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proof of vaccination
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On September 1, 2021, the Ontario government announced that, beginning September 22, 2021, Ontario residents will be required to provide proof of full COVID-19 vaccination (meaning that both doses of an approved COVID-19 vaccine must have been administered at least fourteen days prior), in the form of a printout or PDF receipt of vaccination status, plus photo identification, in order to enter certain non-essential business sites. A vaccine verification app and QR code, to be used by various businesses and organizations, are currently under development. 

Where Proof of Vaccination Will and Will Not be Required in Ontario 

The vaccine certificate program requires that non-essential businesses restrict entry to their premises to those who have valid proof of vaccination, as outlined above. Non-essential businesses include restaurants (indoor dining only); nightclubs (indoor and outdoor areas); theatres, music festivals, concerts, and cinemas; night clubs, strip clubs, bathhouses, and sex clubs; racing venues; casinos and gaming establishments; fitness and recreational centres (except youth recreational sport); and meeting spaces.
Continue Reading Vaccine Passports: Which Businesses will Require Them and Who is Exempt?

employees duty to mitigate
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Employees who have been wrongfully dismissed from their employment have a legal duty to mitigate. In other words, these employees must look for new employment if they wish to seek a termination payment from their former employers. Regardless of whether an employee successfully secures new employment prior to the end of their notice period, the court will still look to see that the employee took reasonable steps to find alternative comparable employment. If the court is not satisfied that the employee has made proper efforts to do so, it may reduce or deny the termination pay the former employer would otherwise be ordered to pay to the employee. A recent decision, Lake v. La Presse (2018) Inc., 2021 ONSC 3506, underlines the repercussions an employee could face if they fail to take such reasonable steps to mitigate their damages.

The Case of Lake v. La Presse (2018) Inc.

In this 2021 Ontario Superior Court case, the Court reduced a former employee’s common law/reasonable notice period from eight to six months due to the employee’s failure to mitigate their damages. 
Continue Reading Failure to Mitigate and Reduction of the Notice Period

Mandatory COVID-19 Testing
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To enter Canada, all travellers over the age of 5, including those who are fully vaccinated, are required to provide proof of a negative COVID-19 test. Samples to test for COVID-19 can be collected through a nose swab, throat swab, or saliva sample. Many employers are now mandating, or considering mandating, that employees get COVID-19 testing, either once, or at regular intervals, in order to enter the workplace, or in some cases, to continue working. What does the law have to say about policies addressing mandatory COVID-19 testing?

Can an Employer Legally Require Employees Undergo COVID-19 Testing?

To answer this question, it is critical to consider whether the intrusiveness of the COVID-19 test is reasonable when weighed against the objective of the policy requiring such a test. 
Continue Reading Legality of Mandatory COVID-19 Testing

Employee drug and alcohol testing in the workplace
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Last week, we discussed various options for accommodations that employers can consider for employees with substance dependence-related disabilities. We then delved into general rules around drug and alcohol testing of employees and briefly outlined some differences between drug and alcohol tests. In the last part of our series on substance addictions at work, we will touch on whether employers can conduct drug tests on specific employees, as well as random drug testing in the workplace. We’ll also cover some alternatives to drug and alcohol testing and highlight the human rights issues at play when it comes to the subject of employee substance use. 

Drug & Alcohol Testing of a Specific Employee

Due to concerns over potential intrusion on privacy and human rights issues, drug and alcohol testing is generally justified in Canada where employees are in safety-sensitive positions and one of the following situations applies:
Continue Reading Substance Addictions at Work: A Guide for Employers – Part 4/4

addiction accommodations at work
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Last week, we discussed the employer’s duty to accommodate employees with disabilities, which includes drug and alcohol dependence. Employers have a duty to accommodate employees up to the point of undue hardship. This is a high bar!  So employers need to give a lot of thought to what they can possibly do before deciding it’s not possible to accommodate an employee.  Employers will normally have at least a few options for employee accommodations, ranging from leaves to addictions support programs, which we will discuss below. We will also cover drug and alcohol testing in this blog. 

