by the harassing and bullying conduct of co-workers and management which caused her mental distress to such a degree that she was forced to take sick leave and ultimately to resign. I find that these facts, if proven, are inextricably linked to a claim for injury governed by the terms of section 13(4) of the WSIA, as cited above. In other words, I find that the worker’s Statement of Claim is, in essence, a claim for injury resulting from alleged workplace harassment and bullying and thus is within the scope of section 13(4) as amended to provide for entitlement for chronic mental stress arising out of, and in the course of, the Respondent’s employment. Moreover, I find that the other remedies sought by the Respondent are also claimed on the same facts, of harassment and bullying in the workplace. Accordingly, I find the worker’s right of action is taken away by the WSIA, pursuant to section 26 in this case.”

Therefore, if your employer is subject to WSIB enrollment, currently you have no right to sue your employer for being forced to quit or resign due to mental stress you experience in the workplace caused by bullying, harassment and/or other toxic indicia, including those caused by your co-employees. 

The Case:

Morningstar v. Hospitality Fallsview Holdings Inc. (Decision No. 1227/19), 2019 ONWSIAT 2324 (CanLII)

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DO NOT SHARE AN INTIMATE IMAGE OF YOUR CO-WORKER – YOU’LL BE FIRED WITH NO SEVERANCE

Employee A receives an intimate/personal image on her ‘phone from Employee B (of Employee B). A then forwards the image (i.e., shares it) with others, both within and outside of the workplace. B brings a harassment complaint against A, under the employer’s mandatory prevention of workplace harassment policy. The employer investigates. A is terminated summarily, with no severance or other statutory notice of termination, under Ontario’s Employment Standards Act, 2000 (the “ESA”), or otherwise.  

A makes a complaint to the Ontario Ministry of Labour, pursuant to the ESA and Ontario’s Occupational Health and Safety Act, challenging the summary termination and seeking termination pay under the ESA.

The Ministry upholds the employer’s termination and dismisses A’s complaint.

In doing so, the Ministry relied on a provision in the ESA, whereby an employee is not entitled to notice of termination or termination pay under the ESA if “an employee who has been guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer.”

If this is the case, A is not entitled to the minimum, statutory standards in Ontario for termination notice and pay.

The employer must prove that A, on a balance of probabilities, that his exemption applies, including that A acted willfully, rather than in a careless, thoughtless, headless or inadvertent manner, no matter how serious.

Accordingly, privacy in our increasingly digital age and workplaces is being recognized and protected more diligently by our regulatory bodies.

 

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EDIBLES AND TOPICAL USE - MORE TO KNOW ABOUT CANNABIS IN YOUR WORKPLACE

Very recently new regulations to Canada’s Cannabis Act were enacted, establishing new rules for the legal production and sale of new classes of marijuana; namely, edibles, extracts and topical products.

These new products are likely to be available for purchase online and in stores in mid-December.

Employers in Ontario need to update and revise their written workplace policy regarding cannabis to address these new products, specifically, which may not be as obvious to detect in the workplace.

These new products pose new challenges to maintaining a cannabis-free workplace. For example, these new products:

  1. are more difficult to observe or detect possession of – they may be odourless and easily concealed, as opposed to smoking or vaping – they may also be incorporated into everyday products, further challenging the ability to detect and manage them in the workplace; and
  2. may cause unintended or unplanned impairment or intoxication – ingesting or topically applying cannabis often causes different reactions than vaping or smoking, such as delayed or even longer-lasting impact – often users do not know or understand the concentration of cannabis in these new products and, therefore, do not anticipate the impairment impact they may have. 

Every Ontario employer should have a robust substance use policy in their workplaces. Restricting only smoking, vaping or otherwise inhaling is no longer enough. Rather, ingestion and applying topically must also be specifically regulated in the policy. 

Employees must be expected to attend work in a suitable and appropriate mental and physical condition and remain fit for duty at all times.

Need a policy? Call us. We’ve got you covered. 

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EMPLOYEE GETS IN TROUBLE AT WORK AND TELLS THE EMPLOYER HE/SHE INTENDS TO SPEAK TO A LAWYER – CAN YOU BE FIRED FOR THAT? NOPE, HERE’S YOUR REMEDY

Under Ontario’s Employment Standards Act, 2000 (the “Act”), an employer cannot terminate or otherwise punish an employee who asserts his or her rights under the Act. This is known as “reprisal” by the employer and, generally, will cause the employer to be punished itself by the Ontario Ministry of Labour and, possibly, the Ontario Labour Relations Board.

The case:

Zongping (Peter) Luo v. Economical Mutual Insurance Company, 2015 CanLII 79023 (ON LRB)

Mr. Luo was terminated by his insurance company employer about one month after informing them that he “might get legal help” regarding a dispute in the workplace.

He made a complaint to the Ontario Ministry of Labour, including alleging reprisal against Economical. The case was escalated to the Ontario Labour Relations Board (the “OLRB”), which decided that Economical did not engage in reprisal in this particular case.

Reportedly Mr. Luo did not specifically mention the Act when he asserted that he “might get legal help” – a factor. The OLRB concluded this statement by Mr. Luo could conceivably encompass a fairly broad range of potential actions, not only limited to those available to him under the Act.

Mr. Luo also admitted in the hearing that he was unaware of the Act when he made his statement – that did not help his case, either. Not long after he was terminated, Mr. Luo also sent an e-mail to the employer referring to wrongful termination and discrimination, but nothing about reprisal.
Ultimately, the OLRB held:

“There are no ‘magic words’ required for an employee to invoke the protection of s. 74 of the Act [the reprisal provision of the Employment Standards Act] so it is not necessary for an employee to refer specifically to the Act . . . However, where the background facts do not appear to raise issues of the enforcement of the Act and the employee makes only a generalized threat to seek legal assistance – as in this case – the protection of s. 74 of the Act cannot be engaged.”

Therefore, according to this case, making generalized assertions or threats to your employer, including that you may speak to a lawyer, may not support a claim of retaliation against your employer, if you believe you were punished for doing so. You need to be specific, ostensibly. Specifically make a request for your employer to comply with the Act or the other health and safety legislation that applies to your workplace, such as Ontario’s Occupational Health and Safety Act (which also addresses harassment in the workplace). Effectively, you will need to seek to exercise your rights very specifically under the Act or other legislation, or you will not likely succeed in a complaint of reprisal against your employer.

In addition to a reprisal claim, an employee may still have a claim for wrongful termination and other damages that may be available, depending on the circumstances.

 

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QUITTING A JOB - CAN I TAKE IT ALL BACK?

Quitting is a normal part of any employment relationship.  Any employee contemplating doing so will have hopefully made the right decision without feeling the sting of regret.   Regret is a common consideration as resignations will often prompt questions related to “are you sure about this?” from an employer, and it turns out the response to that question could be critical.

At law a resignation must be ‘clear and unequivocal’ in consideration of all the contextual factors surrounding the resignation.  This would make most employers feel confident that a resignation given in writing would be firm and enforceable.  But a recent case from the Ontario Court of Appeal draws some uncertainty into such a situation.

This case involved an employee who, upon learning that her employer would implement a new computer software, made a decision to take an early retirement rather than undergo the learning process of a new computer software.  She submitted her written notice of retirement to her manager and indicated that her primary reason for early retirement was the implementation of the new computer software. Furthermore, her manager expressed an opportunity for her to reconsider and rescind her retirement if she decided to do so.  Shortly thereafter the employee’s retirement was announced to the office. 

The employer’s plans eventually changed when, prior to the employee’s effective final day of work, the employer decided not to proceed with the implementation of a new computer software.  As a result the employee decided to rescind her notice of resignation and, despite the previous verbal acknowledgment that she could reconsider, the response from the employer was that her retirement would be final. 

The employee commenced an action for wrongful dismissal and, on an appeal to the Ontario Court of Appeal, was found to have not rendered a “clear and unequivocal” resignation.  The Court of Appeal made this finding based on the consideration that her resignation was clearly premised on the implementation of the new computer software as well the discussions between the employee and her manager in which she was given an opportunity to reconsider retirement.  The Court of Appeal concluded that the employee had rescinded her retirement notice and as a result was wrongfully terminated, with entitlement to damages.

This case serves as a valuable lesson for employers seeking to rely on a written resignation to determine that a resignation was ‘clear and unequivocal’.  Employer’s should take caution to investigate the contextual circumstances to a resignation before taking the position that a resignation is firm and enforceable. 

For assistance in disputed employment law matters, contact our office to book a consultation.

Citation: English v. Manulife Financial Corporation, 2019 ONCA 612.

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TRY NOT TO MASTURBATE AT WORK - IT'S LIKELY CAUSE FOR YOUR TERMINATION

Co-employees made complaints to their employer about a person “breathing heavily, making erratic movements and moving” in a bathroom stall in the unionized workplace.

The employer investigated and discovered the person to be a long-term employee.

The employer met with the employee to discuss these concerns, following which the employee appeared to have stopped for a period of time, but eventually resumed his bathroom sessions.

The employer invited the employer to explain if his need to satisfy himself in the workplace bathroom arose from a medical condition, but the employee did not identify any at the time.

Eventually the employee admitted to viewing pornography in the bathroom stall, while self-stimulating himself.

The union grieved his termination, for cause, claiming the employee’s workplace masturbation related to a sex addiction, protected by human rights laws.

The arbitrator concluded the employer knew what he was doing, had been warned not to do it and that he was causing an inappropriate disturbance in the workplace.  His masturbation was not caused by sex addiction, or a disability. The arbitrator did not hold that his continuing masturbation qualified as a sex addiction, or whether such an addiction, if it exists, is a medical condition warranting the protection of human rights laws. Even if that were wrong, the union failed to prove that the employee’s addiction disabled him, or affected him from performing his job and, therefore, in the absence of any proved disability, the employer had no duty to accommodate his proclivity to stimulate himself in the bathroom.

This case does not definitively close the door on whether sex addiction is a recognized medical condition. The next case may derive a different result.

Rather, the case emphasizes the importance of progressively disciplining employees before terminating for cause. In this case, had the employer not initially warned the employee not to self-stimulate himself in the company bathroom, the conclusion of the case could potentially have been different.

For now, however, assume that masturbating at work is likely cause for your termination, for cause, particularly if other employees are aware of what you are doing. 

The case:

Unifor, Local 2215 v. I.M.P. Group Limited (Aerospace Division), 2019 CanLII 42906 (NS LA). 

 

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WEED AT WORK? NOPE, UNLESS ITS LEGIT MEDICAL USE

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

Need an effective workplace policy for smoking, vaping and cannabis use?

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PROTECTING YOU FROM WORKPLACE HARASSMENT AND VIOLENCE - YOUR EMPLOYER'S DUTIES

Since September 8, 2016, Bill 132 substantially upgraded Ontario’s Occupational Health and Safety Act and employers’ obligations for workplace (sexual) harassment. These sweeping changes impose new, proactive measures on all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.

Employers in Ontario must:

  • make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
  • update the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.

  • establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
  • take care to ensure the Program complies with the new law, including:

-     measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);

-     alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;

-     explain fully how incidents or complaints of workplace harassment will be investigated and addressed;

-     explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;

-     explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and

-     affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;

  • train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;  
  • Tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
  • investigate all incidents and complaints of workplace harassment (fairly and completely);
  • retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
  • only utilize an investigator who is, and who will be perceived as, competent and impartial;
  • make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
  • be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external.  

Need a workplace policy? Call us.  

