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As we leave behind 2022, the long shadow of COVID-19 continues to linger and may have changed our workplaces forever.

Perhaps the most significant workplace trend with long term effects on employers is remote work.  Given how it proved to be a viable option for many workplaces over the pandemic, as workplaces started opening in late 2022, employees are demanding the ability to work from home at least some of the time.  As employers navigate this option, legal risk factors include how to record and determine working hours and overtime, how remote work will affect employees’ right to disconnect, and how privacy issues intersect with an employer’s electronic monitoring.

Against that backdrop, below are important employment law developments we saw in 2022 for Ontario employers, and what that could mean in 2023.

Employment Development #1: IDEL and Constructive Dismissal Claims

As of July 30, 2022, employers can no longer rely on the Infectious Disease Emergency Leave regulation (“IDEL”) to put employees on indefinite leave.  After that date, employers could rely on the ESA temporary layoff provisions to further delay their employees’ return to work.

However, it remains unclear whether employers who had put employees on IDEL are at risk of a successful constructive dismissal claim.  Given conflicting lower court decisions in Coutinho v Ocular Health Centre Ltd., 2021 ONSC 3076, Fogelman v. IFG, 2021 ONSC 4042, and Taylor v. Hanley Hospitality Inc. (Taylor), 2021 ONSC 3135, the latter’s appeal to the Ontario Court of Appeal was expected to give us clear guidance in 2022.  Instead, the Court of Appeal in Taylor v. Hanley Hospitality Inc., 2022 ONCA 376 ultimately decided the appeal without deciding this issue.

We can look forward to more definitive direction from a Superior Court or an appellate court decision in 2023.

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

Throughout 2022, mandatory vaccination policies in the workplace were a notable topic of discussion.  As the vaccination rate among Canadians is high and COVID-19-related restrictions have lifted, it may become increasingly difficult in many workplaces to justify a mandatory full vaccination policy in 2023.

Past cases, generally decided in labour relations cases by arbitrators, tended to uphold an employer’s right to have a mandatory full vaccination policy.  These cases were decided during the peak of the pandemic when the vaccination rate was not high enough, and old variants were more deadly than new ones.

Those trends started to change by mid-2022.  For instance, in July 2022, the arbitrator in FCA Canada Inc. v Unifor, Locals 195, 444, 1285, 2022 CanLII 52913 (ON LA), held that a two-dose requirement was reasonable when it was initially introduced, but was no longer reasonable as of the date when the decision issued. In Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 v Toronto (City), 2022 CanLII 78809 (ON LA), the arbitrator upheld the mandatory vaccination policy requiring two doses as reasonable, but found that the enforcement mechanisms of disciplinary suspensions and discharge for non-compliance were unreasonable.

While different considerations will be at play in the non-unionized context, we can expect more labour relations decisions in 2023 that will temper the reasonableness of a mandatory full vaccination policy.  Employers will continue to face uncertainty and risk if they decide to terminate employees due to non-compliance with mandatory vaccination policies, as the cases will likely be decided on a case-by-case basis.

Employment Development #3: Electronic monitoring policies put transparency first

Privacy rights are a growing concern especially as employers incorporate permanent remote work and hybrid work models. Government is responding to employee concerns with legislation forcing transparency on employers. For instance, an amendment to the Employment Standards Act, 2000 (“ESA”) on April 11, 2022 requires employers with 25 or more employees on January 1 of any year  to have a written policy in place by March 1 of that year on the electronic monitoring of employees.

The policy must include:

• A description of how and in what circumstances the employer may electronically monitor employees.
• The purposes for which the information obtained through electronic monitoring may be used by the employer.
• The date the policy was prepared.
• The date any changes are made to the policy.

Failure to do so may result in complaints to, and investigations by, the labour division of Ontario’s Ministry of Labour, Immigration, Training and Skills Development. As noted in our article Ontario Electronic Monitoring Policy Due by October 11, 2022 this should be reviewed annually.

