Many employers have implemented COVID-19 vaccination policies to meet their obligations under the Occupational Health and Safety Act (“OHSA”) to provide a safe workplace. Some have done this on their own accord, while others were required to by law. Canadians are being encouraged to get a third dose of the COVID-19 vaccination, with many employers now requiring that their employees get booster shots.

The purpose of a COVID-19 vaccination policy is to provide a safe workplace. It could be considered reasonable to require employees receive boosters to satisfy this obligation. In effect, there is no difference between the original two doses and a booster, they all serve to create a safe workplace.

Recent decision on the reasonableness of booster shots in a COVID-19 vaccination policy

In Power Workers’ Union v Elexicon Energy Inc., arbitrator Michael Mitchell of the Ontario Labour Board found a COVID-19 vaccination policy requiring a third booster shot before employees could be considered fully vaccinated to be reasonable.

Arbitrator Mitchell noted that since three doses were generally required to protect against the Omicron variant, requiring the third booster aligned with the employer’s obligation to protect the health and safety of its workforce. However, Arbitrator Mitchell notably also stated that the policy was not reasonable for employees working remotely or outdoors.

This decision suggests that COVID-19 vaccination policies requiring employees to have booster shots are reasonable in high risk workplaces that provide essential services.

Important steps to draft and implement a proper COVID-19 vaccination policy

However, vaccination policies have become a difficult issue, and a source of litigation. Adding to the complexity, provincial governments have started to relax restrictions. We recommend employers take the following steps to protect their business:

1. Ensure your COVID-19 vaccination policy allows for refusals based on medical or religious grounds protected by Ontario’s Human Rights Code (“Code”);
2. If you intend to place employees on unpaid leave or terminate them for cause due to non-compliance with the COVID-19 vaccination policy, ensure that is clearly communicated;
3. Ensure your COVID-19 vaccination policy clearly lays out that employees will be required to get boosters;
4. Ensure all new employment agreements permit temporary layoffs and explicitly state that employees must comply with the COVID-19 vaccination policy; and
5. Require new employees to disclose their vaccination status before offering them a position; and make any offer contingent upon them explicitly agreeing to the terms of the vaccination policy.

Can an employee be terminated for refusing to comply with a vaccination policy?

The question that most employers are asking is whether they can terminate an employee for cause due to non-compliance with a COVID-19 vaccination policy. In this case, it would be due to refusing to get a booster.

While the reasonableness of COVID-19 vaccination policies is starting to be addressed in the unionized context, a legal decision has not yet touched on whether a termination for cause is reasonable. Further, no court has wrestled with the issue of COVID-19 vaccination policies in a non-unionized workplace.

An employer can always terminate an employee without cause. If you have recently updated your employment contracts, and have consulted with an experienced employment lawyer to ensure the termination provisions are enforceable, this may be the safest way to terminate an employee due to non-compliance with a COVID-19 vaccination policy. With properly drafted termination provisions you can limit an employee’s entitlement to the Employment Standards Act, 2000 (“ESA”) minimums. Further, it will dissuade employees, and their lawyers, from claiming wrongful dismissal.

Alternatively, you can terminate an employee for cause due to non-compliance with your COVID-19 vaccination policy. There are, however, risks associated with this approach. As noted, no court has determined whether termination for cause due to non-compliance with a COVID-19 vaccination policy is reasonable. Presently, decisions related to unionized workplaces suggest courts will take a contextual approach, weighing factors such as whether the COVID-19 vaccination policy is necessary to ensure workplace safety. This means that employers should act cautiously and terminate employees without cause where reasonable, such as when the employee’s entitlements are limited to the ESA minimum and have been reviewed against the Waksdale precedent which invalidated ESA limitations.  More practically, when employees are offered no termination package upon termination, they are significantly more likely to claim wrongful dismissal.

Vaccination policies, including those that require employees receive booster shots, are likely reasonable if clearly drafted and transparently rolled out. Issues may arise, however, when employers are forced to terminate employees due to non-compliance.

By Ben Markusoff

On March 1, 2022, Ontario further eased restrictions by lifting proof of vaccination requirements as well as indoor capacity limits. On March 14, 2022, mandatory vaccination will no longer be required in long-term care homes and unvaccinated workers will no longer have to undergo regular rapid testing, among other things. On March 21, 2022, masks will no longer be required in most settings. The province expects to lift all mask requirements will be lifted on April 27^th. Many businesses welcomed these announcements. However, it has also left businesses wondering how to handle workplace issues, such as vaccination policies and remote work, absent government direction.

Proof of vaccination for patrons

Last year the Ontario government introduced a vaccination passport program requiring that patrons provide proof of vaccination to access certain businesses and settings. Businesses generally supported this approach because it allowed them to ensure a safe workplace for their employees and patrons with clear government support.

Businesses, employees, and patrons alike have expressed concern about Ontario removing the passport program. However, businesses still retain the right to require proof of vaccination if they do not refuse service on discriminatory grounds under Ontario’s Human Rights Code (“Code”). Vaccination status is not a protected ground, but the reason someone is unvaccinated, for example due to a medical disability, could be a protected ground. While some patrons may attempt to make this claim, the Ontario Human Rights Committee has stated these exemptions are few and far between.

Mandatory vaccination and masking policies

The Occupational Health and Safety Act (“OHSA”) requires that employers protect their employees. To satisfy this obligation, many employers introduced mandatory vaccination policies, and required employees to wear masks.