 

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CHANGING AN EMPLOYEE'S JOB - CONSTRUCTIVE DISMISSAL AND THE IMPORTANCE OF A BROAD JOB DESCRIPTION

Your “job description” when you accept your employ may be more important than you realize. 

When an employer changes or modifies an employee’s duties or role, if the change is substantial, it may amount to a “constructive” (rather than wrongful) dismissal.

Effectively, in order to potentially qualify as a change that justifies the employee refusing to continue and suing for damages, the change must meet this two-part test:

  1. firstly, the change must be made unilaterally by the employer and be considered a breach of an express or implied term of the employment contract, which substantially alters an essential term of employment; and
  2. a reasonable person in the same situation as the employee would have believed that an essential term of employment was substantially changed.

In a recent case, a senior manager, who had been employed by a large municipality for eighteen years, resigned from his employ, alleging that the employer had substantially altered his job duties and responsibilities. He also sued for constructive dismissal.

The Court applied the test above and, in doing so, held that the new job assignment given to the employee involved no change in pay or title. There was also no loss of status or prestige. The Court also held a unilateral change in duties or a role, even if substantial, was an implicit part of the job as set out in the particular job description for the employee. The employee had not been hired to perform any one specific function and his expected duties were broad in scope. It was not an express or implied term of his employment that he would always maintain the same duties and responsibilities.

The lesson?

Employers should ensure that job descriptions are broadly worded, not narrowly defined. The key issue is the nature and scope of the duties expected of the employee. A broadly cast job description will allow the employer more flexibility to reassign work, change duties or alter an employee’s role, including if the business evolves or changes over time. In this case, the Court held, based on the broadly worded job description, the employer had the right to reassign files and projects without threatening the employment relationship.

The employee lost. No damages for “constructive dismissal” were awarded. 

The Case:

Whalley v. Cape Breton Regional Municipality, 2018 NSSC 325 (CanLII)

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SUSPENDED FOR A WORKPLACE INVESTIGATION - THE COURT IS NOT LIKELY GOING TO HELP YOU

If a workplace complaint is made against you, for harassment for example, and you are suspended by your employer while it conducts an internal investigation, it is very unlikely that the Court will intervene to reverse your suspension before the investigation is properly completed.

Since employer’s are required by law to investigate a workplace harassment complaint, the Court confers fairly broad latitude and flexibility to the employer to do so. Provided the employer conducts a reasonable investigation, including any necessary procedural steps to achieve confidentiality and fairness, the Court is very unlikely to interfere with an employer’s decision to suspend any employee for the purpose of conducting, and during, the investigation. The employer may have to justify the decision, if challenged, but if reasonable justification is proffered, the Court is unlikely to intervene.

If an employer is conducting a workplace investigation reasonably, the employer’s duty to do so will also outweigh any potential damage to the reputation of any person involved in the investigation, including the alleged harasser. The Court’s view is that an employee’s reputation would not be impugned if the employee is exonerated by the investigation. Rather, if the employee’s reputation is damaged, it is because of his or her misconduct in the workplace, rather than the investigation conducted by the employer. Accordingly, the Court is very likely to prefer the investigation over a party’s claim that the fact of the investigation itself may harm his or her reputation.

In an Ontario case involving a doctor at a major Toronto hospital, against whom harassment issues were raised in the workplace, the doctor was partially suspended by the hospital during its internal investigation. The doctor sought an injunction that the employer reinstate him immediately. The Court rejected the doctor’s request and, in doing so, expressed: “….the Hospital is obliged to ensure that its employees can work together in the most harmonious environment possible. Disruption and conflict amongst its employees can only adversely affect the care of patients. Any internal investigation into bullying and harassment, once those allegations are raised, is not only desirable, but in many senses, obligatory.”

Therefore, if you are the target of a harassment complaint in your workplace, the best approach is likely to try to negotiate with the employer to minimize potential harm to your reputation, such as certain steps to ensure confidentiality and fairness, rather than seek judicial intervention to try to stop the investigation. If you are suspended during the investigation, it is unlikely the Court will help you, if the employer’s decision to suspend you was reasonable in the circumstances.

The Cases:

Dr. Agostino Pierro v. The Hospital for Sick Children, 2016 ONSC 2987 (CanLII)

Barrick v. Humane Society Yukon, 2018 YKSC 51 (CanLII)

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EMPLOYEES' RIGHTS ON TERMINATION - THE BASICS

Ultimately, employers do not need a reason to terminate an employee governed by Ontario law. They can do so “without cause” at any time, subject to the employee’s right to receive reasonable notice of termination, or pay in lieu of such notice. However, if an employer terminates an employee for cause, the employer may have no obligation to provide the employee with notice of termination or any pay in lieu thereof. Proving “cause” for termination is a high threshold in Ontario. The Courts routinely scrutinize an employer’s allegation of cause, often finding otherwise. Usually every case is unique and determined based on its own facts.  

Generally, an employee in Ontario is entitled to reasonable notice when his or her employer decides to terminate his or her employ without cause. Reasonable notice can be given either by ‘working’ notice (during which the employee remains employed) or by pay in lieu of reasonable notice. The amount of reasonable notice to which any employee may be entitled is case specific and depends on multiple factors, including age and level of responsibility.

Ontario employees terminated without cause are entitled minimum, statutory entitlements, including termination pay, under Ontario’s Employment Standards Act, 2000 (the “ESA”). Generally, most employees are entitled under the ESA to one week’s working notice or pay in lieu of working notice for each full year of service, up to a maximum of 8 weeks working notice or pay in lieu of working notice. This entitlement may vary depending on how many employees are terminated by an employer at any given time. In addition, employees employed for five years or more continuously may also be entitled to “severance pay” under the ESA – usually one week for each year of active service, up to a maximum number of weeks. 

These are the minimum, statutory rights only for Ontario employees. If there is no employment contract limiting an employee’s entitlement on termination without cause to the minimum standards under the ESA, or otherwise determining the entitlement, the terminated employee will be entitled to reasonable notice of termination of employment pursuant to the “common law”. Many lawyers refer to the ‘one month per year of service’ rule of thumb, but this is not the law. Rather, common law entitlement to reasonable notice is determined by several of factors, including: the nature of the employment, the level of responsibility, the length of the employment, the age of the employee, the availability of alternative employment and the circumstances surrounding the employer’s decision to terminate the relationship. Usually this is a very subjective assessment.

Perversely, in order to be awarded the full amount of any entitlement to pay in lieu of notice, an employee who is terminated is obliged by law to attempt to limit and/or “mitigate” his or her damages/losses from the termination by actively seeking alternative, comparable employment. Failure to do so may adversely impact the amount of common law reasonable notice to which the employee may be entitled. Only actual damages incurred are granted by the Court. Mitigated earnings during the notice period are usually deducted from the Court’s overall award. 

The situation for federally-regulated employees is different. Under the Canada Labour Code, most employees are entitled to two weeks’ notice of termination and, after twelve consecutive months of continuous employment, employees may also be entitled to severance pay equal to two days’ pay for each year of completed service, with a minimum benefit of five days wages.

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TIPS - EMPLOYEES ON A LEAVE OF ABSENCE - HOW LONG? WHEN CAN THEY BE REPLACED? WHEN DOES IT END?

HIRING A REPLACEMENT FOR AN EMPLOYEE ON A LEAVE OF ABSENCE:  

If an accommodated employee is on a leave of absence stipulated by Ontario’s Employment Standards Act, 2000 (the “ESA”), the employee has a presumed right to return to work in the same position (if the position still exists or similar duties are still performed), or be given the opportunity to return to a comparable position. Employers cannot ‘punish’ employees who take a leave of absence authorized by the ESA, or a leave that is otherwise permitted by the employer or by applicable law, particularly if the leave of absence is attributable to a disability experienced by the employee, which is also protected by Ontario’s Human Rights Code (the “Code”).

If a replacement employee is hired, the employer may even be forced to terminate the replacement to accommodate the returning employee and, if so, liability for pay in lieu of notice (and other statutory rights) may ensue, particularly if the replacement cannot be placed in another, satisfactory position. If a replacement employee is hired, the employment offer should specifically address this, including by defining the temporary nature of the hire and the limited entitlement to pay in lieu of notice. 

FRUSTRATION OF THE EMPLOYMENT RELATIONSHIP:

If an employee is absent from work due to a disability for an extended period of time, it may constitute a “frustration” of the employment contract, in which case the employer may only be lawfully required to pay the employee his or her entitlements under the ESA, which may include severance pay, being the statutory minimum at law.  However, there is no judicially set time period to apply to determine the event of frustration, particularly if the employee has long-term disability benefits available during the leave of absence. Typically, such benefits make it more difficult to determine if a frustration has taken place. In addition, employers must continually consider accommodating the employee, to the point of undue hardship, with the objective of the employee returning to work when capable of doing so. Employers should carefully consider this duty before determining that a frustration of the relationship has occurred. The employer may need to consider different return-to-work accommodation plans during the leave of absence and before taking the position that a frustration has occurred, such as, for example, periodic or temporary return-to-work options and possibly requesting and reviewing medical information for the employee regarding the employee’s ongoing and future treatment plan and potential ability to return to work in the same position, which may require modification. Usually every case is unique and has its own, distinct considerations, particularly depending on the length of the ongoing leave of absence, efforts to accommodate the employee and facilitate a return to work, either temporarily or longer and usually the step of affirming with the employee’s treatment provider(s) whether the employer is unable to return to work for the foreseeable future, even with accommodation.

ACCOMMODATING AN EMPLOYEE WITH A DISABILITY:

Under the Code, employers must accommodate employees with any disability to the point of “undue hardship”. This is historically a very high threshold for employers to justify, legally. Employers must permit any accommodation request, unless denying the request is justified based on objective evidence reasonably satisfactory in the circumstances. Generally, if an employee has a documented restriction regarding his or her inability to perform regular duties, the employer may be required to review and consider the employee’s current duties, including to decide if the employee is able to continue performing the bona fide duties for the position, which may require some modification to accommodate the employee’s specific disability. If, for example, modified duties could be achieved, the employee is likely entitled to continue in the same position, as modified. Only is such modification is virtually impossible, to the point of “undue hardship” to the employer, should the employer review and consider other positions and duties that would accommodate the employee’s documented restrictions. In that case, the employer is only obliged to pay the accommodated employee based on the duties and hours of work actually performed by the employee, including in the modified position, if any. Accommodation of any employee should always be reviewed fairly regularly, including to facilitate the employee returning to his or her regular duties as soon as reasonably capable of doing so.

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JASON'S TOP 10 TIPS - HIRING AN EMPLOYEE

Our Top 10 tips for hiring a new employee: 

[1]      SIGNED EMPLOYMENT AGREEMENT/OFFER:

Before the employee starts any work:

  • ensure you have the employee’s properly signed employment agreement or accepted offer of employment;

  • ensure the employment agreement/offer addresses everything necessary, including for termination (with and without cause), leaves of absence, police record check (if desired or mandatory), health and safety training, accessibility, job description (defining the position adequately), confidentiality, right to lay-off, rules for suspension, etc.;

  • consider if the employment agreement/offer should contain any non-competition and/or non-solicitation provisions to protect your business and assets in future; and     

  • provide a copy to the employee, before the employee starts in the position.

[2]    POLICE RECORD CHECK AND PROFESSIONAL REFERENCES:

  • obtain any required police record check (judicial record check, vulnerable sector check) and professional reference(s) prior to the employee starting any work for the position; and  

  • ensure the employment agreement/offer is conditional on those requirements and being satisfied with the results.  