Employment Development #4: Digital Platform Workers’ Rights Act

The Digital Platform Workers’ Rights Act was passed in April 2022, and we expect that the contemplated amendments to the ESA will be declared in force sometime in 2023.

This Act will apply to digital platforms and their workers, such as DoorDash and Uber and their drivers – the vast majority of whom are currently unprotected as independent contractors.  The changes contemplated will provide all digital platform workers with comprehensive minimum rights to:

• Information (section 7).
• A recurring pay period and pay day (section 8).
• Minimum wage (section 9).
• Amounts earned by the worker and to tips and other gratuities (section 10).
• Notice of removal from an operator’s digital platform (section 11).
• Resolve digital platform work-related disputes in Ontario (section 12).
• Be free from reprisal (section 13).

Digital platforms will need to invest significant time and resources to bring themselves into compliance. They should consider starting as early as possible to avoid risk of financial liability, even before the Act comes into force.

Employment Development #5: Reckless Termination and Discrimination Claim

Employees who have been recklessly terminated may claim significant damages against their employer. In Luckman v. Bell Canada, 2022 CHRT 18, a recent decision of the Canadian Human Rights Tribunal (“CHRT”), the employer, Bell Canada (“Bell“), terminated their employee, Mr. Luckman, citing corporate restructuring.  Bell denied that performance was a reason for his termination.

However, prior to his termination, Mr. Luckman had taken a few medical leaves of absence as he suffered from health issues known to Bell.  On his return from a second medical leave, Bell failed to offer any accommodations, such as a flexible schedule, remote work, or additional resources, to deal with known stresses of his return to work, ultimately affecting his performance.

Bell might have legitimately cited performance issues but provided no evidence that it had tried to manage performance or that the selection process to terminate him as opposed to another employee was based on non-discriminatory grounds.  Rather, the Tribunal found that Bell’s termination was reckless as, even though Mr. Luckman’s medical limitations were known to Bell, Bell offered no accommodation on his return to work, and no one seemed to have “considered whether firing an employee recovering from cancer surgery might be discriminatory.”  For this “reckless termination”, the Tribunal awarded $15,000 in damages for pain and suffering, a further $15,000 for Bell’s wilful and reckless conduct, as well as $91,052.40 for lost wages.

Employers should proceed cautiously when they know, or should know, that there are potential human rights issues in terminating an employee or be at risk of potentially significant financial liability.

Employment Development #6: Removal of Canadian Experience Requirement

Requiring Canadian experience as part of licensing criteria in any of the regulated professions will be deemed void on and after December 1, 2023. This opens up employment and business opportunities to internationally trained professionals. This important development, the result of over a decade of advocacy, arose from Bill 27: Working for Workers Act, 2021, which received royal assent on December 2, 2021.  Strictly speaking, this is not a 2022 development; however, since the Bill grants a 2-year grace period for compliance, over the course of 2022 and into 2023, Ontario regulators of professions will bear the onus of removing the Canadian experience requirements from their licensing criteria, except for public health and safety exemptions.

A list of regulated professions can be found in Schedule 1 of the Fair Access to Regulated Professions and Compulsory Trades Act, 2006, SO 2006, c 31.

Employment Development #7: CERB Not Deductible From Wrongful Dismissal Damages

In Yates v. Langley Motor Sport Centre Ltd., 2022 BCCA 398, the British Columbia Court of Appeal overturned a lower court’s decision and ruled that the Canada Emergency Response Benefit program (“CERB”) benefits received during the termination notice period is not deductible from the wrongful dismissal damages. The Court of Appeal noted that broader policy considerations and the purpose of the CERB program, designed to support employees but not to give employers a windfall, support a conclusion that CERB payments should not be deducted from damages awarded.  Whether employees should pay back CERB is an issue between the government and these employees, and not between employees and their employers.

Although not binding other than in British Columbia, this appellate decision is helpful as lower courts across Canada have been divided on this issue.  We may see more appellate decisions that will settle this issue definitively.

Finally, as employment law keeps evolving, and as we emerge from the Covid-19 shadow into transformed workplaces, employers are well-advised to consult regularly with experienced counsel to ensure continuous compliance.