Again, there is nothing preventing employers from keeping a mandatory vaccination policy in place absent a government mandate to do so. However, you may want to consider the following when drafting and implementing mandatory vaccination in the workplace:

1. Ensure your COVID-19 vaccination policy clearly lays out that employees will be required to get boosters;
2. Ensure all new employment agreements permit temporary layoffs and explicitly state that employees must comply with the COVID-19 vaccination policy; and
3. Require new employees to disclose their vaccination status before offering them a position; and make any offer contingent upon them explicitly agreeing to the terms of the vaccination policy.

A court has not yet determined if employers are permitted to terminate employees with cause due to non-compliance with a mandatory vaccination policy. Therefore, while employers may be permitted to terminate employees with cause, we generally recommend employers terminate employees without cause and require them to sign a release.  Most employers in Ontario retain the right to terminate an employee without cause, generally so long as they provide reasonable notice of termination. This approach will help to avoid litigation and higher legal costs.

You should also consider a combined vaccination and testing policy. Some employers have implemented vaccination policies where the employee must either get vaccinated or agree to being regularly tested. This less invasive method head off wrongful dismissal claims because anti-vaccination employees may be more likely to agree to testing, and you will not be put in the difficult situation of terminating unvaccinated employees. Further, decisions in the unionized workplaces have suggested that a combined policy is more likely to be found to be reasonable.

In addition, employers can continue to require employees to wear a mask while in the workplace.

However, act cautiously if you have not already introduced mandatory vaccination and masking policies. If the risk posed by COVID-19 wanes, the justification for unilaterally introducing a new term of employment, in this case a mandatory vaccination or masking policy, becomes tenuous.

Remote work policies

Over the past two years employers have formalized the necessity for remote work into remote work policies.

Employers can generally require their employees to go back to the workplace, absent a Code protected ground, or if their employment agreement states otherwise.

However, moving forward, many employers are considering whether it is beneficial to recall all employees to the workplace or implement a hybrid or fully remote workplace model. Employers and employees alike may wish to benefit from a hybrid remote work model, or fully remote work model. For employers, remote work will cut down on significant costs related to office space. For employees, it will offer flexibility and saving on commuting time.

If you have not already done so and intend to continue operating a hybrid or fully remote business, we strongly recommend you formalize this arrangement through a carefully drafted remote work policy. Such policies should anticipate how remote work environments address issues of discrimination and harassment in the age of zoom.

Many employers have implemented COVID-19 vaccination policies to meet their obligations under the Occupational Health and Safety Act (“OHSA”) to provide a safe workplace. Some have done this on their own accord, while others were required to by law. Canadians are being encouraged to get a third dose of the COVID-19 vaccination, with many employers now requiring that their employees get booster shots.

The purpose of a COVID-19 vaccination policy is to provide a safe workplace. It could be considered reasonable to require employees receive boosters to satisfy this obligation. In effect, there is no difference between the original two doses and a booster, they all serve to create a safe workplace.

 

Important steps to draft and implement a proper COVID-19 vaccination policy

However, vaccination policies have become a difficult issue, and a source of litigation. Adding to the complexity, provincial governments have started to relax restrictions. We recommend employers take the following steps to protect their business:

1. Ensure your COVID-19 vaccination policy allows for refusals based on medical or religious grounds protected by Ontario’s Human Rights Code (“Code”);
2. If you intend to place employees on unpaid leave or terminate them for cause due to non-compliance with the COVID-19 vaccination policy, ensure that is clearly communicated;
3. Ensure your COVID-19 vaccination policy clearly lays out that employees will be required to get boosters;
4. Ensure all new employment agreements permit temporary layoffs and explicitly state that employees must comply with the COVID-19 vaccination policy; and
5. Require new employees to disclose their vaccination status before offering them a position; and make any offer contingent upon them explicitly agreeing to the terms of the vaccination policy.

Can an employee be terminated for refusing to comply with a vaccination policy?

The question that most employers are asking is whether they can terminate an employee for cause due to non-compliance with a COVID-19 vaccination policy. In this case, it would be due to refusing to get a booster.

While the reasonableness of COVID-19 vaccination policies is starting to be addressed in the unionized context, a legal decision has not yet touched on whether a termination for cause is reasonable. Further, no court has wrestled with the issue of COVID-19 vaccination policies in a non-unionized workplace.

An employer can always terminate an employee without cause. If you have recently updated your employment contracts, and have consulted with an experienced employment lawyer to ensure the termination provisions are enforceable, this may be the safest way to terminate an employee due to non-compliance with a COVID-19 vaccination policy. With properly drafted termination provisions you can limit an employee’s entitlement to the Employment Standards Act, 2000 (“ESA”) minimums. Further, it will dissuade employees, and their lawyers, from claiming wrongful dismissal.

Alternatively, you can terminate an employee for cause due to non-compliance with your COVID-19 vaccination policy. There are, however, risks associated with this approach. As noted, no court has determined whether termination for cause due to non-compliance with a COVID-19 vaccination policy is reasonable. Presently, decisions related to unionized workplaces suggest courts will take a contextual approach, weighing factors such as whether the COVID-19 vaccination policy is necessary to ensure workplace safety. This means that employers should act cautiously and terminate employees without cause where reasonable, such as when the employee’s entitlements are limited to the ESA minimum and have been reviewed against the Waksdale precedent which invalidated ESA limitations.  More practically, when employees are offered no termination package upon termination, they are significantly more likely to claim wrongful dismissal.

Vaccination policies, including those that require employees receive booster shots, are likely reasonable if clearly drafted and transparently rolled out. Issues may arise, however, when employers are forced to terminate employees due to non-compliance.

Harassment may take a variety of forms. Calling attention to a person’s speech patterns, modes of dress, or physical appearance could all be considered harassment. While many thought that remote work would result in fewer incidents, working from home seems to have increased workplace harassment. According to a survey result published by Rights of Women, a British charity, “Covid-19 has seen women experience an upsurge in online sexual harassment whilst working from home, as harassers take advantage of online work platforms and social media during the pandemic.”

