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.

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.

Many employers are wondering whether their mandatory COVID-19 vaccination policies will be upheld in court. The answer is simple: it depends.

The answer depends on many factors, such as the employment relationship, the nature of the work, the content of the policy, and our ever-evolving knowledge about COVID-19.

Recent decisions in unionized workplaces may shed some light on how various factors will affect whether a mandatory vaccination policy will be upheld or not.

The actual employment relationship and the nature of work is an important factor for deciding whether a certain mandatory policy is reasonable. In a recent labour arbitration decision, United Food And Commercial Workers Union, Canada Local 333 v Paragon Protection Ltd (“Paragon“), Arbitrator Von Veh, upheld the employer’s vaccine 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 vaccine policy.

The arbitrator in Paragon also noted a previous case (St. Michael’s Hospital v Ontario Nurses’ Association) where an annual influenza vaccine and wearing of masks policy was held unreasonable, as, among other things, COVID-19 is more infectious and deadly than seasonal influenza. As the Omicron variant is grabbing headlines, this ever-evolving virus may further tilt the scale of deciding the reasonableness of a mandatory vaccine policy.

In Ontario Power Generation v The Power Workers’ Union (“PWU”) Arbitrator Murray upheld the employer’s COVID-19 vaccination policy. The policy in PWU required employees to either be vaccinated or submit to testing twice a week. The policy required the employees to bear the testing costs, and the time spent testing was unpaid. Employees who refused to comply were subject an initial leave of absence followed by a termination with cause. Arbitrator Murray concluded that disciplinary penalties for unvaccinated employees who refused to test were reasonable because it was minimally invasive. However, Arbitrator Murray noted that, due to the employer’s size, it was reasonable that they should cover the testing costs, but was not obligated to pay employees for the testing time. It appears that the approach of a combined vaccine policy will be viewed more favourably by decision makers.

The arbitrator in Bunge Hamilton Canada v UFCW, Local 175 (“UFCW”) also upheld the employer’s vaccination policy. In that case, the arbitrator considered a vaccination policy that required employees provide full proof of vaccination within 76 days. If they failed to do so, or were not vaccinated, they would be placed on an unpaid leave of absence, with the potential to be terminated with cause. Arbitrator Herman found that the health and safety risks posed by COVID-19 warranted a disciplinary measure of an unpaid leave. However, they did not go so far as to say termination with cause was justified, but only that a policy where termination with cause is possible is reasonable.

On the contrary, in another recent labour arbitration decision, Electrical Safety Authority and Power Workers Union (“ESA“), Arbitrator  Stout, found the employer’s mandatory vaccine policy unreasonable.  The arbitrator’s decision was based on factors that specifically contradicted the decision in the Paragon case. The arbitrator pointed out,

“I need only state that this award (i.e., Paragon) arises in a different context involving a different union and a different employer (a security company whose employees perform all their work at third-party sites) and specific language in the applicable collective agreement that requires employees to receive a specific vaccination required at an assigned site (see art. 24.05).”

In ESA, the content of the vaccine policy also proves to be fatal to its reasonableness. Unlike many other combined vaccine policies, where unvaccinated employees are given the choice of rapid testing, remote working, or other accommodations, the employer in ESA gave no alternative to their employees. Their policy required the employees to be fully vaccinated, unless they were exempted under human rights law. The arbitrator noted:

“I have no evidence that these concerns have manifested themselves in any actual problems in the workplace that cannot be reasonably addressed under a policy that provides for a combined vaccination or testing regime or other reasonable means… mandatory vaccinations is not the only reasonable response at this time and in these circumstances… In my view, disciplining or discharging an employee for failing to be vaccinated, when it is not a requirement of being hired and where there is a reasonable alternative, is unjust.”

Had this employer opted for a combined vaccine policy, where reasonable alternatives are available, their vaccine policy may have become reasonable. It suggests when a reasonable alternative to mandatory vaccination, such as rapid testing,  could have been available, the employer will have a hard time justifying disciplining or discharging an employee with cause simply for not being vaccinated.