If you were placed on temporary layoff by your employer when the COVID-19 pandemic closures started in March 2020 and you are still not back to work, you have been constructively dismissed. You need to protect your rights immediately before you walk away with nothing.

As of July 30^th, 2022, your employer cannot use the pandemic as an excuse to keep you on long-term leave as part of the Infectious Disease Emergency Leave (“IDEL”). Some employer protections that were put in place during the pandemic are no longer valid. This opens the door to the statutory constructive dismissal under the Ontario Employment Standards Act, 2000 (“ESA”), in addition to common law constructive dismissal claims..

If you are still on temporary layoff your window for common law constructive dismissal claims and wrongful dismissal damages may be closing, which means you will have no option for legal recourse.

When a layoff occurs, there is a two-year limitation period during which an employee can pursue a constructive dismissal claim and wrongful dismissal damages. Although Ontario suspended the running of limitation and time periods in March 2020, effectively extending the limitation period for employment matters between March 16, 2020, and September 14, 2020, by six months, now is the time to act. More urgently, the court may also consider your inaction as acquiescence, which leaves you with a much shorter window to act, especially when you have not protested against the layoff.

Did your employer have the right to lay you off?

Most employees believe incorrectly that their employer can place them on temporary leave. Generally, employers are not permitted to do so absent a specific term in the employment agreement permitting them to lay off employees. If your employer laid you off, in the vast majority of cases, this would change a fundamental term of your employment. As such, you have been terminated and you are due severance and termination pay.

The question of whether the IDEL protects employers from constructive dismissal claims is making its way through the courts. The decisions in Coutinho v Ocular Health Centre Ltd.,  and Fogelman v IFG state that the IDEL did not restrict an employee’s common law right to treat a temporary layoff as a constructive dismissal and that the IDEL only covered terminations under the ESA. However, in June 2021, Taylor v Hanley Hospitality Inc., (“Taylor”) the court came to the opposite conclusion, concluding that IDEL displaced the common law and, therefore, limited a plaintiff’s common law right to treat a temporary layoff as a constructive dismissal. We understand that Ontario’s Court of Appeal has set aside the Taylor case’s order on other grounds and remitted it back for reconsideration, so there may be better guidance following the decision on this issue. In our experience, many employers are willing to negotiate a severance package, rather than rely on Taylor.

Your actions matter more than you think

As briefly mentioned above, you should also be aware that the longer you wait to dispute a temporary lay off, the larger the risk that you will be considered to have accepted it by acquiescence. For example, for employees who have been laid off since May 2020, their employer has a strong argument that they have accepted the change to the employment relationship and have not been constructively dismissed.

In addition, asserting constructive dismissal as of the date of temporary layoff can cause other issues. The employer may seek to have any wrongful dismissal damages reduced by the amount of benefits, such as CERB, that you may have received during the layoff period. Courts in Ontario have stated that CERB should not be deducted from wrongful dismissal damages, but courts in other jurisdictions have said otherwise.

What you need to do next

We recommend pursuing severance now to avoid the risk that you would be viewed to have accepted the layoff. We advise you consult an employment lawyer immediately.

You must act now if you wish to pursue wrongful dismissal damages. If you wait to act you will likely not get the outcome you want if the limitation period for your claim has expired, or your employer can establish you have accepted the lay off.

Ontario’s deemed Infectious Disease Emergency Leave (“Deemed IDEL“) period ended on July 30^th, 2022. This does not affect employees’ entitlement and employers are being held accountable and successfully sued for constructive dismissal for their employees.

Employers who relied on IDEL to put employees on leave are at immediate risk of substantial cost, as employees who are not returned to work can sue for constructive dismissal. And as a result of the Waksdale decision most contracts written before June 6 2020 are invalid. In practical terms, most employees with long term records of employment may be due up to 2 years, or, on average, 1 month per year of service under common law.

Leaving employees on indefinite leave has costly consequences when constructive dismissal is alleged.  It is important to seek advice from experienced counsel to craft a strategy to mitigate, if not eliminate, these liabilities.