Employer obligations regarding workplace harassment

Although the survey is only about sexual harassment encountered by women, employers should be aware that harassment is not always necessarily sexual in nature, and it could happen to anyone while working from home. Ontario employers are obliged to provide healthy and safe working environments for their employees, and deal with workplace harassment under the Ontario Occupational Health and Safety Act (“OHSA”) – or the Canada Labour Code if federally regulated. The OHSA defines workplace harassment as engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. This definition includes, but is not limited to, sexual harassment. As the OHSA defines a workplace as any land, premises, location, or thing at, upon, in or near which a worker works, it actually may include employees’ home or any place from which they are working remotely.

As such, remote working may render the definition of workplace less important, while employers bear the same obligations to deal with harassment via Zoom, Teams, or even emails or phone calls. However, the line between workplace harassment and non-workplace harassment may be blurred in a remote working scenario. This may prove challenging to employers as their existing policies and practices could be insufficient in dealing with these new forms of harassment.

5 ways employers can protect employees from workplace harassment in the age of remote work

Since employers have a duty to provide a healthy and safe working environment, there are a few things employers should do to protect employees and fulfil their statutory obligations.

1. Update workplace harassment policies: Employers should consider updating existing workplace harassment policies to clearly include online harassment behaviours, laying out typical examples, and establishing responsive protocols to process harassment complaints.
2. Communicate with employees: It is important to educate employees about workplace harassment including online harassment in a remote working scenario, informing them of their rights, what is acceptable, and what is not.
3. Establish clear policies and procedures: Employers should outline clear technical solutions regarding online harassment. For example, the host of a Zoom meeting may kick a harasser out; the IT team may monitor, filter, or block emails or messages that contain unwelcome contents; employees may have separate virtual working phone numbers to avoid giving out their personal phone numbers. Consider having employees review a guide that explains the policy and sign the document.
4. Establish work-life boundaries: Draw a clear line between working hours and non-working hours and stick to it. This may help to separate workplace harassment and non-workplace harassment, especially that between colleagues, in a remote working scenario. Ontario’s recent
5. Set a good example: Employers should create an inclusive workplace culture that is accepting of diversity. It is important that employers establish supportive environments recognizing that, while there may be differences, it is the commitment to shared goals and teamwork that are critical to their interactions. From team leads through to upper management, organizational leaders should be trained in ways to correct and redirect actions that can cause significant discomfort and embarrassment.

Workplace harassment should not be ignored. Avoidance or delayed action could result in more serious and costly issues within any organization. When we are brought in for investigations costs begin in the thousands and could easily grow beyond $100,000.00. Practicing prevention and creating a positive workplace culture goes a long way to avoiding such costs.

If you need guidance from an experienced employment lawyer, call Hum Law today at (416)214-2329 or Complete our Free Assessment Form Here.

The COVID-19 pandemic has fundamentally changed the workplace and the operation of businesses in Ontario.

For employment lawyers, 2021 will be remembered most significantly for two developments. The first is the provincial government’s implementation of the Infectious Disease Emergency Leave regulation (“IDEL”) and its impact on constructive dismissal claims. Secondly, the development of mandatory vaccination policies in the workplace left employers grappling with the consequences of those refusing to be vaccinated or refusing to disclose their vaccination status. Other important developments relate to common law reasonable notice periods evolving to deal with the impact of COVID-19, and the government’s law relating to the “right to disconnect” and restricting the use of non-competition covenants.

Below are the most important employment developments of 2021, and what they could mean for employers in 2022.

Employment Development #1: IDEL and Constructive Dismissal Claims

Many employers have relied on the IDEL to place employees on leave to protect their businesses during the COVID-19 pandemic. However, many employees and their lawyers questioned whether the IDEL ousts common law claims of constructive dismissal. Specifically, the question is whether the IDEL permits employers to place employees on temporary layoffs as generally temporary layoffs, unless agreed to, are considered constructive dismissal at common law. Coutinho v. Ocular Health Centre Ltd., (“Coutinho”),Taylor v Hanley Hospitality Inc, (“Taylor”), and Fogelman v IFG (“Fogelman”)  wrestled with this issue, and came to opposite conclusions.

In Coutinho, Justice Broad of the Ontario Superior Court (“ONSC”) concluded that the IDEL did not oust the common law and an employee objecting to being put on IDEL could still sue for common law constructive dismissal damages. This was also the case in Fogelman.

On the other hand, in Taylor, Justice Ferguson of the ONSC came to the opposite conclusion, that the plaintiff was barred from suing for constructive dismissal due to the IDEL. This decision has been appealed to the Ontario Court of Appeal (“ONCA”), with the appeal anticipated to be heard in April 2022.

Overall, the controversial IDEL provisions have placed employers in a complicated position if they were forced to lay off or put employees on leave for COVID-19 related business reasons. Can an employee sue for constructive dismissal if put on IDEL?

If so, the potential liability could have serious financial consequences for employers who failed to revise their employment contracts to take into account the Court of Appeal’s June 2020 decision in Waksdale v Swegon North America Inc.(“Waksdale”). This decision likely invalidated many employers’ attempts to limit liability on termination to the minimums under the Employment Standards Act, 2000 (“ESA”).  If the decision in Taylor is overturned on appeal, the failure on the part of smaller employers to update their contracts could change an anticipated maximum of 8 weeks termination pay to over ten times that for longer term employees (up to 26 months or 113 weeks in one case).

Employers can anticipate some clarity on this issue once the Court of Appeal hears and releases its decision in Taylor.