[3]    HIRING AND RECRUITMENT:

  • ensure avoidance of discriminatory practices prohibited by the Ontario Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”). 

[4]    BE CLEAR ABOUT WORK, ESPECIALLY REMOTELY (FROM HOME):

  • before the employee is permitted to work remotely, such as from home, ensure you have a workplace policy specifying eligibility, rules, requirements to do so (responsiveness, productivity, conduct, etc.), digital security and access, confidentiality and approval for overtime work, among other things; and

  • consider your own confidentiality requirements and ensure the employee is required to meet those obligations, including via online communications, using digital devices, etc.

[5]    BE SENSITIVE TO POTENTIAL DISABILITY ISSUES:

  • offer accessibility and accommodation during the recruitment and hiring process, if necessary; and 

  • request the employee to identify any potential accessibility or accommodation needs, if any, being very mindful of avoiding questions, or requesting information, prohibited by the Code. 

[6]    PROTECT CONFIDENTIALITY:

  • ensure you have the employee’s properly signed confidentiality acknowledgement, depending on the nature of your business and the importance of confidentiality to you and your clients, customers, employees, service providers, etc.   

[7]    PROTECT YOUR PROPRIETARY INTERESTS:

  • if you have proprietary intellectual property and/or information technology assets, ensure you have a proper acknowledgement signed by the employee to protect both your IT and IP assets in future, including digital assets.  

[8]    DISCLOSURE OF PERSONAL INFORMATION:

  • ensure the employee has properly signed a consent to the disclosure of the employee’s personal information (i.e., photographs, videos, etc.) for the purpose of marketing and/or promotion of your business, if desired, which also protects your third party marketing/promotion partners and agents.   

[9]    SET EXPECTATIONS:

  • provide the employee access to review your workplace policies before the employee signs the employment agreement/offer;

  • offer to review those with the employee and answer any questions; and

  • ensure the employee signs an acknowledgement verifying the employee’s review of your workplace policies (and any other key expectation for the employee in future) and agreement to adhere to those in future.

[10]  COMPLY WITH STATUTORY AND CRA RULES:

  • add the new employee to your CRA account for payroll source deductions, etc.

  • ensure the employee completes a TD-1 and a TD1ON Form;

  • complete the year-end T4A and other CRA requirements for the employee;

  • add the employee to your Workplace Safety and Insurance Board account, if applicable;

  • inform the employee where a copy of (Ontario’s) Occupational Health and Safety Act, R.S.O. 1993, c. O.1, as amended (the “OHSA”), is posted prominently in your workplace;

  • inform the employee where copies of both your heath and safety policy and your violence, harassment and sexual harassment prevention policy are posted prominently in your workplace, as required by the OHSA;  

  • give the employee a copy of the “Health & Safety at Work: Prevention Starts Here” poster, required by the OHSA, which must also be displayed prominently in your workplace at all times;

  • inform the employee of the names and locations of your workplace Joint Health and Safety Committee members, if applicable;

  • give the employee a copy of the “Employment Standards in Ontario” poster, published by the Ontario Ministry of Labour; and

  • arrange for the employee, including if he or she is a supervisor, to complete the mandatory health and safety awareness training required by the OHSA.

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"FORCED RETIREMENT" OF ADVANCED-AGE EMPLOYEES - GET READY TO PAY A PREMIUM, SAYS THE COURT

The emerging judicial trend in Ontario is to give more to long-service, advanced-age employees if they are wrongfully terminated.  The Courts are determining that “forced retirements” are unacceptable and punishing employers who are perceived to do so by granting more pay in lieu of notice (i.e., longer notice periods).

Severance settlements will be impacted by this trend in the Courts and, certainly, much more careful scrutiny should be given by employers forced to consider whether to litigate the notice period for advanced age employees (typically those over the age of sixty-five years), particularly if they have mid-to-long-term service records with the employer.

Case One: Dawe v. Equitable Life Insurance Company2018 ONSC 3130 (CanLII):

The employee had worked for thirty-seven years for the employer. He was a senior VP. He was sixty-two years of age when he was terminated, without cause. He earned a salary of about $250,000 annually, plus a bonus of nearly $400,000 in the year his employment was terminated.

He sued. He claimed he had planned to work for another three years.

The Court acknowledged the general rule that twenty-four months is the maximum notice period awarded. Despite this, the Court noted “a change in society’s attitude regarding retirement”, particularly with the abolition of mandatory retirement in 2006. The Court rules that “presumptive standards no longer apply”, mainly because many employees work past the age sixty-five.

After considering all of the usual factors in a case for wrongful termination, such as the employee’s age, length of service, character of employment and availability of alternate employment), the Court emphasized the employee’s advanced age, especially on the basis that it made the availability of comparable employment more difficult for the employee.

In fact, the Court held that termination without cause of this employee was “tantamount to a forced retirement”, stressing that the employee should have been given the opportunity to retire on his own and on his own terms.

In the end, Court would have awarded the employee a “minimum 36-month notice period”. However, only thirty months’ pay in lieu of notice was granted, given that the employee claimed no more in the case.

The case has been appealed; stay tuned.

Case Two: Saikaly v. Akman Construction Ltd., 2019 ONSC 799 (CanLII):

In this recent case, a sixty-year old office manager employee, who had worked for approximately twelve years only, was given twenty-four months’ pay in lieu of notice. Following its decision above, the Court’s decision took account that the employee did not hold as high a level of position or have a lengthy service record. However, despite this, the Court concluded a two-year notice period was appropriate, particularly given the employee’s  advanced age, dedication to his former employer and lack of formal training, making it more challenging for the employee to secure alternate employment.

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DON'T USE THE SO-CALLED "RULE OF THUMB" TO PAY SEVERANCE TO SHORT-TERM EMPLOYEES

Some employers use the so-called “rule of thumb” to make severance offers to employees terminated without notice. 

Basically, one month severance pay for each completed year of service.

By implication, short-term employees, even managerial ones, would only be entitled to minimal pay in lieu of notice if terminated without cause.

This is not the law.

Indeed, length of service is only one factor a Court will assess in awarding severance pay (pay in lieu of notice). 

Furthermore, Ontario’s highest Court has also clearly rejected placing weight disproportionately on length of tenure, especially if it would potentially discredit or undervalue other factors, such as the employee’s level of responsibility, age and the nature of the position generally [Example: Minott v. O’Shanter Development Company Ltd., 42 OR (3d) 321 (ONCA); Love v. Acuity Investment Management Inc., 2011 ONCA 130 (CanLII)].

Particularly with a managerial employee, Courts now fairly consistently award significantly more for pay in lieu of notice. Higher management have been awarded six months’ pay in lieu of notice, for example, even though the length of employment was less than two years.

So, for short-term employees, particularly managerial positions, the “rule of thumb” should be carefully applied, if at all, these days. If the managerial employee is senior in age, the risk becomes even greater, as Courts are becoming increasingly intolerant of ‘forced retirement’ terminations. A severance offer should rarely, if ever, be weighted disproportionately on length of service. Rather, all of the factors typically evaluated by the Courts should be examined, such as the employee’s age, level of responsibility and possibly the employee’s reasonable ability to secure alternative and comparable employment.

Other cases in Ontario where the so-called “rule of thumb” has been rejected or, least, not applied:

  • product manager employed for nineteen months awarded nine months’ severance after termination without cause, in which the Court noted that the employer did not provide the employee with a reference letter and the manager had taken more than nine months to find alternate employment, even at a lower salary [Nemirovski v. Socast Inc., 2017 CarswellOnt 14948];

  • senior technical architect employed for less than three years awarded a five-month reasonable notice period [Raposo v. CA Canada Company, 2018 CarswellOnt 12044];

  • sales manager awarded a notice period of four months following the termination of her employment after less than one year [Nogueira v. Second Cup, 2017 CarswellOnt 16262]; and

  • general manager employed for less than two years awarded a three-month reasonable notice period, noting the employer was less than forty years of age and had found alternative, comparable employment within thirty days of the termination date [Bergeron v. Movati Athletic (Group) Inc., 2018 ONSC 885 (CanLII)].

Decisions on severance offers must be carefully considered, ideally with proper, qualified legal advice. 

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THE TEST FOR PROVING A TOXIC (POISONED) WORKPLACE

Constructive dismissal” is different from wrongful termination. If an employee leaves, usually it is by resignation. However, if the departure is due to an alleged toxic, abusive or intolerable workplace, to the extent that the employer has substantially changed fundamental or essential terms of the employment contract, it may be considered a forced departure, or constructive dismissal.

A recent B.C. case demonstrates the importance of maintaining a workplace free of harassment, toxicity and abusive behaviour.

In this case, an employee alleged a co-employee engaged in, among other things, intimidation and both verbal abuse and harassment.  The employer conducted an internal investigation, concluding many of the allegations were unfounded or unsubstantiated, although the co-employee was disciplined for using profanity in the workplace. The employer concluded the workplace conflict was attributable to both employees, effectively. The employee remains dissatisfied with the employer’s reaction to her complaints and, ultimately, resigned from her employ and sued the employer for constructive dismissal.

The Court noted the legal test to successfully establish a toxic, or intolerable, workplace, being a relatively high barrier: whether a reasonable person in the circumstances should not be expected to persevere in the employment. An individual's subjective perception of the work environment will not be enough to establish constructive dismissal. Unfriendliness, confrontations between co-workers or even some hostility and conflict will not amount to constructive dismissal where the employee is still able to perform his or her work. In this case, the Court found no ongoing, repeated abusive behaviour, nor did the employer tolerate or condone any sufficiently objectionable behaviour in the workplace. Rather, the employer was found to have treated the complaints seriously, discipline the co-employee, in part (for using profanity) and arranged for a professional coach to try to intervene and distill the conflict between the co-employees. 

The test for toxic, poisoned or intolerable, workplace had not been met by the complaining employee.

However, regardless of the legal outcome, the employer incurred significant expense in the process, which caused uncertainty and additional conflict within the workplace, all of which may be more avoidable by taking the following steps:

  • Implement and maintain a respectful workplace policy;
  • Establish and implement a workplace policy for harassment, sexual harassment and conduct within the workplace;
  • Treat and handle complaints seriously, including pursuant to any written workplace harassment policy, which is mandatory by law;
  • Take action, where appropriate; and  
  • Reaffirm the commitment to having and maintaining a respectful workplace.

The Case:   

Baraty v. Wellons Canada Corp., 2019 BCSC 33.

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LONG-TERM DISABILITY BENEFITS EXPLAINED

Long term disability benefit coverage (“LTD”) is a type of insurance that may be available to employees, often as part of a group benefit package or program. It is a contract between the insurance provider (benefit carrier) and the employer, which benefits the employee. Often the employee must contribute to the monthly premium for the LTD coverage, at least partly, which is usually deducted from the employee’s pay and remitted by the employer directly to the benefit carrier (usually as part of the total monthly expense for the group benefit package being made available to the employee).  LTD terms and conditions are not usually the same for every insurance company or benefit carrier, but often features of this coverage are the same, or similar.

For example, most LTD policies require an “elimination period”, being the period required for the employee to be absent from work due to a disability before the coverage will be triggered. Often an employee will be required by the terms of the coverage to apply for and exhaust any available short-term disability benefits (including through employment insurance sick benefits) and accumulated sick days. An  employee may also be required to apply for Canada Pension Plan disability benefits, too. 