Deemed IDEL came into being during the pandemic to provide relief to both employees and employers. For employers, Deemed IDEL was intended as a relief measure. Under certain circumstances, IDEL allowed for temporary reduction or elimination of employee hours and wages, without triggering a deemed termination, but with an obligation for the employer to return the employee to work after the end of the IDEL period. With the Deemed IDEL period ended, employers can no longer place their employees on leave indefinitely, even if the pandemic still impacts their business. that the Deemed IDEL period has ended, employers may still rely on temporary layoff provisions in Ontario’s Employment Standards Act (“ESA”) to continue to place employees on leave. However, there are significant restrictions on the length of temporary layoffs. A breach of these restrictions might be deemed as constructive dismissals under the ESA, and employees might be entitled to termination pay and other provisions if they claim constructive dismissal.

What should you do if your employees were on IDEL past July 30^th?

Employers who currently have employees on IDEL will need to decide whether to call these employees back to work, rely on ESA temporary layoff provisions to extend the time before calling them back to work, or terminate them to avoid a breach of the ESA. (Depending on whether employees’ benefits are continued or not during the layoff, there are two-time limits under the ESA for temporary layoffs.

What employers should know about temporary layoffs moving forward

The ESA does not create a right for the employer to temporarily lay off its employees, but sets the conditions for and duration of layoffs. However, unless an employer has the contractual right to do so, employees put on temporary layoff can claim constructive dismissal, notwithstanding the ESA temporary layoff provisions. Employers are warned to closely comply with the conditions for temporary layoffs to avoid potential costly claims.

Many parents have found themselves wondering how to balance work and child-care obligations since the COVID-19 pandemic began in 2020. Although COVID-19 intensified this issue, balancing work and child-care obligations has always been, and will continue to be, a challenge for parents.

Generally, as explained in more detail below, your employer cannot fire you due to child-care obligations. In fact, they have a duty to accommodate your child-care accommodations, which are protected by Ontario’s Human Rights Code (“Code”).

If you suspect that you have been terminated due to your child-care obligations, you should immediately contact an experienced employment and human rights lawyer as you could be entitled to both damages for breach of the Code and wrongful dismissal.

Protection under the Code

Child-care obligations are protected by the Code under family status. This means your employer must accommodate your child-care obligations up to the point of undue hardship.

However, whether your employer needs to accommodate you is contextual. The obligation to accommodate is not triggered in every instance, and it requires you to make reasonable efforts. For example, if you are asking for an accommodation due to childcare obligations, you should first make reasonable efforts to find childcare. If this proves impossible, you could ask for an accommodation.

Alternatively, if you are asking for an accommodation to attend your child’s weekly soccer game, it is unlikely that your employer is obligated to accommodate you. A key consideration is whether a failure to modify an employee’s hours or place of work would prevent them from caring for their children.

The duty to accommodate means that your employer has the obligation to change the way the workplace functions so you can fully participate in the workplace. In your case, this would mean adapting the workplace to allow you to perform both your work and child-care obligations. If you find yourself struggling to balance work and taking care of your children, you should immediately request an accommodation pursuant to the Code.

Accommodations are fluid and should be tailored to your specific situation. Common accommodations we see include:

1. Allowing you to work from home where feasible;
2. Allowing you to work alternate hours; and
3. Allowing you to take leaves from work if your child-care obligations are particularly onerous for a period of time.

Your employer must provide you with accommodations unless they can demonstrate it causes them undue hardship, and you have a legitimate reason for asking for an accommodation.  To determine if an accommodation measure creates undue hardship, both costs and health and safety risks may be considered. However, your employer cannot claim undue hardship simply because your accommodation results in some financial hardship. Rather, your employer would need to show the cost is so extreme that it seriously interferes with their business.

For example, if you can perform your work remotely, and you request this accommodation to fulfill child-care obligations, your employer cannot claim this is undue hardship. Failure to accommodate can amount to discrimination.