 

Employment Development #2: Termination due to non-compliance with vaccination policies

The question everyone is asking right now is whether an employee can be terminated for cause due to non-compliance with a mandatory vaccination policy.

We have some guidance on this issue from arbitration decisions in unionized workplaces.

In United Food And Commercial Workers Union, Canada Local 333 and Paragon Protection Ltd (“Paragon“), arbitrator Frederick R. Von Veh, upheld the employer’s vaccination policy. He noted that according to their collective agreement, if an employee is assigned to a client site where specific vaccination or inoculation is required, the employee must agree to receive such vaccination or inoculation. The majority of the employer’s clients have also implemented their own vaccination policies. As a result, employees and contractors must be fully vaccinated in order to work or remain working at these client sites. This was a contributing factor for the arbitrator to uphold the mandatory vaccination policy. Paragon proved that the courts could uphold reasonable vaccination policies. However, we should note that the employer, in this case, agreed to an accommodation to move non-vaccinated employees to worksites that did not require vaccination. This accommodation meant avoiding the question of termination for cause due to non-compliance with a vaccination policy.

In another labour arbitration decision, Electrical Safety Authority and Power Workers Union (“PWU”), arbitrator John Stout found the employer’s mandatory vaccination policy, which provided that unvaccinated employees would eventually be disciplined and ultimately discharged for just cause, unreasonable. Unlike in Paragon, the Collective Agreement in this case did not address vaccinations and, specifically, did not require employees to be vaccinated if required by the employer’s client. This factored into Stout’s decision on whether termination was reasonable due to non-compliance with the vaccination policy. Among other things, the arbitrator reasoned that when other reasonable alternatives to mandatory vaccination are available, such as rapid testing, the employer may not be able to justify its mandatory vaccination policy and termination for cause as a result of not following the policy. This decision is significant because it notes that context is extremely important when assessing the reasonableness of a workplace rule or policy that may infringe upon an individual employee’s rights. It also indicates the way the courts may consider these cases in the non-unionized context. Further, this case highlights the fact that the situation is ever evolving, so while the policy is not reasonable now, it could be later.

The above decisions, while in unionized workplaces, will shed some light on non-unionized employees as well. In non-unionized workplaces, some considerations may vary. However, it is expected that the general principles will be similar. So, whether a vaccination mandate that leads to a termination for cause for unvaccinated employees will be upheld will depend on the specific context of the workplace and the policy itself. What we can tell so far is that context is important, and each decision will be approached on a case-by-case basis with no easy answers for employers.

For example, in a case where employees are client-facing, especially if working with vulnerable populations, such as in a long-term care home, termination for cause due to non-compliance with a vaccination policy is likely reasonable. However, if the employee is an IT professional who works remotely, termination for cause for failure to vaccinate would likely be unreasonable.

Employers can anticipate that a decision from a non-unionized workplace will be released sometime in 2022, which will provide guidance on this important issue.

 

Employment Development #3: Working for Workers Act, 2021

Late in the year, on December 2, 2021, Bill 27, Working for Workers Act, 2021 (“Bill 27”) received royal assent. Two of the most noticeable changes made by Bill 27 are employees’ “right to disconnect” and a prohibition on non-compete agreements.

Employers with 25 or more employees will be required to have a written policy with respect to disconnecting from work, and have until June 2, 2022, to do so. The term “disconnecting from work” is defined to mean “not engaging in work-related communications, including emails, telephone calls, video calls, or the sending or reviewing of other messages, so as to be free from the performance of work.” There is a lack of clarity of what this “right to disconnect” actually entails, as the obligation on employers appears to be transparency about work-related communications, and what an employee’s usual work entails.

Bill 27 also prohibits non-compete agreements between employers and employees, with two noted exceptions. The first exception regards the sale (or a lease) of a business. Non-compete agreements between the seller and purchaser may be allowed as a part of the sale where the seller becomes an employee of the purchaser immediately thereafter. The second exception is that a non-compete agreement is not prohibited between an employer and its executives. “Executive” is defined in Bill 27 as “any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or holds any other chief executive position.”

Employers should note these changes and implement the required written policy before the June 2, 2022, deadline. Further, employers should update their employment contracts to align with Bill 27’s prohibition on non-compete agreements. While executives are an exception to the prohibition on non-compete agreements, it is important to regularly review your non-compete agreements and clauses to ensure they are enforceable.

Employment Development #4: Yee v Hudson’s Bay Company

In 2021, employers were faced with submissions on the part of employee counsel arguing that the pandemic should be a factor leading to an increase in the period of common law reasonable notice.  Based on a review of the cases, whether or not there is such an increase will be determined on a case-to-case basis, and on whether the employee has been able to prove that market conditions for re-employment were affected by the pandemic. Employers should consider the industry in which their business operates and assess whether it is likely that a court would extend the reasonable notice period.

Yee v Hudson’s Bay Company (“Yee”) was the first of a number of cases where the Plaintiff argued that the reasonable notice period should be increased due the pandemic, based on the limited availability of similar employment. In Yee, Justice Dow of the ONSC found that the COVID-19 pandemic’s impact on market conditions was a relevant consideration when determining the reasonable notice period. He awarded 16 months’ reasonable notice for an employee with approximately 12 years of service. However, while Justice Dow acknowledged the pandemic was a relevant consideration, he noted that the Plaintiff was terminated prior to the pandemic. Therefore, the pandemic’s effect on employment opportunities should not attract the same consideration as a termination that occurred during the pandemic. Justice Dow did not explicitly state that the pandemic resulted in him awarding the Plaintiff additional reasonable notice.