LTD benefits are typically a percentage of the employee’s regular wages or pay (based on the pre-disability employment). The percentage may depend on the amount of the premium paid for the coverage, or other factors, and largely depends on the contract negotiated by the employer and the benefits carrier. If, while LTD is being received, an employee receives income from another sources, such as workplace insurance benefits, or Canada Pension Plan benefits (including disability-related payments), those amounts will usually be deductible, or set-off, against the LTD payment.  The LTD benefit received may be taxable or non-taxable to the employee, depending on whether tax was paid on the payment of the monthly premiums by the employee. If so, it is likely the LTD benefit may be paid on a tax-free basis to the employee. 

Generally, LTD will be available for a period of two years in terms of the employee’s ability to perform his or her own job. However, after this period, the coverage terms will shift to whether the employee could perform “any occupation”, not only his or her own vocation. This is a higher test in order to qualify for ongoing, continuous LTD in future. This assessment may require medical examination and/or information to review the “any occupation” condition.

If LTD is available beyond the two-year “any occupation” threshold, it likely will continue until the employee turns age 65, returns to work, passes away or the benefits carrier conducts a further assessment and changes, or suspends, the ongoing benefit payment. If an employee returns to work after receiving six months or more of LTD benefits, but suffers a further disability, generally the employee will have to exhaust any short-term benefits available, including through employment insurance sick benefits, possibly with the requirement to apply for CPP disability benefits.

The employer’s contract with the benefits carrier is the critical document for LTD rights and entitlements. The coverage is usually summarized by a benefits booklet, which should be requested from an employer prior to accepting a position, or during employ, to review and understand the terms and conditions of that specific LTD plan.

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FIRING SOMEONE FOR POOR PERFORMANCE (WITHOUT SEVERANCE) - DO-ABLE, BUT RISKY. THE NUTS AND BOLTS

Generally, an employer cannot abruptly terminate an employee without notice (i.e., any severance) unless there is “just cause” to do so. If such cause is absent, reasonable notice, or pay in lieu of notice, is usually required by law. It is exceedingly difficult for Ontario employers to prove “just cause” in Ontario Courtrooms. Some critics may argue that Ontario Courts remain disproportionately sympathetic to terminated employees, perhaps justifiably so. In any event, to use and prove “just cause” successfully in Ontario law is usually very challenging and reserved to fairly limited circumstances, effectively those where the contract of employment is fundamentally breached by the terminated employee.

Performance issues, in particular, can be quite problematic, at least if they are raised and relied on as “just cause” for termination. Where the misconduct is very clear and identifiable, it becomes mildly less onerous, such as serious or wilful misconduct (e.g., fraud, theft, harassment, breach of fiduciary duty) – these may more readily create the opportunity to abruptly terminate for cause and justify it afterwards, if necessary. However, short of these clear, compelling reasons, the lines becomes far more blurry and uncertain, such as for incompetence, failure to perform satisfactorily, disobedience, or other less stark missteps by an employee.

To justify termination for cause in those cases, usually employers must prove proactive steps were taken to effectively manage the poorly performing employee before a finding a dismissal was justified for cause. What must be proved? Typically employers must prove that the employee consistently failed to meet and achieve objective, reasonable performance standards that are known to the employee. Subjective dissatisfaction by an employer is usually insufficient. The Court may also consider mitigating factors relating to the employee’s circumstances or workplace. Essentially, the employer must demonstrate that the employee’s shortcomings were entirely the reason for the termination, after progressive discipline was afforded to the employee, unsuccessfully. It cannot be other factors, or be perceived to potentially be other factors, such as economic downturn or the employer’s unwillingness to offer reasonable accommodation, that is the reason for the employee’s sub-standard performance.

Generally, the Court will require a fairly onerous progressive discipline process before it will allow the employer to terminate successfully for cause for performance-related issues. This usually involves prior warnings and an opportunity for improvement or rehabilitation. Unless the employee’s conduct reaches the high threshold of “gross” incompetence, particularly by endangering the lives of others, generally the employer is judicially expected to, at the very least: warn the employee that his or her job is at risk if performance does not improve within a specified period; and provide reasonable time and support for improvement; and demonstrate that, despite this, the employee’s sub-standard performance persisted.

Employers must also be cognizant of whether an employee’s incompetence may potentially relate to (or arguably relate to) any prohibited grounds of discrimination under Ontario's Human Rights Code. In that case, the duty to accommodate may arise, to the point of undue hardship, making it even more difficult to justify a termination for cause based on poor performance – and more risky to do so.

Employers in Ontario should:

  • Establish a clear policy and/or job description outlining performance standards;  
  • Regularly and consistently apply enterprise-wide performance standards;  
  • Consistently provide feedback to employees and avoid potentially “mixed messaging”;
  • Clearly define the expectations on an ongoing basis (ideally in writing);
  • Document carefully all steps taken to progressively discipline an employee, including by identifying the expectations the employee cannot, or will not, achieve or meet;
  • Warn the employee of the risks associated with poor performance;
  • Provide a reasonable amount of time to rectify the poor performance and comply with the reasonable expectations; and 
  • Be patient and methodical in the process, including by contemplating what must be proved, ultimately, if the employee sues for wrongful termination.
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CAN I BE FIRED FOR CAUSE FOR BEING CHARGED WITH ANY CRIMINAL OFFENCE, OR OTHER OFF-DUTY MISCONDUCT? SHORT ANSWER: NOT LIKELY

There is no dispute in Ontario that employers are permitted to apply reasonable rules and standards on employees in the workplace. They may discipline and fire employees, if appropriate steps by them are taken and there are proper grounds to do so, at law. Employees who break the rules or engage in serious misconduct in the workplace are subject to termination, for cause and without severance pay.

However, employees’ misconduct that takes place off-duty, on personal time or outside of the workplace, is a different issue entirely in Ontario law.

This includes, for example, conduct by an employee on social media, when the employer may feel the employee is acting inappropriately, or when an employee is charged with a criminal offence, such as impaired driving, domestic assault or even a less serious offence, such as theft or mischief.

Ontario Courts have addressed these questions and generally held that criminal charges for off-duty (alleged) misconduct, without more, are insufficient grounds to dismiss the employee for cause and without either notice or pay in lieu of notice.

For example, in a 2016 Ontario case, when the employee sued for wrongful termination as a result, the employer was ordered to pay damages equivalent to ten months’ wages ($42,000), plus costs.

Brief Facts:

The employee, 67, was employed as a general labourer. He worked mostly in southern Ontario.

Early in 2015, he was arrested at work and charged with two counts of sexual assault allegedly against minors. The employer met with the employee the following day and questioned him about this, but the employee refused to discuss the criminal charges and would only say that the alleged events did not occur in the workplace and did not involve any other employees.

The employer asked him to resign, but he would not. However, he agreed to take a two-week leave of absence.

When he came back to work, he was asked to work at a different facility of the employer. A female employee at that other facility then expressed concerns about working closely with the employee. She told the employer that the employee in question was a distant relative and that she in the past had visited with him with her own family. The female employee also alleged that she stopped visiting him because he made inappropriate sexual comments and advances towards her.

As a result, the employer met again with the employee. They brought these concerns by the female employee to his attention directly, including the employer’s concern that this female employee may be involved in the criminal allegations. The employee would only confirm that no other employees were involved in the criminal charges.

The employer, without undertaking any further investigation, internally or otherwise, terminated the employee, for cause, and paid no severance to him. The employee sued for wrongful termination.

The Law:

According to this case, for off-duty conduct to constitute proper cause for termination, there must be a justifiable nexus or connection between the off-duty conduct and the employer or the nature of employment.

The Court also confirmed that the onus is on the employer to demonstrate, on a balance of probabilities, that, for example:

  • the misconduct of the employee injures or harms the employer’s reputation or product;
  • the employee’s behaviour renders the employee unable to perform his or her duties satisfactorily;
  • the employee’s behaviour leads to refusal, reluctance or inability of the other employees to work with him or her;
  • the employee has been guilty of a serious breach of the Criminal Code, which renders his or her conduct injurious to the general reputation of the employer and its employees; and
  • continuing to employ the employee will cause difficulty in the way the employer properly carries out the function of efficiently managing its work and efficiently directing its work force.

Applying these factors based on the evidence, the employer lost on the cause issue and had to pay, including because:

  • it did not, or would not, suffer reputational harm, because the employee was considered a general labourer, not an executive, supervisor, or manager
  • the employee remained capable of performing his duties, as indicated by the fact that the employer re-assigned him to perform his duties at another of its facilities initially
  • No other employees were involved in the criminal charges and, if the female employee was, in fact, hesitant to work closely to the employee at issue, that was for reasons unrelated to the criminal charges and, therefore, the employer had a duty to accommodate both, to the point of undue hardship
  • the employee remained innocent until proved guilty, at law, and should benefit from Ontario’s presumption of innocence before the criminal trial was held
  • the employer’s re-assignment of him, after his initial two-week leave of absence, indicated that the employer’s continued employment of him did not prejudice the employer’s ability to manage its work and workforce

Summary and Lessons:  

This case emphasizes that employers should always, before terminating for cause, conduct fulsome and proper workplace investigations, including when off-duty misconduct is the issue. A proper investigation involves seeking and obtaining any relevant statements and evidence, properly documenting the evidence and the investigatory steps taken and giving the employee in question a reasonable opportunity to respond to the allegations, or so-called ‘due process’. If this is not done prior to termination, the employer clearly faces the risk of cause not being upheld by the Court.

If a proper investigation is done, employers should assess if the off-duty conduct justifies termination for cause, based on the factors set out above, or what other disciplinary step(s) may be more appropriate at the time, as part of progressive discipline.

Employers should always ensure progressive discipline steps are taken, unless the circumstances are severe enough to justify otherwise, and they should always make sure any disciplinary steps taken are reasonable, principled and consistent with the employer’s policies, including any workplace codes of conduct and off-duty workplace policies.

Other options? If there is serious concern, but possibly risk in establishing a cause, the employer could consider terminating the employee due to off-duty misconduct, but not on a ‘for cause’ basis, by providing adequate notice or pay in lieu of notice, subject to ensuring that the discipline taken, including the termination, does not offend the protected grounds enumerated in the Ontario Human Rights Code (or the federal Code, if applicable).

Helpful Case:

Merritt v. Tigercat Industries, 2016 ONSC 1214 (CanLII) 

 

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SAFETY ISSUE AT WORK? WHAT YOU NEED TO KNOW.

Safety at work is a tricky subject for both employers and workers.  As either an worker or an employer, everyone has likely heard the golden rule that ‘workers have a right to refuse unsafe work.’  This is a legal right that workers across Ontario have and it is important to understand how this right under the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) plays out in terms of the responsibilities and obligations of all parties involved.

While easy to understand in concept, one of the primary concerns in the workplace is how do workers effectively raise safety complaints to their employers and what obligations do employers have with respect to it? On a day-to-day level the answer is not so simple, when faced with tight deadlines and busy workloads workers and employers may often treat safety issues as secondary.       

If a worker is faced with an unsafe work situation then they should issue a safety complaint as soon as possible.  This triggers an obligation on the employer to respond to that complaint.  Workers have a right to seek their rights under the OHSA free from reprisal from their employer.  Reprisal can take multiple forms, for instance: being improperly reprimanded,  a worker losing shifts or  in some cases a termination of employment. 

Correspondingly, the employer should respond to safety issues or complaints in a diligent and reasonable manner without reprisal against the worker.  While there is no specifically prescribed form of response for employers under the OHSA, employers are required by law to implement written workplace policies in respect of workplace safety and workplace harassment. 

Employers who have had these obligations triggered should seek to adjudicate these safety concerns in a diligent and efficient manner according to their workplace policies.  Employers seeking to discount, or worse, take action against these complaints will do so at their peril.