Leaves

Very often, the accommodation that an employee suffering from an addiction requires is a leave. Many medical notes recommend this option; should an employer encounter such a note, the employer can put the employee on an unpaid leave with continuation of benefits. The fact that the leave is unpaid can sometimes incentivize employees to recover and return to work sooner rather than later. The timeline of these types of leaves can be very long, unless the doctor makes clear that the employee will never be able to do the job again. In these scenarios, the employer may have to accommodate the employee to work in another position within the company. 
Continue Reading Substance Addictions at Work: A Guide for Employers – Part 3/4

addiction accommodations at work
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Last week, we discussed challenges that employers face when dealing with substance dependence and addictions challenges in the workplace. We ended off discussing the employer’s duty to inquire. 

An employer has a duty to inquire as to whether an employee has disability-related accommodation needs when the employer is aware or reasonably ought to be aware that there may be a relationship between a disability and the employee’s job performance. An employer who observes unusual or troubling behaviour has a duty to assess the situation and look into whether the employee’s behaviour may be the result of a disability before the employer imposes any sanctions on the employee. 

An employer has a duty to raise concerns with the employee and to advise the employee that accommodations may be possible if their behaviour is a result of a disability, for example. 
Continue Reading Substance Addictions at Work: A Guide for Employers – Part 2/4

Substance Addictions at Work
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Many employers will at some point encounter drug and alcohol issues in the workplace. Under the Canadian Human Rights Act, substance dependence is considered a disability. An addiction to drugs or alcohol also constitutes a disability within the meaning of the Ontario Human Rights Code

An addiction should only become an issue for the employer, however, if it affects the employee’s work performance. Employers have a right to expect a certain level of performance and competency from their employees, but employees have a right to be accommodated for their disabilities to the point of undue hardship. 
Continue Reading Substance Addictions at Work: A Guide for Employers – Part 1/4

Paid Infectious Disease Emergency Leave
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We’ve discussed the unpaid Infectious Disease Emergency Leave (IDEL) in a number of our previous blog posts. On April 29, 2021, the Ontario government made updates to this leave and amended the Employment Standards Act, 2000 (ESA), introducing the Ontario COVID-19 Worker Income Protection Benefit. In addition to the unpaid IDEL, employers are now also required to provide eligible employees with the new paid IDEL – more specifically, up to $200 a day for up to three days – for reasons related to COVID-19. The three days need not be taken consecutively. 

What are the eligible reasons for taking the paid IDEL? 

Paid IDEL is available for certain reasons related to COVID-19, including:
Continue Reading The New Paid Infectious Disease Emergency Leave (IDEL)

using social media to vet new hires
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This is Part 2 of our two-part series on social media in hiring. Click here for Part 1!

There is the personal and there is the professional, and never the twain shall meet. At least that was once the prevailing attitude towards work life and private life. In a progressively interconnected world, the personal and the professional are becoming increasingly intertwined. But are there problems, particularly legal problems, that arise from the fusion of these two aspects of one’s life? What sorts of employment-related legal issues, for instance, might employers (and employees, by extension) encounter in the hiring process if they choose to review candidate social media profiles? We’ve covered some issues in Part 1 of our “social media in hiring” series. Below are some further thoughts worth considering.
Continue Reading Part 2 – Caution to Employers Using Social Media to Vet Potential New Hires

reviewing candidates’ social media
Photo by Austin Distel on Unsplash

This is Part 1 of our two-part series in social media in hiring. Stay tuned for Part 2 next week! 

Today, there are more users on social media than ever before. Scores of people everywhere in the world are posting personal information online. This information is being consumed by billions of people on a daily basis, some for more personal reasons, others less so. Countless employers have, for instance, rapidly shifted to incorporating the extra step of reviewing potential candidates’ social media activity into the hiring processes. Considering the relative novelty of social media technology, employers should brace themselves for increasing litigation around this in relation to employment issues in the years to come. 
Continue Reading Caution to Employers Using Social Media to Vet Potential New Hires