In each of Kraft v Firepower Financial Corp. (“Kraft”) and Pavlov v Australian Lamb Company Limited, (“Pavlov”), the former employees were successful and awarded additional pay in lieu of reasonable notice where they had evidence of the pandemic’s impact on their re-employment prospects. In Kraft, the increase was one additional month; however in Pavlov, the reasonable notice period was extended to 10 months for an employee with just under three (3) years service.

 

Employment Development #5: Rahman v Cannon Design Architecture

As previously discussed, the ONCA’s decision in Waksdale rendered the termination provisions of many employment agreements in Ontario unenforceable. It also left employers exposed to an onslaught of costly wrongful dismissal lawsuits.

As a result, the decision in Rahman v. Cannon Design Architecture (“Rahman”) seemed to provide some relief for employers. Justice Dunphy of the ONSC distinguished Rahman from Waksdale, noting both employee and employer in Rahman had equal bargaining power during negotiations. Justice Dunphy noted that the employee was sophisticated and represented by a lawyer during negotiations, and  that each party had a shared a mutual intention to contract out of the ESA.  This decision surprised many employment lawyers, as the termination provisions in the plaintiff’s employment agreement were similar to the termination provisions held to be unenforceable in Ojo v Crystal Claire Cosmetics Inc. (“Ojo”).

Unfortunately for employers, the relief was short-lived, as the decision in Rahman was strongly criticized by Justice Black in Campbell-Givons v. Humber River Hospital (“Campbell-Givons”), who rejected the approach in Rahman, concluding that an illegal provision is illegal and the party’s sophistication is irrelevant.

In our opinion, Rahman is unlikely to be widely followed as the standard. Employers should ensure that their termination provisions are air-tight, regardless of the sophistication of their employees.

 

Employment Development #6: Hawkes v Max Aicher (North America) Limited

Hawkes v Max Aicher (North America) Limited (“Hawkes”) provided some welcome direction to a question that has frustrated employment lawyers and courts for years.

In Hawkes, Justice Dambrot of the ONSC clarified section 61(1) of the ESA, specifically that the $2.5 million payroll for the payment of statutory severance applies to an operation’s global operations, not only their Ontario operations. Therefore, if an employer has a payroll of $2.5 million globally, and employed an employee for more than five years, that employee is at least entitled to statutory severance pay. Employers with national or international business operations can anticipate that employee’s counsel will routinely raise this argument to secure ESA severance payments for their clients.

 

Employment Development #7: Perretta v Rand A Technology Corporation

In Perretta v Rand A Technology Corporation (“Perretta”), Justice Sanfilippo of the ONSC found that an employer cannot rely on a contract to limit an employee’s entitlements at termination where an employer’s post-termination actions show an intention not to be bound by the terms of an employment agreement.

The employer in Perretta refused to provide the employee with the two weeks’ pay in lieu of notice as set out in her employment agreement, unless she first executed a Full and Final Release. The employee stated this action constituted a repudiation of the employment agreement, and that she was entitled to common law damages. Justice Sanfilippo agreed and awarded the employee 6 months’ common law reasonable notice.

This case is a reminder that employers should not insist on a release in exchange for an employee’s contractual entitlements. Failure to provide a contractual entitlement on termination could mean that the employer forgoes the benefit of any valid termination clauses in the agreement.

 

Employment Development #8: Currie v Nylene Canada Inc.

Only in exceptional circumstances will a court award a notice period of more than 24 months. The employee in Currie v Nylene Canada Inc. (“Currie”) presented those exceptional circumstances. The employee, who was 58 at the time of termination, had worked for the employer for almost 39 years in a specialized field, but also had a limited education and skill set.

Justice Smith of the ONSC concluded that the termination amounted to a forced retirement, and therefore justified a reasonable notice period of 26 months. While factual situations like this are likely rare, employers should realistically consider a terminated employee’s likelihood of re-employment before engaging in costly and unsuccessful litigation.

 

Written by Lai-King Hum, Founder Hum Law with assistance from Associates Weinan Wang and Ben Markusoff.

 

These developments may be difficult to navigate.  If you need guidance from an experienced employment lawyer, call Hum Law today at (416)214-2329 or email info@thehumlawfirm.ca.

Complete our Free Assessment Form Here

Termination clauses may be the most litigated clause of employment agreements. Drafted correctly and updated regularly, termination packages can be limited to employment standards minimums. Drafted incorrectly or not regularly reviewed, and the employer relying on that clause is in for a costly surprise!

Because employment agreements, including termination clauses, are drafted by employers, any ambiguity or lack of clarity will be interpreted as a matter of law in favour of employees.

Why is this important? One of the most common misunderstandings about termination pay is the belief that as long as the termination package is in accordance with the Employment Standards Act, 2000 (“ESA“), employers have fulfilled their obligations with respect to termination pay under the law. That is not necessarily true. A good employment lawyer could prove that ESA terms are not enough because many termination clauses do not stand up in court. This can quadruple damages. What was 8 weeks termination pay could turn into 8 months.

In addition to an employers’ statutory obligations upon termination under the ESA, employers also have an obligation under the common law. Upon termination, the common law requires an employer to give employees sufficient common law reasonable notice or pay in lieu thereof. This is usually much higher than the minimum obligations under the ESA. A long-term employee may be owed up to 24 months of salary and benefits. There is no straightforward equation to calculate the amount owing under Common law. It is a case-by-case decision with multiple factors to be considered. As a result, its exact length or amount becomes another source of dispute upon termination.

This is where the termination clause comes into play.