This was the case in a recent case at the Ontario Labour Relations Board.  An employee raised complaints with his employer about a particular task assigned to him and subsequently was terminated in the following weeks.  The Labour Board in that case found that the employer had not met their obligations to respond to a complaint under the OHSA and that the termination was a negative consequence connected to the safety complaint made by the employee.  As a result, the Board awarded damages against the Employer for: loss of earnings, value of the job lost, and pain and suffering. 

Cases like these are preventable if all parties in the workplace understand their rights and obligations under the OHSA.

At a fundamental level, every workplace should have safety in mind.  Employees should receive a solid understanding of what workplace policies are in place as well as knowing the designated personnel to speak to when seeking to raise health and safety concerns. Likewise, it is important for employers to have an effective health and safety policy and framework in place to diligently and efficiently process with health and safety issues in the workplace. 

Workplace safety and workplace harassment policies are required by law in Ontario.

The Case:

William Joseph Thorogood v. North 44 Property Management, 2018 ON LRB 82724 (CanLII)

Need an effective workplace health and safety policy? Contact us - let's get started. 

 

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23ANDME? GENETIC DISCRIMINATION - NEW PROTECTION FOR ONTARIO'S EMPLOYEES

Protection to employees in Ontario from “genetic discrimination” by employers has officially arrived.   

An increasing number of businesses offer individual genetic testing, which may, among other things, disclose a medical diagnosis or condition, that a person may have, or carry, a genetic mutation or irregularity or that a person may be at higher-than-normal risk for contracting a disease or other potentially disabling condition.

Of course, the concern is that information of this nature, if accessible by an employer, may cause, or contribute to, potential discrimination against a job candidate, or existing employee.  For example, could a person be passed over for an employment opportunity based on the employer knowing any of this information? Could an existing employee not be considered for promotion or advancement when, but for the employer knowing information of this nature, that might not have been the case?

The Ontario government is now taking steps to legislatively prohibit Ontario employers from discriminating against employees based on their genetic traits and characteristics. At the federal level, both the Canadian Human Rights Act and the Canada Labour Code have already been amended to prohibit, or minimize, this form of discrimination. Under the Canada Labour Code, for example, an employer cannot force an employee to take a genetic test, or disclose the result of any genetic-related testing. In Ontario, the prohibition is being developed to the Ontario Human Rights Code, which aims to be revised to add genetic characteristics as a further, prohibited ground of discrimination. With very limited exception, the proposed amendments will also expand every person’s right to equal treatment without discrimination in, for example, employment, including regarding that person’s genetic characteristics, being defined as the "genetic traits of an individual, including traits that may cause or increase the risk to develop a disorder or disease".

In the near future, it appears very likely that employees will be expressly and statutorily protected from discrimination by employers on the basis of “genetic characteristics”, including from being forced to undertake any form of genetic testing, or disclose the results of any such testing. 

Reference:

Bill 40, Human Rights Code Amendment Act (Genetic Characteristics), 2018

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WORKPLACE POLICIES - DON'T OPERATE WITHOUT THEM. WE'VE GOT YOU COVERED - AT A FIXED COST.

Employers:

Effective workplace policies are essential for both small and large businesses and organizations.  

WARDS LAWYERSPC offers employers a turn-key, comprehensive employment and HR management package, including a comprehensive suite of workplace policies (your “HR Package”), simplifying and minimizing your obligations while maximizing your time to focus on growing and developing your business or organization.

Really, it’s that simple. We give you everything you need, in a customized, organized package. You only need to follow the simple instructions. Compliance with Ontario’s employment law and a better workplace is only a meeting away. 

THE BENEFIT:

Among others, the benefits of having your comprehensive, properly-structured and customized HR Package include:

  • minimizing workplace-related disputes with your employees – your HR Package will bring certainty and govern;
  • fewer employment management tasks and more time to focus on the growth and development of your business or organization; 
  • more effective, efficient and optimized management of your employees;
  • enhancing employee morale and perceptions of your business or organization in your community;
  • compliance with the complicated, hard-to-follow myriad of law applicable to your employees and your workplace, including in the event of an inspection by a Ministry of Labour Enforcement Standards Officer;  
  • setting and establishing your employees’ expectations, including to minimize wasted managerial time dealing with matters that are addressed directly by your HR Package;  
  • better protecting your organization or business from manipulation by employees;
  • better protecting your organization or business from litigation claims and complaints to regulatory agencies, including because the Court now expects workplace policies to be established in the workplace and, if they are not, it often effects the outcome of a litigation dispute (often negatively for the employer);
  • ensuring that you avoid regulatory sanction for not having proper workplace policies in effect (i.e., spot audits by, or investigations by, the Ontario Ministry of Labour, for example); and 
  • giving you piece of mind that you are not only legally compliant with your employment obligations, but pro-actively organized and maximizing your effective management for the benefit of everyone in your workplace.

STEPS REQUIRED:

Simple:

  1. meet with us, so we can audit and evaluate your current practices and needs and obtain the information we may need to design, build and deliver your customized HR Package (which is included in your fixed cost for your HR Package);
  2. agree on a fixed cost for your HR Package, depending on your needs; and
  3. give us a brief period to deliver your HR Package to you, both digitally and in paper format.

WORKPLACE POLICIES IN YOUR HR PACKAGE:

Your HR Package will include a comprehensive suite of workplace policies, designed to optimize your workplace and employment management, including:

  1. a violence, harassment and sexual harassment prevention policy (required by law), including an annual compliance checklist, complaints procedure process and employee feedback system;
  2. a health and safety policy (required by law)
  3. a discrimination and diversity policy
  4. a personal information protection policy
  5. an accommodation on the basis of disability policy (required by law)
  6. an Accessibility for Ontarians with Disabilities Act, 2005, (the “AODA”) – Customer Service and Standards policy (required by law)
  7. an AODA – Employment Standards policy (required by law)
  8. an AODA – Integrated Accessibility and Information and Communications Standards policy (required by law)
  9. a personal communications in the workplace policy
  10. a social medial policy
  11. a smoking and vaping policy
  12. a cannabis in the workplace policy (including for the use of medical cannabis)
  13. a computer, email and Internet use policy
  14. an absenteeism policy
  15. a conflict of interest policy
  16. a mental health first aid officer policy and workplace wellness program
  17. a conduct and behaviour policy
  18. a holiday policy
  19. an overtime policy
  20. a vacation and vacation pay policy
  21. an employment expense reimbursement policy
  22. a joint health and safety committee policy (for employers with twenty or more employees)
  23. a privacy breach protocol and policy (required by law)
  24. an administrative leaves and suspensions policy  
  25. an employer references policy
  26. a deemed legal compliance policy
  27. a police records check policy (per the new legislation, effective November 1, 2018)  

Your HR Package will assist you to establish effective policies to not only comply with, but exceed your obligations under, the AODA, and to improve your protection against claims by employees under human rights legislation, like the (Ontario) Human Rights Code (the “Code”), such as the right to a harassment-free workplace, gender and other discrimination-based complaints and workplace equality.

ADDITIONAL TOOLS IN YOUR HR PACKAGE:

Beyond your suite of workplace policies, your HR Package will include additional tools to help you successfully implement and enforce your policies, such as:

  • a corporate resolution by your organization or business to adopt and implement your HR Package, to ensure you lawfully and effectively do so
  • acknowledgements to be signed by your employees for their acceptance of your workplace policies and agreement to comply with them
  • workplace harassment complaint and investigation forms, so if a complaint is made, you have everything you need on hand ensuring a timely and proper response by you to any complaint
  • risk assessment forms and checklists for your workplace, to audit, assess and address your risk factors

CONFIDENTIALITY, PROPERTY AND TECHNOLOGY PROTECTION:

Your HR Package will also include a comprehensive confidentiality and proprietary property agreement for all your existing and new employees to sign, including to protect your business’s or organization’s information, property, technology and operating methods.

USING EMPLOYEES’ INFORMATION TO PROMOTE AND MARKET:

Your HR Package will also include a special form to be signed by your employees enabling you to use their image and likeness to successfully promote and market your business or organization, including protection for your third-party marketing partners and contractors.

MANDATORY WORKPLACE POSTINGS AND NOTICES:

Your HR package will also contain a table, entitled: “Important (Mandatory) Postings and Notices in Your Workplace”, which identifies important and legally required posters, postings and other notices you should promptly post in your workplace.

Often, if you experience a spot audit or investigation by a regulatory authority, such as an Employment Standards Officer from the Ministry of Labour or, if an incident or accident occurs, the regulatory authority will initially investigate if you have your mandatory postings. It is, therefore, very important you have at least the mandatory postings in your workplace.

These required postings primarily relate to Ontario’s law regarding occupational health and safety, employment standards, workplace safety and insurance, accessibility for those with disabilities, smoke-and-vape-free workplaces and pay equity, if necessary. Specifically, these postings are required by, and will ensure you comply with, Ontario’s posting requirements under the:

-       Employment Standards Act, 2000, S.O. 2000, c. 41;

-       Occupational Health and Safety Act, R.S.O. 1990, c. O.1; 

-       Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched A; 

-       Smoke-Free Ontario Act, 2017, S.O. 2017, c. 26, Sched. 3;

-       Workplace Hazardous Materials Information System (Canada);

  • Labour Relations Act, 1995, S.O 1995, c.1, Shed. A, as amended; and

-       other legislation and regulations that may apply to your workplace.  

In addition, we provide you a link at which you can access these posters, postings and other notices directly online, free of charge to you.

Finally, we identify how you should assess your compliance with both the:

-       Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11; and

-       the Pay Equity Act, R.S.O. 1990, c. P. 7,  

including providing you links to the online references you will need to do so. 

HIRING AND RECRUITING GUIDANCE:

Your HR package will also contain “The Hiring Process – Do’s and Don’ts”, which will offer you assistance, direction and guidance with respect to your hiring and recruiting practices in future, particularly when you conduct interviews with potential new employees.

PRE-TERMINATION CHECKLIST:

Your HR package will also contain a “Pre-Termination Checklist”, which will offer you assistance, direction and guidance with respect to your decision-making about terminating any employee in future, including identifying for you the issues you may need to address and your potential obligations arising from the termination.

CHECKLIST – THE TERMINATION MEETING:

We will also provide to you a “Checklist – The Termination Meeting”, which will assist you for planning and preparing for a meeting to terminate an employee and help you identify issues you may need to address and your potential obligations arising from the termination.

STEP-BY-STEP PLAN:

We will provide to you a detailed, step-by-step plan and procedure for your implementation of your HR Package, particularly your new suite of comprehensive workplace policies, including specific language for your written communications with your employees for this process, ensuring that they must comply with your new policies.

AODA AND HUMAN RIGHTS CODE TRAINING AND EDUCATION:

We will also provide you, as part of your HR Package, information, guidance and tips to arrange for training and educating your employees under both the AODA and the Code, particularly regarding accommodation and discrimination.

There are excellent, efficient and free-of-charge services available to you to do so, including computer modules to minimize disruption to work time. This should be undertaken to improve your workplace, perception of your business or organization and to minimize potential exposure if any claims were made in future.

WORKPLACE HEALTH AND SAFETY TRAINING:

In addition to the AODA and Code education and training, your HR Package will also include information and tips to assist you to train and educate your employees about workplace health and safety. There are excellent module-based, desktop training and education programs available, which are very accessible, free-of-charge.

NO SMOKING AND VAPING SIGNS:

As required by Ontario law and to accompany your new smoking, vaping and cannabis policies, your HR Package will guide and assist you to access and obtain the mandatory signs you must post in the workplace, free of charge.  