Your employer cannot terminate you due to child-care obligations

While your employer can always terminate you without cause, they cannot do so if it is wholly or in part due to your child-care obligations. If they were to do so, it would breach the Code, and you would be entitled to damages, in addition to the applicable wrongful dismissal damages.

If your employer is threatening to fire you because you are taking care of your children, they are likely breaching their duty to accommodate you under the Code. Further, if your employer follows through and terminates your employment due to your child-care obligations, this may not only attract damages for breach of the Code and wrongful dismissal, but possibly punitive damages as well.

Conclusion

Employers will often hide behind termination without cause to terminate employees they do not wish to accommodate. If you suspect your termination is in any way related to your child-care obligations, you should immediately consult an employment and human rights lawyer to ensure you are treated fairly.

Suspension of Federal Vaccination Mandates

As of June 20, 2022, the federal government suspended vaccination requirements in federally regulated transportation sectors and for federal government employees. The federal government maintains it will continue to follow public health advice and reinstate the COVID-19 vaccination requirements if necessary.

However, the federal government announced that it would not introduce regulations to Canada Labour Code that would make vaccination mandatory in all federally regulated workplaces. Had it done so, federally regulated employers would have certainty on this issue moving forward.

Most employers in Ontario are not impacted by this announcement because this change only applies to federally regulated workplaces. Accordingly, these changes do not mean employers should remove or repeal their vaccination policies. For the majority of Ontario employers, the Occupational Health and Safety Act (“OHSA”) outlines the obligation to take every reasonable precaution to protect employees. Moving forward, non-federally regulated employers should base any decision to remove or repeal vaccination policies on their obligations under the OHSA.

How will this impact non-federally regulated businesses?

Ultimately, in non-federally regulated workplaces it remains the employer’s decision whether to remove or repeal mandatory vaccination policies. It is also the responsibility of the employer to establish return to work practices. Some employers, such as the federal government, have indicated that their unvaccinated employees initially placed on an unpaid leave of absence will return to work. Notably, employers that wish to repeal or remove their vaccination policy can later re-introduce it if the COVID-19 situation changes.

If employers wish to keep their mandatory vaccination policies in place, they can do so. However, the federal government’s suspension of vaccine mandates weakens their position regarding unpaid leave of absence or terminations for cause due to non-compliance with their vaccination policy. This is because vaccination is no longer mandated by the federal government and, therefore, their mandatory vaccination policy may be considered unreasonable. This could result in an employee who has been placed on unpaid leave or terminated for cause successfully establishing that they were wrongfully dismissed and are entitled to pay in lieu of notice, among other things.

How will this impact federally regulated businesses?

Federally regulated employers should consult with an experienced employment lawyer to reconsider their COVID-19 vaccination policies in light of the recent changes. When assessing vaccination policies, remember the following:

1. Vaccination policies must continue to assess accommodation requests for medical or religious grounds on a case-by-case basis, and provide evidence that they have adequately engaged in the process by documenting it;
2. Employers that remove or repeal their vaccination policies should ensure they have the flexibility to seamlessly re-establish them if required by law or the changes in the COVID-19 situation;
3. Employers should consider revising their vaccination policy to be 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 policy is more likely to be consider reasonable; and
4. If appropriate, repeal and remove the vaccination policy, but keep other health and safety measures such as mandatory masking and social distancing in place.

As Canadians shift toward living with COVID-19, many employers are recalling employees back to the physical office. For some, this means working in an office environment for the first time since March 2020. This article provides preventative steps to mitigate the conflict and headaches caused by recalling employees to work, as well as solutions if an employee refuses to return to the office.

Consider why your employee is refusing to return to work

Some employees may claim the workplace is unsafe due to COVID-19 and refuse to return to the office. Employers are obligated to provide a healthy and safe workplace under the Occupational Health and Safety Act (“OHSA”). To satisfy this obligation, many employers have implemented mandatory masking and vaccination policies. However, while mandatory masking and vaccination policies may prevent some employees from refusing to work due to allegations of an unsafe workplace, it could result in costly wrongful dismissal claims if employees are terminated due to non-compliance. Balancing these obligations and liabilities is challenging, and consultation with an experienced employment lawyer is recommended.