The importance of the termination clause

Common law requires more than the minimum entitlements under the ESA, and it is less certain. However, a well-drafted employment agreement can set up a straightforward equation to calculate termination pay via the termination clause. It provides certainty that reduces the possibilities of dispute, and it may help the employer to reduce termination costs significantly. That is why an enforceable termination clause is important to employers. You want to pay 8 weeks, not 8 months or 24 months for a long-term employee.

Well drafted termination clauses limit employees’ entitlements under the common law. As employees are perceived as the weaker party in employment negotiations, judges have been scrutinizing termination clauses under a microscope. Vaguely written termination clauses could easily be nullified if they are inconsistent with the ESA. In many cases, this increases employee entitlements exponentially.

Termination clauses tested in the courts

One of the most recent examples where a termination clause did not hold up in court is the Waksdale decision. In this case, the court ruled that if the termination for cause provision is invalid, it will nullify the entire termination clause, including otherwise perfectly drafted termination without cause provisions. This shows any mistake made in the termination clause could jeopardize the entire clause and will cost employers unexpectedly upon termination.

The expenses upon termination may become even more unexpected when an employee has group benefits and other kinds of compensation in addition to salary, such as commissions, bonuses, incentive payments, options, deferred benefits sharing plans, or otherwise. If the termination clause is not properly drafted, employees will be entitled to those compensations or damages for those compensations, even if the employee is not actively employed during the notice period.

In a recent case, Rahman v. Cannon Design Architecture Inc., the judge decided that the employee was more sophisticated because they had the assistance of legal counsel while negotiating the employment contract. In this case, the court gave more leeway to the employer and enforced the termination clause. However, this decision is an outlier of the court’s long-standing position, and another judge has already refused to follow it.

Recent changes to note

We also remind you that the Ontario government passed Bill 27, Working for Workers Act, 2021 (Bill 27). Bill 27 outlines an employee’s “right to disconnect” and essentially prohibits the use of non-compete clauses in employment agreements with two limited exceptions. Employers will need to create “right to disconnect” policies. It is also necessary to review all post-termination restrictive covenants to ensure that they have enforceable provisions. This ensures protection of legitimate interests if the non-compete covenant is no longer enforceable.

If you need guidance from an experienced employment lawyer, call Hum Law today at (416)214-2329 or email info@thehumlawfirm.ca.

Complete our Free Assessment Form Here

On December 7, 2021, the Ontario government announced that it was extending the Worker Income Protection Program (“Program”) until July 31, 2022. The program provides employees with up to three (3) paid days leave if they cannot work due to COVID-19 related reasons. As a refresher, Employees will qualify for paid leave if they are:

1. Unable to work because they are under investigation, supervision, or treatment for COVID-19, which includes receiving a vaccine and recovering from related side effects;
2. Exhibiting symptoms of COVID-19 and have been directed to stay home;
3. Self-isolating due to COVID-19; or
4. Caring for a COVID-19 patient.

Employers are required to pay eligible employees up to $200.00 a day for up to three (3) days. Ontario will reimburse employers through the Workplace Safety and Insurance Board.

The Ontario government also announced it would extend the temporary layoff exemption until July 30, 2022. In May 2020 Ontario introduced the Infectious Disease Emergency Leave regulation (“IDEL”) under the Employment Standards Act, 2000 (“ESA”). It protects employers who have to temporarily layoff employees due to COVID-19 by exempting those layoffs from being considered a termination of employment. In those circumstances, the employee is deemed to be on IDEL, rather than terminated, and ESA notice of termination and severance pay obligations are not triggered.

However, IDEL has created some confusion. It is possible that IDEL does not protect employers from common law constructive dismissal claims if an employee has been placed on IDEL. Several lower court cases have considered this issue and come to opposite results. One of these cases, Taylor v Hanley Hospitality Inc., 2021 ONSC 3135, was appealed and is scheduled to be heard by the Ontario Court of Appeal (“ONCA”) on April 1, 2022. Interestingly, the Ontario government initially sought to intervene in the appeal only to later withdraw that request on 2 points::

1. The IDEL provides that a temporary reduction or elimination of hours of work or temporary reduction in wages of a non-unionized employee by an employer during the COVID-19 period for reasons related to COVID-19 does not constitute a constructive dismissal under the ESA; and
2. The IDEL does not displace an employee’s right to seek a civil remedy against their employer for constructive dismissal at common law.

It appeared that the Ontario government supported the position that the IDEL does not protect employers from a common law constructive dismissal claim if they place employees on temporary layoff due to COVID-19. This suggests employers should be careful about relying on IDEL until the ONCA provides clear guidance.

The Hum Law Firm continues to monitor legal developments related to COVID-19. We encourage you to contact us immediately for legal assistance.

 

Call us at (416)214-2329 or email info@thehumlawfirm.ca.

Complete our Free Assessment Form Here

Mandatory vaccination policies are a widely discussed topic among employers and employees alike as we look to further reopen the economy in the middle of a fourth wave. Employers have a duty to protect their employees and customers in the workplace. However, as we have previously discussed, improperly drafted and communicated mandatory vaccination policies may encroach on employees’ privacy rights and their rights not to be discriminated against. Employers must ensure any mandatory vaccination policy is clearly worded and justifiable based on the type of workplace in question. Otherwise, employers may run into costly legal troubles.

If you have reviewed your circumstances and found that a mandatory vaccination policy is justifiable in your workplace, the next question to consider is how to deal with employees who cannot get vaccinated for reasons protected under human rights laws (e.g., the Ontario Human Rights Code). An employee may claim to be prevented from getting vaccinated because of religious belief or a medical condition, both protected human rights grounds. However, the employer has the right to ask for satisfactory proof of that religious belief or medical condition before providing accommodation for this employee.