DELIVERY OF YOUR HR PACKAGE:

We will deliver to you both:

  • a compact, highly organized digital version of your HR Package, including your suite of workplace policies, which you would retain digitally and be able to share with your employees; and
  • a hard copy of your HR Package, some of which, including your suite of workplace policies, you would make available in your workplace, including for employees to view and reference in future.

FIXED COST:

Your HR Package is available for a pre-arranged, fixed cost. No hourly rate, no surprises. We would discuss the fixed cost with you after we initially audit and evaluate your workplace’s existing compliance and employment-related needs. The expense for your HR Package is very reasonable, when you consider the potential alternative – very high legal expenses and exposure to liability arising from employee-related claims arising due to a failure to comply with the law.

TIMING:

Following our initial meeting with you, usually we need between three-to-five weeks to prepare and deliver your HR Package to you.

ONGOING SUPPORT:

WARDS LAWYERSPC focusses on employment law – we are a leader in this area of law in Central Ontario.

We are available to assist you not only with using your HR Package in future, but any employment-based needs or services you may need. We will discuss and work with you to design and deliver to you an ongoing employment support service, based on our hourly rates and the appropriate lawyers available to assist you, depending on your needs.  

NEXT STEP:

Smart, progressive employers in Ontario are establishing and implementing proper workplace policies. You should, too.

Let’s get started. 

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TERMINATING OLDER, LONG-SERVICE EMPLOYEES - EMPLOYERS ARE NOW BEING PUNISHED BY THE COURTS FOR "FORCED RETIREMENT" TERMINATIONS

There is an emerging trend in Ontario employment law – Courts are giving increasingly more reasonable notice, or pay in lieu, to advanced age, longer-service employees.

If an employment contract does not contain an enforceable termination provision limiting the terminated employee’s notice to the statutory minimums set out by the Employment Standards Act, 2000, the employee dismissed without cause will be entitled to “reasonable notice” of termination at common law. Historically, the limit for reasonable notice given by Ontario Courts has been twenty-four months – that is now changing, particularly for older, longer-service employees.

In a recent case, a 62-year-old senior VP, who had worked for the employer for 37 years, was granted 30 months’ reasonable notice, but the Court noted it would have awarded even more, if that had been requested by the employee. The Court noted “a change in society’s attitude regarding retirement” and that “presumptive standards no longer apply”, including because many people now work beyond the age of 65.

In another recent case, the Court granted 24 months’ notice to a 60-year-old office manager, who had been employed for 12 years before being summarily terminated. In doing so, the Court noted the employee’s age (close to retirement), loyalty and dedication during his employ, and his lack of formal education and training to utilize to find alternative, comparable employment.

As a result, “forced retirement” terminations by employers are both on the rise and increasingly challenged by the Court, so much so that very significant damage awards are trending upwards.

The Cases:

Dawe v. Equitable Life Insurance Company, 2018 ONSC 3130 (CanLII)

Saikaly v. Akman Construction Ltd., 2019 ONSC 799 (CanLII)

 

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TERMINATING AN EMPLOYEE? BE CAREFUL. HERE'S A PRE-TERMINATION CHECKLIST

Terminating an employment relationship should not be decided without planning and consideration of potential obligations (and liability).

Liability for reasonable notice, or pay in lieu of notice, must be considered. 

Before you decide to terminate an employee, below is a checklist that will be helpful to review before a decision to terminate is made.

This checklist will also help identify what potential obligations may be owing by you to the terminated employee.   

1.  Review the employee's letter of employment or employment agreement. Is there an enforceable clause for minimum notice under the Employment Standards Act, 2000? Is there a valid “for cause” termination clause?

2.   Review the circumstances of the employee's hire. Was the employee recruited?

3.   Review significant changes in relation to the employee's position, role, salary, location, or other material terms of employment to determine if the substratum of the employment relationship has been amended or varied materially and, therefore, whether the employment agreement potentially no longer reflects current terms.

4.   Determine the termination date and calculate, if possible, what is owing to the employee for all accrued remuneration to that date, including salary, vacation pay, commission, incentives and bonus, if any.

5.   Is the termination for “just cause” due to misconduct? If so, is there adequate documentary records of past issues and warnings? Have the relevant individuals been interviewed, and is there a record of those interviews? Has the individual been given an opportunity to respond and answer to any issues and allegations? Is the higher standard of “wilful misconduct” under the Employment Standards Act, 2000 triggered?

6.   Compile all relevant codes of conduct or policies applicable to the termination and ensure that you have complied with your own policies. In addition, where applicable, ensure that you have evidence that the employee was aware of the policies.

7.   If the termination is for performance reasons, is there enough documentation to establish: (a) lack of performance; (b) progressive warnings related to failure or refusal to maintain performance at reasonable and objective standards; and (c) the consequences of failing to do so?

8.   Are there related medical or disability issues that need to be considered and accommodated?

9.   Are there other human rights or statutorily-protected employment rights that need to be addressed (for example, return to work following maternity, parental, WSIB or emergency leaves)?

10. If the termination is not for just cause, what is the period of notice of termination required by agreement, by statute or implied by common law?

11. Will the notice period be worked by the employee in whole or part? If payment is to be made in lieu of notice of termination, will remuneration be continued or paid out? Calculate the statutory termination and severance pay, if applicable. Calculate the offered common law notice pay in lieu (or salary continuance), if any. Verify if the employee has any accrued, but unpaid, vacation pay up to the proposed date of termination, including pro-rated. 

12. Consider any statutory and contractual obligation(s) to continue benefits during notice periods and any conditions or exceptions to such obligations.

13. Will the termination offer be made subject to mitigation or not subject to mitigation by the departing employee?

14. Review the target employee’s specific compensation terms and entitlements in the twelve weeks prior to the proposed termination date, at least. Are there any specific requirements related to pensions, RRSPs, LTIPs, stock options, etc.?

15. Are there any outstanding loans or advances to the employee?

16. Are there company supplies, documents, confidential information, computers, keys, FOBs, credit cards, automobiles, equipment or other property to be returned by employee?

17. Are there employee obligations post-termination, including solicitation of customers or non-competition?

18. Are there client or competitor lists that need to be identified with reference to non-competition provisions?

19. Determine appropriate timing for the meeting to provide notice of termination. Consider who should attend at that meeting. Is any security necessary?

20. Consider issues relating to employment references and/or providing a confirmation of employment letter. Who will be responsible for post-termination employment references?

21. Did the employee sign a confidentiality agreement and, if so, should that be confirmed, including any specific duty or reference to any specific confidential information?

Careful review and planning must be undertaken before any employee is terminated. Alternatively, a costly mistake may be made. 

_________________________________

This is summary only, intended to be for your general information only.

We strongly recommend that you contact us, or other qualified, employment law counsel, for specific advice that may apply to, or be helpful for, any:

  • termination of any employee, with or without cause;
  • suspension of any employee, with or without pay; 
  • workplace harassment/sexual harassment complaint; and 
  • workplace investigation of any kind,

before you initiate or take any steps, including to avoid a potentially costly misstep. 

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DO YOU KNOW ABOUT THE "THREE-HOUR RULE" AT WORK? YOU SHOULD.

Ontario’s Employment Standards Act, 2000, SO 2000, c. 41, governs most employees’ basic, statutory rights and entitlements for employment.

Part VII.1 (section 21.2) contains the so-called “three-hour rule”.

Pursuant to the three-hour rule, subject to a few exceptions, if you regularly work more than three hours in your work day, but on any given day you are required to attend work, but not given the opportunity to work at least three hours, despite that you are available to do so, you are entitled to be paid your wages for three hours of work, even though you were not permitted to work that minimum time.

Usually you will be entitled to your regular wages for this top-up under the rule. 

However, the rule may not be triggered if your employer cannot offer you work on that day for this minimum period due to circumstances beyond your employer’s reasonable control, such as lightning, power failure, fire, storms and other types of circumstances legitimately preventing your employer from employing you that day for this minimum period of time. 

Similarly, you may not be protected by the three-hour rule if you ordinarily work a regular shift of three hours or less, or if you are employed as a student in certain positions, like a children’s camp, a program focused on children or in a charity-based position. 

So, if you show up for work, but are told you can only work one or two hours, when you ordinarily work more in your usual work day, you might consider invoking the three-hour rule for a top-up.  

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BACKGROUND CHECKS ON EMPLOYEES - IT AIN'T SO EASY ANYMORE - THE NEW DEAL

Background checks of potential employees and volunteers has always been an important recruiting and screening tool for potential employers.

Ontario has overhauled its legislation, effective November 1, 2018. Now, the Ontario government has applied uniform, standardized checks available and the information that can be obtained. No more discretionary decisions by the local police service. Everybody now follows the same rules.

Firstly, now an employer can only request a potential employee to provide a “police record check” if the employee consents. If that consent is given, the information may only be disclosed initially by the police service to the potential employee whose background is searched. Only if the employee consents, after receiving and reviewing the results, may the police service give the information to a third party, such as a potential employer.

Accordingly, hiring employers can no longer obtain the background search results directly from the police service, even if the potential employee consents.

If, for example, an employer offer contains a condition for a background check, the employee candidate must: (a) consent; and (b) obtain and review the check results directly and, after doing so, deliver those directly to the employer. 

Secondly, there are now three, specific kinds of checks available:

[1]        Criminal Record Check:

The basic one, giving the least amount of information; namely: 

  • criminal convictions that have not been pardoned; and

  • findings of guilt under the federal Youth Criminal Justice Act, but these records may only disclosed entirely separately and cannot be disclosed to a potential employer, unless expressly permitted by the Youth Criminal Justice Act (which is very restrictive and does not help most employers in Ontario).

 

[2]        Criminal Record and Judicial Matters Check:

This check gives the information available from a criminal record check, but also access to:

  • criminal convictions, where an absolute discharge was granted, if the request is made less than one year after the absolute discharge;

  • criminal convictions, where a conditional discharge was granted on conditions in a probation order (if the request is made less than three years after the conditional discharge);

  • every outstanding charge or arrest warrant for a criminal offence; and

  • every court order made against the individual, with certain exceptions.

This check is the most common for employers to request when hiring a new employee. 

[3]        Vulnerable Sector Check:

The most robust yield of information, but the most restricted check. It can only be requested, effectively, for people with access to vulnerable persons, being anyone whose age, disability or other circumstances makes them dependent on others, or at a greater risk of being harmed by a person in a position of trust or authority.

The additional information from this check includes:

  • every criminal conviction, where a finding of not criminally responsible on account of mental disorder was made (if the request is made less than five years after the date of the finding or absolute discharge); and

  • any non-conviction information authorised for exceptional disclosure in accordance with the act – a very high test.

For exception disclosure, it only applies to offences:

  • are defined by the specified offences regulation;

  • for which the alleged victim was a child or vulnerable person; and

  • when the police record check provider has reasonable grounds to believe that the person subject to the check has been engaged in a pattern of predation indicating that the person presents a risk of harm to a child or a vulnerable person, based on:

  • whether the person appears to have targeted a child or a vulnerable person;

  • whether the person’s behaviour was repeated and was directed to more than one child or vulnerable person;

  • when the incident or behaviour occurred;

  • the number of incidents; and

  • the reason the incident or behaviour did not lead to a conviction.

Legislation:

Police Record Checks Reform Act, 2015, SO 2015, c. 30 (effective Nov. 1, 2018).

Need an effective workplace policy for background checks and procedures?

Call me. Let’s get started.