More recently, in Chartwell Housing Reit (The Westmount, the Wynfield, the Woodhaven and the Waterford) v Healthcare, Office and Professional Employees Union, Local 2220 (“Chartwell”) Arbitrator Misra struck down portions of the employer’s mandatory vaccination policy permitting automatic termination due to non-compliance with the policy.  The policy stated that employees who were not fully vaccinated would be placed on unpaid leave or terminated. In Chartwell, the Collective Agreement stated the Union must agree to modifications of “existing rights, privileges, benefits, practices and working conditions” and, in this case, the employer failed to do so. Further, the policy’s specific wording permitted termination without the employer satisfying the just cause standard, which contravened the Collective Agreement. Essentially, the policy’s specific wording on termination permitted the employer to automatically terminate the employee due to non-compliance with the policy without establishing just cause. Consequently, the termination option in the policy violated the Collective Agreement. Notably, the arbitrator did not state whether failure to comply with the policy amounted to just cause.

The above decisions, while in unionized workplaces, will affect non-unionized workplaces as well but some considerations may vary. However, it is expected that the general principles will be similar that whether a vaccine mandate will be upheld depends on the specific context of the policy. It will be a case-by-case decision with no easy answers to employers.

As such, employers should exercise caution when implementing mandatory vaccination policies, especially when they are trying to terminate employees with cause for not following the vaccination policy. A vaguely drafted workplace vaccination policy or one that does not account for specific accommodations could be costly for employers.

 

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

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As employers cautiously begin reopening workplaces in the face of continued COVID-19 variants, a new reality is starting to sink in. Work from home policies, or some sort of hybrid workplace policy, will  cut down on expenses, keep employees happier with a flexible work environment, and, in some cases,  provide opportunity for increased productivity. And as the Delta Virus makes clear COVID will be with us for a long time, employers may find a remote work policy is essential to staying in business.

Can employers require employees to return to the office?

To be clear, apart from a few exceptions, employers can require their employees to go back to the workplace. If an employee does not have a good reason, such as human rights grounds which are addressed below, for not going into the workplace, it is well within an employer’s legal rights to discipline or even terminate them. However, a challenge that employers may face is that some employees prefer working from home and  if they are required to return to the workplace.

Faced with the potential of losing key employees due to a lack of flexibility, it is prudent for employers to develop a remote work policy that clearly outlines what employees can expect.

What are your workplace obligations as an employer in the era of COVID-19?

In some cases, a remote work policy may be essential to workplace safety. As an employer, you have an obligation to maintain a safe and healthy workplace. The issue of mandatory vaccinations in the workplace has become a necessary topic of discussion when it comes to workplace health and safety. While mandatory vaccination policies have been implemented by many employers across Canada, there has not been any specific guidance on this issue at all levels of government. There is a group of people, which may include your employees and customers, that are either choosing not to get vaccinated for personal reasons or cannot get vaccinated due to medical or religious reasons. In order to protect your employees, you may require employees who are experiencing COVID symptoms or are not fully vaccinated to work from home. This is especially true if you have vulnerable people (e.g., patients) in your workplace, and physical distancing and universal masking may not be sufficient to protect them. Having clear policies regarding vaccinations and/or protocols in place for what happens if an employee exhibits symptoms will also make most customers feel comfortable entering your workplace.

If your workplace can be reasonably considered unsafe or unhealthy, your employees may be entitled to refuse to work, or your customers may refuse to come to your premises.

How can a remote work policy help in the era of COVID-19?

Employers have a duty to accommodate. A remote work policy may be one of your accommodation options in this new era. For example, some employees may have a legitimate medical reason not to be vaccinated, such as they may be allergic to the vaccine, or their sincere religious beliefs may prevent them from getting vaccinated (rare as either of those situations might be). If an employer requires employees to be fully vaccinated to return to the workplace, where possible, those unvaccinated employees could be allowed to work from home. Similarly, there may be employees who need to work from home due to COVID-related reasons. For example, some employees may have to take care of their children at home because they were exposed to COVID and need to be home for a period of time to self-isolate. When these incidents happen, the employer may have an obligation under human rights laws (e.g., Human Rights Code, RSO 1990, c H.19) to provide accommodations to the employee up to the point of undue hardship, and working from home may be one of the best options. If you fail to live up to this accommodation obligation, your employees may seek legal recourse against you for damages, and if terminated, may seek to be reinstated.