Medical Exemptions under Mandatory COVID-19 Vaccination Policies

There are two types of medical conditions that could prevent an employee from getting vaccinated:

1. A long-term or permanent medical condition, which would likely prevent vaccination permanently.
2. A temporary/time-limited medical condition, where an employee may be able to get vaccinated once they are no longer afflicted with the condition.

Permanent medical conditions that prevent people from being vaccinated are rare. According to the Ontario government, there are only two situations: the first would be an allergic reaction to a component of the vaccine; the second would be if an individual suffered myocarditis or pericarditis after the first dose of a vaccine.

Time-limited conditions are also uncommon. In rare cases, employers may need to accommodate the time an employee needs for a medical procedure or other treatment.

Religious exemptions

Similarly, religious exemptions are also rare. If, based on the creed/religion they practice, an individual believes that they are not permitted to be vaccinated against COVID-19, they may be exempted. This cannot be a matter of personal preference or opinion, but religious prohibition. In other words, practitioners of a faith that endorses taking the vaccine may find their requests denied. Numerous tribunals have ruled that people who refused to follow mandatory mask policy did not have a human rights claim if they refused to do so out of personal preference. For example, believing that wearing a mask is “pointless”, because they disagree that wearing masks helps to protect the public during the pandemic, or believing that wearing a mask does not stop the transmission of COVID-19. Similar reasons will likely apply to objections to mandatory vaccination policies.

As such, a more detailed and restricted reason than “I believe the vaccine is bad” is needed to establish a religious exemption.

Asking for proof for religious exemptions might entail obtaining an opinion from a recognized leader of a church or mosque or other creed or faith.

How to deal with exemptions in a mandatory COVID-19 Vaccination policy

Employers will need to address exemptions on a case-by-case basis. It is important to clearly lay out the exemption process and requirements in a mandatory vaccination policy. For example, for medical exemptions, employers could either exempt an employee with a time-limited condition for a reasonable period of time so that once they are able to be vaccinated they can. For those who have permanent conditions, employers may need to provide accommodations as long as COVID is a threat.

Employers should require evidence for exemptions

Employers are entitled to ask for proof of the need for an exemption. Since this type of information is personal (health) information, employers should be careful when handling such information, and only collect and keep the minimum that is necessary to serve the justified purpose. Employers should also note whether the expert providing evidence is qualified for doing so. If the employee refuses to provide such proof or provides fake documents, this may lead to disciplinary actions or even termination for cause.

That said, employers are urged to exercise caution before disciplining or terminating an employee whenever privacy and human rights considerations are involved, and particularly if the employer alleges cause. If not managed properly, such employer actions could lead to litigation and unnecessary costs.

An improperly managed mandatory vaccination policy may damage the effective management of a workplace and potentially lead to loss of employee morale, possible loss of employer reputation, and significant costs. Employers are advised to consult with experts before developing and implementing mandatory vaccination policies.

If you need guidance from an experienced employment lawyer, call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca.

Complete our Free Assessment Form Here

Workplaces are finally opening back up. As we breathe a collective sigh of relief, this next step also poses challenges for employers. We have put together some answers in response to frequently asked employer questions.

#1: What happens when the mask mandate lifts in Ontario? Can I keep one in place?

If Ontario lifts the mandatory mask mandate, a mandatory mask workplace policy would be more stringent than what the province requires. This is fine, but employers must be careful when considering what to do if an employee refuses to follow the policy.

Some employees will have genuine reasons for refusing to wear a mask, for example, if they cannot wear a mask for a reason covered by Ontario’s Human Rights Code (“Code”). If this is the case, you must make a good faith effort to accommodate them. Keep in mind, however, that the requirement to wear a mask may be a reasonable and bona fide requirement for health and safety that employees must follow. If so, and if accommodation causes you undue hardship, termination may be appropriate.

Other employees may refuse because they do not believe in masks, lockdowns, or vaccinations. This is not protected by the Code, and it is likely appropriate in this situation to terminate an employee who refuses to wear a mask. We caution employers when doing so because, while possible that refusing to wear a mask is grounds for termination for cause, it remains undetermined by a court. Accordingly, termination without cause is the more prudent approach.

 

#2: What happens if one or more employees are not comfortable with no COVID-19 restrictions?

The Occupational Health and Safety Act (“OHSA”) requires that employers protect their workers. The OHSA also gives employees the right to refuse work that they believe is unsafe. Employers should ensure that they have taken all reasonable precautions to create a safe workplace. If they have done so, it is unlikely that an employee can reasonably refuse to work.

That said, to maintain positive relationships with employees, employers may wish to create a remote work policy. A remote work policy would allow employers to accommodate those employees who are concerned with a “no restrictions” workplace. A good remote work policy should set out the employer’s right to recall employees and productivity expectations. For instance, employers may want to ensure that employees track hours of work and regularly check in with supervisors.

 

#3: What happens if an employee refuses to get a COVID Vaccine?

Many employers have implemented vaccination policies, both mandatory and incentive based. Ontario recently announced that COVID-19 vaccination policies are mandatory for high-risk settings. Ontario has issued a directive mandating hospitals and home and community care service providers and ambulance service providers to have vaccination policies. The vaccination policies must be effective no later than September 7, 2021, and must at least require individuals to provide proof of one of three things:

• Full vaccination against COVID-19;
• A medical reason for not being vaccinated against COVID-19; or
• Completion of a COVID-19 vaccination educational

If proof of vaccination is not provided, individuals will be required to undertake regular testing. Vaccination policies will also be implemented for employees in:

• Schools and child-care;
• Post-secondary institutions;
• Women’s shelters; and
• Group

For schools and child-care, Ontario intends to introduce a vaccination disclosure policy for all employees, with rapid testing requirements for unimmunized staff.