 

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DON'T USE AN ONLINE APP TO CALCULATE YOUR SEVERANCE PAY - YOU MAY BE LEAVING MONEY ON THE TABLE

In Ontario, a wrongfully dismissed employee with no employment contract specifying severance entitlement is entitled to damages at common law. These damages are commonly calculated based on a reasonable notice period and pay in lieu of not being provided that reasonable notice of termination. Dismissed employees also have a duty to make reasonable efforts to seek and obtain similar employment to offset these damages (i.e., a duty to mitigate).

The seminal case in Ontario, Bardal v. The Globe & Mail Ltd., establishes the basic test to determine an appropriate notice period for an employee who has been terminated without cause.  The Bardal test effectively requires the Court to undertake a very contextual analysis of the case, with special attention to certain factors, including the character of employment, length of service, age and availability of similar positions. These factors are generally examined on a case-by-case basis and they are weighted in each, specific case by the Court to calculate a reasonable notice period. Employers may also be forced to pay more damages if the manner of dismissal was unfair or in bad faith.

Many employers, employees and even some lawyers are confused by, or do not fully understand, the factors that are to be applied to determine a reasonable notice period and, therefore, how to calculate a dismissed employee’s potential severance pay. 

Some lawyers may refer to the ‘one month per year of service’ approach – this is incorrect and not the law in Ontario. In fact, there is no cookie-cutter, mathematical formula to calculate severance pay; rather, these several factors must be examined contextually in each case and weighted based on their importance in the specific case.

DURATION OF EMPLOYMENT:

Length of service is only one factor to consider. While generally, the longer the length of service, the longer the reasonable notice period will be, this is not true in every case. Employees terminated after a relatively short period of employment may be entitled to a comparably longer notice period and, therefore, disproportionately more severance pay, depending on the other factors in the case. 

Duration of employment, on its own, should not determine severance pay entitlement – it is a factor only, albeit a potentially important one in the case.

AGE:

Generally speaking, older employees are entitled to more reasonable notice and, as a result, more severance pay. This is so to reflect the increased challenges older employees are likely to face in re-entering the workforce verses their younger counterparts.

However, again, age is not determinative of reasonable notice and younger employees should not assume they have no entitlement to severance pay – that is very likely not the case.

NATURE AND TYPE OF POSITION HELD:

Historically senior, managerial, supervisory or employees with specialized skills, training or responsibilities are likely entitled to more reasonable notice. However, a trend is emerging in Ontario to focus less on the position held on termination in favour of paying more attention to the availability of comparable opportunity to the employee and any challenges the employee may face in securing that alternative employment.

In any event, it is still the case in Ontario that an employee with more responsibility is generally entitled to more severance pay – it remains an important factor to consider. 

OTHER FACTORS:

In addition to the Bardal factors for calculating severance pay, other factors may also arise to amplify reasonable notice entitlement depending on the specific case, such as:

  • if the employee was effectively lured away from an existing position, recruited or induced to accept employment with the terminating employer;

  • if the employee is faced with non-competition, non-solicitation or other limitations or restrictions on his or her ability to find suitable, alternative employment (which typically arise in an employment contract);

  • if the employee suffers from a physical, emotional or mental health-related disability or condition, or has special family status obligations, for example, creating special challenges for the employee to mitigate his or her termination and resulting severance pay; and/or

  • if the employer alleges cause for the termination, refuses to provide a reference, or otherwise alleges justification for terminating the employee, making it more difficult for the employee to find alternative employment.

THERE’S NO APP FOR THAT:

Severance pay tools, apps and calculators are increasingly appearing online, sometimes by providers located outside of Ontario.  

However, there is no specific formula available to calculate severance pay entitlement – every case will be different, based on the specific circumstances of that case. Generally, lawyers and the Court will consider awards in other, possibly similar cases, but no two cases are ever the very same.

Terminated employees should, therefore, be wary of relying on online tools to calculate entitlement to reasonable notice damages and severance pay. Truly, the best and most reliable way to determine your potential entitlements if you are wrongfully terminated is to speak to a qualified, experienced employment law lawyer.

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OVERTIME PAY - SHOULD I MAKE A CLAIM? WHAT WILL I GET? EMPLOYERS - PROTECT YOURSELVES!

Overtime pay in Ontario is governed by Part VIII of the Employment Standards Act, 2000 (the “ESA”).

In a nutshell………

Many employees in Ontario are entitled to overtime pay. For most employees, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers, overtime begins after they have worked 44 hours in a work week. Their hours after 44 must be paid at the overtime pay rate. Overtime pay is 1½ times the employee's regular rate of pay (often called "time and a half”). Unless An employment agreement or collective bargaining agreement provides otherwise, an employee does not earn overtime pay on a daily basis by working more than a set number of hours per day. Overtime is calculated only: on a weekly basis; or over a longer period under an “averaging agreement”.

However, there are some exceptions. Some employees have jobs that are exempt from overtime pay under the ESA. Others may work in jobs where the overtime threshold is more than 44 hours in a work week. For example: EMS, healthcare and health professionals; manufacturing, construction and mining; hospitality services and sales; transportation; agriculture, growing, breeding, keeping and fishing; household, landscaping and residential building services; government employees and professionals. More information about exemption from overtime pay can be found at: www.ontario.ca/document/your-guide-employment-standards-act/overtime-pay.

In addition, managers and supervisors do not qualify for overtime if the work they do is managerial or supervisory. Even if they perform other types of tasks that are not managerial or supervisory, they are not entitled to get overtime pay if these tasks are performed only on an irregular, or exceptional, basis.

Furthermore, employers may be permitted to have written overtime averaging agreements with their employees. If so, they agree to average the employees’ hours of work over a period of two or more weeks to calculate overtime pay – effectively, employees would only qualify for overtime pay if their average hours worked per week during the averaging period exceed 44 hours. For non-union shops, averaging agreements must terminate two years after made. Any averaging agreement must be approved by the Ministry of Labour and, if so, the agreement cannot be revoked before the termination date, unless otherwise agreed. This Ministry approval requirement may change in the near future, however.

In Ontario, there have been several class action lawsuits dealing with alleged non-payment of overtime pay by (large scale) employers, leading to very significant out-of-Court settlements or damage awards against employers. For example:

Fulawka v Bank of Nova Scotia, 2016 ONSC 1576 (CanLII)

Rosen v BMO Nesbitt Burns Inc., 2016 ONSC 4752 (CanLII)

Eklund v. Goodlife Fitness Centres Inc., 2018 ONSC 4146 (CanLII)

Aps v. Flight Centre Travel Group (Canada) Inc., Court File No.: CV-19-00614755-00CP (recently initiated; unresolved)

EMPLOYERS – PROTECT YOURSELVES:

Therefore, employers who do not take adequate precautions may be exposed to claims by non-exempt employees for unpaid overtime pay. To minimize this risk, employers should:

  • ensure they have an adequate system to track, monitor and compensate employees for actual hours worked;

  • classify properly all employees (i.e., exempt, non-exempt, managerial, supervisory), including to avoid potential retroactive exposure;  

  • effectively monitor, track and record the hours worked by non-exempt employees, particularly overtime hours;

  • develop tracking systems, or use a third party service provider experienced in this area;

  • require that overtime be approved before it is worked;

  • ensure they have a clear procedure for approving overtime before it is worked and that this is properly recorded at the time

  • implement a clearly-written workplace policy for overtime pay, specifying clearly, for example, that: overtime must be pre-approved; when and for what purpose overtime may be worked; and who is authorized to approve overtime; and

  • negotiate with employees to enter averaging agreements, rather than attempt to unilaterally impose those on the employees, particularly at the time of hiring.

It unclear how far back a non-exempt employee could claim for unpaid overtime pay. The prevailing wisdom appears to be the standard two-year limitation period in Ontario, but that has yet to be tested fully by the Courts for every case.

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I RESIGNED - CAN I TAKE IT BACK? TIPS TO EMPLOYERS FOR RESIGNATIONS

An employee who resigns, verbally or in writing, may ask to ‘take back’ his or her resignation. This creates an issue for the employer, of course, particularly if the resignation is a welcomed outcome to the relationship. Ontario law says that an employer may be obliged to allow an employee to withdraw or retract a resignation depending on the circumstances.

Below are the key considerations for when an employee resigns and whether that employee will be held to be bound by his or her own act: 

Is the Resignation Valid (At Law)?

Firstly, the Court will consider if the resignation is properly given and valid.

Generally, when considering whether a resignation is validly made by an employee, the Court will consider whether, in all of the circumstances and the context in which it is given, would a reasonable person have objectively concluded at the time that the employee both intended and meant to resign? In other words, the legal test is, effectively, whether the employee really meant to resign in all of the circumstances.

To be valid, a resignation must be clear, unambiguous and not shrouded in complaints, concerns or conditions by the employee. Preferably resignations will be in writing, but they can also be established by conduct of the employee clearly demonstrating intent to quit or resign at the time. For example, the employee may verbally quit, then immediately leave the workplace taking his or her personal belongings, or otherwise demonstrating intent to leave and not return. 

So, is it a clear and unambiguous resignation? If given verbally, this may be problematic, of course. If it is in writing, does it clearly verify the employee is resigning, without also suggesting he or she is doing so because of mistreatment, pressure, stress or related in any way to alleged discrimination or breach of a protected ground under the Ontario Human Rights Code, for example?

If the resignation could potentially be considered by a third party, objectively, as merely expressing dissatisfaction, or as merely a threat to resign or an offer to resign if asked to do so, it may not qualify or be enough to be held as a valid resignation. If it is truly an offer to resign only, it could be revoked by the employee at law, even if it is accepted by the employer. Therefore, the resignation must be straightforward, clear, not subject to any conditions and not ostensibly embroiled with or attached to complaints or concerns by the employee at the time. 

What’s more, if there is evidence of a ‘heat-of-the-moment’, reactionary decision, or of duress or other emotionally charged decision-making at the time, the Court may not hold the employee to the resignation.

Timing can also be a key factor. If the employee resigns, particularly in emotional or ‘heat-of-the-moment’ circumstances, but reasonably soon afterwards attempts to withdraw that decision, the Court is more likely to find the resignation invalid. Generally, the longer the time period between the resignation and the withdrawal, the more likely it will be that the Court upholds the initial resignation.

Should the Employer Respond to the Resignation?

Employers’ responses to resignations can be important. 

If the employer believes the resignation is valid, or potentially valid, employers should provide the resigning employee with a written acceptance of the resignation. If an employer takes other steps, such as suggesting a meeting be arranged, or contacting the employee afterwards about the resignation or work-related discussions, they may be found by the Court to have engaged in conduct inconsistent with an acceptance of the resignation (i.e., potentially to encourage the employee to return to work, for example), which may invalidate an otherwise valid resignation on its face, particularly if the employee attempts to withdraw or retract the initial resignation.

Employers should also consider, before accepting the resignation in writing, if there are any circumstances or factors known to the employer that potentially could have influenced or caused the employee to resign, particularly related to the employee’s mental health, family circumstances, other sources of pressure in his or her life, or other circumstances that may have created unusual or undue stress or turmoil in the employee’s life. If so, the employer may have a duty to enquire about these with the employee before accepting the resignation, or before the resignation could be considered valid and final by the employer. If any of these factors may exist, the employer may need to consider offering assistance to the employee, such as a temporary absence from work, EAP benefits, if available, or other support services available in the workplace. 