In addition, some employees may have a human rights ground under Ontario’s Human Rights Code (“Code”) that prevents them from going back to the office, such as family care obligations, and the employer may have to provide accommodations.

Implement a remote work policy to manage the employment relationship

Many employers have implemented remote work policies that clearly set out the circumstances, if any, where an employee can work remotely. For example, if you have employees that cannot return to the office for a reason protected under the Code, the appropriate accommodation could be allowing them to work from home.

Do not make working from home a contractual term of the employment relationship

Generally, employers decide where their employees work, unless stated otherwise in the employment agreement or if the remote work arrangement was a condition of the employee signing their employment contract. Regarding the latter, for employees who worked in the office pre-COVID-19, this should not be a concern. However, act cautiously when recalling employees who were hired during the COVID-19 pandemic, especially if they signed their employment agreement based on a remote work arrangement.

Provide employees with adequate notice before recalling them to the office

Providing employees with advance notice of their recall to work is a useful tool to manage conflict. Advance notice will allow employees to make arrangements to return to work, and manage Code protected family obligations. Further, providing advance notice will give both you and your employees adequate time to consider accommodations, if necessary.

Notify your employee that if they do not return to work, they have abandoned their position

One option if your employee refuses to return to work is claiming that they have abandoned their position. Clearly communicate that it is a term of employment that your employee work at the office. If your employee refuses to do so, notify them that they have abandoned their position and terminated the employment relationship.

While this option may be appealing as you would not be obligated to provide any severance package, there is a risk your employee may claim constructive dismissal, which could lead to a costly outcome.

Consider termination without cause

If an employee refuses to return to work, absent a Code protected reason, a more cost-effective approach would be to terminate them without cause. Before doing so, you should consult an experienced employment lawyer to ensure your employment agreements have enforceable termination provisions. With enforceable termination provisions, you can limit your employee’s entitlements upon termination to the Employment Standards Act, 2000, minimums. This will often save significant costs on severance packages.

Put simply, act now.

Many employees were placed on temporary layoff by their employers when the COVID-19 pandemic closures started in March 2020. If you are still on temporary layoff your window for constructive dismissal claims and wrongful dismissal damages may be closing, which means you will have no option for legal recourse.

When a layoff occurs, there is a two-year limitation period during which an employee can pursue a constructive dismissal claim and wrongful dismissal damages. Although Ontario suspended the running of limitation and time periods in March 2020, effectively extending the limitation period for employment matters between March 16, 2020, and September 14, 2020, by six months, now is the time to act.

Did your employer have the right to lay you off?

Most employees believe incorrectly that their employer can place them on temporary leave. Generally, employers are not permitted to do so absent a specific term in the employment agreement permitting them to lay off employees. If your employer laid you off, in the vast majority of cases, this would change a fundamental term of your employment. As such, you have been terminated and you are due severance and termination pay.

The question of whether the Infectious Disease Emergency Leave (“IDEL”) protects employers from constructive dismissal claims is making its way through the courts. The decisions in Coutinho v Ocular Health Centre Ltd.,  and Fogelman v IFG state that that the IDEL did not restrict an employee’s common law right to treat a temporary layoff as a constructive dismissal and that the IDEL only covered terminations under the ESA. However, in June 2021, Taylor v Hanley Hospitality Inc., (“Taylor”) the court came to the opposite conclusion, concluding that IDEL displaced the common law and, therefore, limited a plaintiff’s common law right to treat a temporary layoff as a constructive dismissal. We understand that the Taylor case is under appeal to Ontario’s Court of Appeal, so there may be better guidance following the decision on this issue. In our experience, many employers are willing to negotiate a severance package, rather than rely on Taylor.

Your actions matter more than you think

You should also be aware that the longer you wait to dispute a temporary lay off, the larger the risk that you will be considered to have accepted it. For example, for employees who have been laid off since May 2020, their employer has a strong argument that they have accepted the change to the employment relationship and have not been constructively dismissed.