If an employer requires employees to get a COVID-19 vaccine, and the employee refuses to do so, the employer may wish to terminate them. Before doing so, you should consider if the employee’s refusal is premised upon a protected ground under the Code. If their refusal is protected by the Code, you must accommodate them unless it creates undue hardship for you.

Another crucial question is if you can terminate for cause or only without cause. Termination for cause is likely only appropriate in limited situations, for example, where employees are working with individuals who are immune compromised.

Generally, employers will need to rely on without cause terminations when dealing with an employee who refuses to get vaccinated. Employers always maintain the right to terminate an employee without cause, so long as they provide the employee with their contractual entitlements, or, if applicable, their common law entitlements. However, proceed with caution, as many employment contracts in Ontario now have invalid termination provisions due to the 2020 Ontario Court of Appeal decision in Waksdale v. Swegon North America Inc. We strongly recommend that employers update their employment agreements if they have not done so within the past year.

 

#4: Can I require customers to be fully vaccinated before entering my business?

Ontario recently announced that it will require people to be fully vaccinated and provide proof of their vaccination for certain businesses and setting starting September 22, 2021. Proof of vaccination will be required to enter the following businesses and settings:

• Restaurants and bars (excluding outdoor patios, as well as delivery and takeout);
• Nightclubs (including outdoor areas of the establishment);
• Meeting and event spaces, such as banquet halls and conference/convention centres;
• Facilities used for sports and fitness activities and personal fitness training, such as gyms, fitness, and recreational facilities except for youth recreational sport;
• Sporting events;
• Casinos, bingo halls and gaming establishments;
• Concerts, music festivals, theatres and cinemas;
• Strip clubs, bathhouses, and sex clubs; and
• Racing venues (e.g., horse racing).

Accordingly, if your business or workplace falls into one of the categories above, your customers must

be fully vaccinated and provide proof of vaccination before entering your business or workplace. If not, your business or workplace is permitted to refuse service to individuals who are unvaccinated, subject to an important caveat: businesses in Ontario are subject to the Code, and therefore cannot refuse service on discriminatory grounds protected by the Code. While vaccination status is not a protected ground, the reason someone is unvaccinated could be, for example, if they have a disability preventing them from being vaccinated. If so, refusing them service could be viewed as discrimination under the Code.

Full vaccination and proof of vaccination are not required in settings where people receive medical care, food from grocery stores, medical supplies, and the like.

 

#5: What happens if an employee refuses to share their vaccination status?

As discussed earlier, employers have a duty to provide a safe workplace. An employee’s vaccination status is directly relevant to this duty. However, employers must proceed cautiously to ensure they do not breach an employee’s privacy rights. Employers should limit their inquiry to whether the employee is vaccinated. We recommend that employer’s set this out clearly in their vaccination policy. A more prudent approach might be for employers to state that employee disclosure of their vaccination status is not mandatory, but that the employer has the right to make decisions about the workplace according to disclosed vaccination status.

 

#6: How do I ensure my workplace policies are up to date with provincial guidelines?

Ontario operates a website outlining COVID-19 public health measures and advice. However, this website does not provide the full picture. We encourage you to work closely with an experienced employment and human rights lawyer to not only ensure your workplace policies are up to date with provincial guidelines, but also compliant with applicable human rights legislation, employment standards legislation, and health and safety legislation.

If you need guidance from an experienced employment lawyer, call HUM Law today at (416)214-2329 or email info@thehumlawfirm.ca.

Complete our Free Assessment Form Here

Question: We have a mandatory vaccination policy in place but 3 of my employees refuse to get vaccinated. It is making the rest of my staff uncomfortable, and I want to make sure that rules are followed. Can I legally fire them?

Answer:

The Occupational Health and Safety Act (“OHSA”) requires that employers provide a safe workplace, including the protection of employees from infectious diseases. Many employers are now implementing vaccination policies on their own volition, while other employers, such as those in in high risk settings, have been required by law to implement vaccination policies.

Often, these vaccination policies will state that if an employee refuses a COVID-19 vaccine, and in turn breaches the vaccination policy, they could be terminated with cause. In Ontario, termination with cause has a very high standard and it is complicated. Before terminating an employee with cause because they refuse to be vaccinated, consider the following.

• Is the employee exempt from mandatory vaccination for a reason protected by Ontario’s Human Rights Code (“Code”)? For example, an employee may claim an exemption on the basis of the protected grounds of disability or religious belief. In this scenario, provided that the employee provides satisfactory evidence to support the claim for an exemption, employers are required to accommodate that disability or religious belief to the point of undue hardship, such as health and safety risks and financial hardship.
• Can the employee still perform their duties without putting their fellow employees at risk? For example, could the employee continue to work from home. If so, it may be more difficult to justify with cause termination, as the employee’s refusal to get vaccinated is not necessarily creating an unsafe workplace.
• Is this a long-service employee with a clean disciplinary record? If so, it may be more difficult to justify termination with cause.
• Was the employee aware of the vaccination policy and given adequate notice about its implementation? If not, most courts would view termination with cause as too harsh and it would likely not be upheld.

While in some circumstances termination with cause due to an employee refusing to be vaccinated may be justified, in others it will not. Accordingly, we caution employers to tread carefully, and instead rely on without cause terminations. Most employers in Ontario retain the right to terminate an employee without cause, generally so long as they provide reasonable notice of termination. This approach is more prudent because of the risk that termination with cause due to a refusal to get vaccinated might not be upheld by a court.

We encourage you to contact Hum Law for support because, ultimately, terminations are complicated and contextual.

Call us at (416)214-2329 or email info@thehumlawfirm.ca

Complete our Free Assessment Form Here