Cooling-Off’ Period:

In 2014, the Supreme Court of Canada established the duty of good faith in contractual dealings and created a new general duty of honesty in contractual performance. That decision has found its way into employment law, too. As a result, the Court in Ontario will likely require employers to provide an employee with a “cooling-off period” to reconsider the employee’s resignation decision. Therefore, it is likely advisable for employers to offer this ‘cooling-off’ period and, if they do not, they may find themselves facing an additional claim for failure to abide by this new duty of honesty and good faith in performing employment arrangements.

However, cooling-off periods can be advantageous to employers, too. 

For example, if an employee gives an ultimatum that the employee will resign if his or her conditions are not accepted by the employer, the employer should consider establishing a ‘cooling-off’ period, in writing, in response. If, after that period, the employee does not withdraw the ultimatum, it is more likely that the employer, if a written acceptance of the resignation is given to the employee at that expiry of the cooling-off period, will be able to establish that the employee validly resigned. If the ultimatum was clear and unambiguous and a sufficiently reasonable cooling-off period was given the employee, the employer is more likely to be successful in defending off a wrongful termination claim by the employee by establishing that a valid resignation was given and accepted. 

Requirement to Accept a Withdrawal:

Generally, if the employee merely offers to resign, or if a resignation is not valid, employers should allow the employee to withdraw the offer (or invalid resignation), if the employee requests to do so reasonably soon afterwards, even if it was accepted by the employer when initially given.

If, however, the employer could demonstrate that they relied on the invalid resignation to their detriment, they may be able to successfully establish that they had no obligation to allow the employee to retract or rescind. For example, if the employer already hired a replacement, incurring time and expense to do so, the employer may be able to establish detrimental reliance sufficient to refuse the employee to rescind the resignation.

Five Best Practice Tips for Employers:

Employers should consider:

1. giving a ‘cooling-off’ period to an employee who resigns, or purports to resign, especially if there may be special circumstances, such as potential mental health-related issues, family issues or other potential sources of undue stress or pressure affecting the employee at the time;

2. requesting that resignations be given only in writing, if possible; 

3. respond to resignations (in writing, ideally) with written acceptances, but only after considering if any special factors exist or may be known by the employer that potentially may have unduly influenced the employee’s decision to resign (including potential mental health-related issues);

4. avoiding any steps after receiving the resignation that may be viewed as non-acceptance of the resignation, like calling a meeting or telephoning the employee afterwards (or engaging in any verbal discussions with the employee); and 

5. allowing an employee, if requested, to withdraw or retract a resignation, subject to further considering: a) the time that passed between the resignation and request to retract; b) any special circumstances regarding the employee; c) whether ‘detrimental reliance’ steps were already undertaken by the employer; and d) whether the resignation was accepted in writing previously.

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POT AT WORK - MAY BE LEGAL, BUT STILL NOT ALLOWED - EMPLOYERS' RIGHTS

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using pot recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical cannabis creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical cannabis, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during break time and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

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WORKPLACE HARASSMENT - WHAT YOU NEED TO KNOW

Ontario’s Occupational Health and Safety Act imposes important obligations on employers regarding workplace (sexual) harassment. They are designed to enforce proactive measures for all workplaces in Ontario – compliance is now being audited by Ontario’s Ministry of Labour. Non-compliance can mean significant fines, penalties and potential civil liability.

Employers in Ontario must:

  • make and prominently (conspicuously) post in the common area(s) of the workplace a new (or revised) workplace harassment policy, compliant with these new changes – it is mandatory; obtain the assistance of a qualified employment lawyer or, if that is not possible, at least refer to the Ontario Ministry of Labour’s “Code of Practice” for guidance and assistance, if necessary;
  • incorporate the definition of workplace sexual harassment in the mandatory workplace policy: “Workplace sexual harassment” is defined as:

(a) engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known, or ought reasonably to be known, to be unwelcome; and/or

(b) making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows, or ought reasonably to know, that the solicitation or advance is unwelcome.

  • establish and implement a joint health and safety committee in your workplace (particularly for workplaces having twenty or more workers) and liaise with the committee’s health and safety representative(s) to develop (or update) a written program or plan to implement the mandatory workplace harassment policy (a “Program”);
  • take care to ensure the Program complies with the law, including:

-     measures and procedures for reporting incidents of workplace harassment: (a) to the employer or supervisor; and (b) to a person other than the employer or supervisor, if the employer or supervisor is the alleged harasser (such as an alternative procedure for employees to report directly to a human resource representative);

-     alternative reporting options to a person who is not subject to the direct control of the alleged harasser if the incident or complaint involves the employer (such as an owner, senior representative, upper manager, director, etc.), which may include third party, so-called “whistleblowing” services, if necessary, and ensure contact information is provided in the Program;

-     explain fully how incidents or complaints of workplace harassment will be investigated and addressed;

-     explain how information acquired regarding an incident or complaint of workplace harassment will be kept confidential, unless disclosure is necessary for the purposes of the investigation or required by law;

-     explain how a complainant and respondent, if a co-employee, will be informed of the results of the investigation and any corrective action or measures taken; and

-     affirm that a written report (summary) of the results of the investigation and any corrective action taken will be provided;

  • train all workers, including managerial employees, about the mandatory policy and the Program and they acknowledge the training, in writing;  
  • tickler for at least annual review of the mandatory policy and Program and keep good records for the review(s);
  • investigate all incidents and complaints of workplace harassment (fairly and completely);
  • retain a third party, professional investigator or, at least, ensure any internal investigator is properly trained for investigating complaints and workplace harassment generally;
  • only utilize an investigator who is, and who will be perceived as, competent and impartial;
  • make every effort to complete the investigation and release the summary report within ninety days of the initial incident or complaint; and
  • be prepared for the Ministry of Labour to order a third party investigator at the employer’s expense, particularly if the employer does not act properly in appointing its own investigator, internal or external. 

Need an effective workplace harassment and violence policy? It's the law. 

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HARD LABOUR - REFERENCES BY FORMER EMPLOYERS - THEY CAN BE HONEST

HARD LABOUR – BY JASON WARD AND WARDS LAWYERSPC

REFERENCES BY FORMER EMPLOYERS – THEY CAN BE HONEST:

Employers may be wary of giving references for current or former employees, particularly if they were dismissed by the employer. There is no legal obligation for an employer to give an employment reference, unless there is an agreement to do so.

However, there are cases in Ontario whereby disgruntled, former employees have sued former employers for defamation, alleging the employers’ negative reference was defamatory and caused, or contributed to, their inability to secure alternative employer.

However, it is now clear that employers’ references, even if negative, are protected from liability for defamation, provided they are made “without malice”. This applies to both current and former employees.   

As a result, employers can now feel more assured if, in the circumstances, a less-than-positive reference is given. Many employers desire to be honest, but have been nervous about informing a potentially successor employer about a candidate’s character, work performance, lack of motivation or other sub-standard characteristics.

In defamation law, the truth shall set you free – this has always been the law in Ontario. Now, in addition to the truth defence, employer references are protected by the defence of “qualified privilege”, provided the employer does not act maliciously, but rather honestly, even if the reference may not be proved as the truth.

Generally, malice need not be proven directly, but can be inferred based on the specific words of the referee employer. It may also be established by evidence about the employer’s alternative, or even ulterior, motivation, if any. In addition, comments that are made without care or proper regard to their truth may also disqualify the “qualified privileged” defence.

So, while employers need to be smart and cautious, they can express honestly-held opinions about an employee and be protected by law, conditional on not acting maliciously.

To be vigilant against the risk of claims of malice when employment references are given, a few tips to employers:

  1. make your comments in a professional, respectful manner;
  2. use balanced, moderate language and tone;
  3. attempt to justify any negative comments by reference to a document, or based on the referee’s first-hand experience with the employee;
  4. take a balanced approach – mention any positive aspects of the employee, too, if possible; 
  5. take notes after the exercise to record, as precisely as possible, what specifically was communicated to the potential employer; and
  6. be mindful of any contextual issues or historical circumstances regarding the employee that could potentially be construed to suggest that the referee employer, or another person associated with the referee employer, may be motivated by revenge, a desire to punish the employer or otherwise act in a manner intended to cause harm to the employee.

Given this new development, employers should feel more comfortable with offering employment references, rather than avoiding them simply to avoid potential liability. If everyone did that, it may entirely make unavailable an important, useful part of the hiring and recruitment process, which serves no one’s interests.

Case:

Kanak v. Riggin, 2017 ONSC 2837 (CanLII), 2018 ONCA 345 (CanLII) and Tracey Kanack v. Darryl Riggin, 2019 CanLII 1628 (SCC) (leave to appeal denied).

Need an effective workplace policy for giving references for current or former employees?

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____________________________

Date of Blog: February 26, 2019

Thank you for reading this - Jason Ward of WARDS LAWYERSPC.

If you would like to read more, please visit www.wardlegal.ca/blogs.  

This WARDS LAWYERSPC publication is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.

More information? We’re here to help - jason@wardlegal.ca and www.wardlegal.ca

©       WARDS LAWYERSPC (2019)

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POT IN THE WORKPLACE - MAY BE LEGAL, BUT STILL NOT ALLOWED

Employers may be confused and uncertain how legalized cannabis use impacts their workplace, including how they can monitor and regulate it. It is important to understand the difference between using weed recreationally and for medical reasons – they are treated differently, at law.

The Ontario Human Rights Code (the “Code”) applies to both recreational and medical cannabis. However, unless an employee has an actual, or perceived, addiction to cannabis, or must use medical cannabis due to a recognized disability, the recreational use of cannabis is unprotected by Ontario’s human rights law.

Essentially, using post recreationally, absent an addiction or to treat a recognized disability, is not protected by the Code. As a result, if these circumstances do not exist, employers are lawfully entitled to:

· impose rules for using recreational cannabis in the workplace, preferably by a written workplace policy;

· prohibit every employee from possessing any recreational weed in the workplace (or at work otherwise), despite that possessing small amounts is now legalized;

· stop employees from coming or reporting to work while influenced by recreational pot, even though use is now legal; and

· if these rules are not followed, discipline those employees who do not follow them, including up to termination for cause, if appropriate.

Cannabis use for medical reasons is different. The same rules apply as they do for other medically-necessary drugs or substances. Employees may be protected to use medical cannabis in the workplace. However, employers are entitled to require the employee to provide justification for his or her disability-related need to use medical pot. Employers can also require information from the employee about restrictions arising from the disability itself, or the medical cannabis used to treat the disability. If an employee’s use of medical weed creates a potentially serious safety risk in the workplace, and unlike other disability-related conditions, employers may not be obliged to accommodate the employee using medical weed, particularly if would cause undue hardship to the employer.

So, the Code may be triggered and apply, but only if an employee is addicted to pot, or it is used by the employee to treat a legitimate, medical condition that is recognized as a disability by the Code. In that case, employers cannot subject that employee to the same rules. Rather, the employee’s right to be in a workplace free from discrimination related to a disability must prevail, as required by the Code, including a potential duty to accommodate the employee.

If the employee’s use of medical cannabis creates no undue hardship to the employer, it may need to accommodate the employee’s use of it in the workplace, or at work. If so, and so long as no serious safety risk is created, the employer may need to permit the employee to use the medical cannabis at work, or while working, but only during breaktime and subject to Ontario’s smoking and vaping laws. The key is whether the use of medical cannabis will interfere with the employee’s duty to perform his or her duties in a safe manner, ensuring not to create a serious safety risk in the workplace. If so, accommodation is likely required, subject to how and when the cannabis is consumed by the specific employee and subject to anti-smoking and vaping laws in effect across Ontario.

Need an effective workplace policy for smoking, vaping and cannabis use?

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