In addition, asserting constructive dismissal as of the date of temporary layoff can cause other issues. The employer may seek to have any wrongful dismissal damages reduced by the amount of benefits, such as CERB, that you may have received during the layoff period. Courts in Ontario have stated that CERB should not be deducted from wrongful dismissal damages, but courts in other jurisdictions have said otherwise.

What you need to do next

Although IDEL is set to end on July 31, 2022, and employers will no longer be able to rely on it, some employers may attempt to put employees on further leave, rather than terminate employment.

We recommend pursuing severance now to avoid the risk that you would be viewed to have accepted the layoff. We advise you consult an employment lawyer immediately.

You must act now if you wish to pursue wrongful dismissal damages. If you wait to act you will likely not get the outcome you want if the limitation period for your claim has expired, or your employer can establish you have accepted the lay off.

Employers have an obligation to ensure a safe workplace for employees. This obligation remains even as Ontario announces that masking mandates will end on March 21, 2022 and mandates are lifted across the country.

Therefore, while restrictions are being lifted, employers should be cautious about removing mask and vaccine mandates, as COVID-19 remains a public health concern. At the same time, mandatory vaccination and masking policies have faced resistance from some employees. This places employers in a difficult position where some employees will be frustrated that policies are being removed, while others will welcome it.

Consequences of removing masking and vaccination requirements

If you remove masking and vaccination requirements, you may be faced with employees refusing to work claiming an unsafe workplace. If an employee refuses work they must promptly report the reasons for their refusal to the employer.

At this stage, you could either resolve the issue by, for example, allowing the employee work from home, if possible. If the matter does not resolve, and the employee insists the workplace is unsafe, the Ministry of Labour (“MOL”) will get involved. They will investigate and make a decision, either ordering changes or not, and the worker will return to work. These investigations can be time consuming and disruptive.

Presently, many employers have already implemented masking and vaccination policies. As COVID-19 does still pose a risk, it may be wise for employers to maintain COVID-19 workplace safety measures. Although some employees may be unhappy with this, they have likely already complied with the policies and will continue to follow them.

For example, if you have a business with 20 employees, all of whom complied with mandatory vaccination and masking requirements without complaint, then it would be practical to keep your mandatory vaccination and masking policies in place, at least until there is broader societal shift away from COVID-19 policies. For example, you could follow the direction of larger firms.

Consequences of maintaining masking and vaccination requirements

On the other hand, you may find that employees are less likely to comply with COVID-19 policies as we all “learn to live with” COVID-19. This means you will need to consider the best response to employees refusing to comply. At the height of COVID-19, many employers took a firm position that non-compliance with mandatory vaccination policies justified termination with cause. This position is still untested in court, but so far it appears decision-makers will consider the context of that specific workplace and policy. If an employee refuses to continue to comply with a mandatory masking or vaccination policy, and you are considering termination, the safest approach is to terminate them without cause.

A word of caution, if you have not yet implemented COVID-19 policies, and you now intend to, you should consider whether it is truly necessary to ensure workplace health and safety. The justification for employers unilaterally implementing these policies diminishes with the risk posed by COVID-19, and with it the justification for terminating an employee with cause.

Key takeaways as we learn to live with COVID-19

In this case, timing and context is an important consideration. When COVID-19 first hit, federal and provincial governments enacted masking, and vaccination mandates. Keeping an eye on government responses will assist you in determining when, if ever, you should remove your COVID-19 policies.

However, as we have seen, COVID-19 ebbs and flows. Accordingly, while it may be safe to remove all COVID-19 policies this summer, that may not be the case next winter. Therefore, you may wish to keep your COVID-19 policies in place but add some flexibility. Moving forward, you may wish to revise your COVID-19 policies as follows:

1. Make masking requirements discretionary;
2. Make vaccination requirements discretionary;
3. Require that all new employees be vaccinated; and
4. Require that all new employees explicitly agree to the COVID-19 policies in their employment agreement.

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.