How should employers prepare a remote work policy?

When preparing a remote work policy, employers should also consider certain related issues. For example, employers should consider issues such as:

• How to deal with and record working overtime or a reduced workload for remote employees.
• If certain benefits should be converted or replaced.
• How to deal with additional expenses incurred by employees for working from home.
• How to ascertain or record tardiness, absences, and leaves.
• How to collaborate when people cannot get together.

If not properly dealt with, these issues may also lead to disputes and unexpected expenses.

If you need clarification or assistance with a remote work policy or any other COVID-related workplace policies, contact Hum Law to guide you through each step.

We encourage you to contact Hum Law immediately for legal assistance on all your workplace matters.

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

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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.

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Ontario recently announced that, as of September 22, 2021, patrons will be required to provide proof of vaccination, also known as a vaccine passport, to access certain businesses and settings. Vaccine passports are intended to protect employers and employees by requiring patrons to provide proof of vaccination. Importantly, the vaccine passport regime does not apply to employees, as it is intended to create guidelines for how employers and employees interact with the public, not employers and their employees.

Employers can ensure their employees are vaccinated by implementing mandatory vaccination policies. Ontario now requires that certain businesses and settings, such as hospitals and schools, implement mandatory vaccination policies. Many employers are 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.

Through this approach, employers can ensure a safe workplace for their employees, with vaccine passports protecting employees from unvaccinated members of the public, and mandatory vaccination policies protecting employees from unvaccinated employees.

How to determine if your workplace is affected by vaccine passports

Proof of vaccination is required for patrons to access many settings, such as:

• Restaurants and bars (excluding outdoor patios, as well as delivery and takeout);
• Nightclubs (including outdoor areas of the establishment); and
• Sporting events.

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. There are also exemptions, such as:

• Customers accessing the business or setting solely to use a washroom, make a retail purchase, or pick up a takeout order;
• Children under the age of 12; and
• Customers who provide a written document that has been provided by a physician or registered nurse that states they are exempt for a medical reason from being fully vaccinated against COVID-19.

Enforcement and responsibilities in the workplace

Enforcing vaccine passports is simple in theory: patrons cannot access the business or setting without proof of vaccination. However, the burden is on businesses to ensure that patrons provide, at the point of entry, photo identification and proof of vaccination. Businesses may have some issues initially, as Ontario has not yet developed a vaccine certificate. This means that businesses will be required to ask for a patron’s vaccination receipt and photo identification. Many business owners are, understandably, frustrated at the prospect of dealing with the inevitable flood of fake proof of vaccination and exemption documents. Thankfully, Ontario has indicated that an “enhanced vaccine certificate” with a unique QR code and verification app would be available by October 22, 2021.

In the meantime, on September 14, 2021, Ontario released the regulations and guidance for workplaces to better understand how to implement the proof of vaccination requirements. The guidance document provides helpful information about the vaccine certification process. The guidance document further notes law enforcement should be contacted in the event of harassment or threats of acts of violence.

Ultimately, this means that individuals must be fully vaccinated and provide proof of vaccination before entering many settings. If your workplace falls outside of Ontario’s proof of vaccination policy, you are still permitted to refuse service to individuals who are unvaccinated, subject to an important caveat: businesses in Ontario are subject to Ontario’s Human Rights Code (“Code”), and therefore cannot refuse service on discriminatory grounds. 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.

Penalty for failure to enforce vaccine passports

Failure to comply with the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020, including the failure to enforce vaccine passports, could result in a business being fined. If charged under Part I of the Provincial Offenses Act (“POA”), fine amounts are $750 for individuals and $1,000 for corporations.

Maximum penalties based on a prosecution under Part I or Part II of the POA include fines of up to $100,000 and up to a year in jail for an individual; up to $500,000 and up to a year in jail for an individual who is a director or officer of a corporation; and up to $10 million for a corporation.

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

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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.

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