Photo of Emily Siu
Mandatory COVID-19 Vaccination Policies
Photo by Steven Cornfield on Unsplash

In our recent blog, we discussed the consequences that employees may face for not receiving government-approved COVID-19 vaccinations. We also touched on the legitimate medical or religious reasons that some employees may have for refusing or being unable to be vaccinated. In this blog, we’ll take a deeper dive into what sorts of exemptions employers should be prepared to expect (if they have not already come across them) and the steps they can take to determine whether employees have a valid request for an exemption from vaccination, along with the required accommodations. 

Types of COVID-19 Mandatory Vaccination Exemptions Employers May Encounter

Employers should keep an eye out for valid medical and religious/creed-based exemptions employees may have from vaccination. 

The College of Physicians and Surgeons of Ontario has provided some examples (of which it emphasizes there are few) of acceptable medical exemptions from the COVID-19 vaccination:
Continue Reading A Deeper Dive into Exemptions from Mandatory COVID-19 Vaccination Policies

Minimum Wage Increase in Ontario
Photo by Emil Kalibradov on Unsplash

As of October 1, 2021, minimum wage rates in Ontario increased. The increases are tied to the 2020 Ontario Consumer Price Index under the Making Ontario Open for Business Act. The general minimum wage for provincially regulated employees has increased by 10 cents – from $14.25 per hour to $14.35 per hour. The minimum wage rates for students, liquor servers, hunting and fishing guides, homeworkers, and wilderness guides have also increased. The Ministry of Labour has published a handy chart with a list of the minimum wage rates.

What about alternative pay arrangements (non-hourly, non-salaried, room and board)?

Employers should note that these rate increases also apply to employees who earn commission – these employees’ pay must amount to at least the minimum wage for each hour the employee has worked. 
Continue Reading Minimum Wage Increase in Ontario

IDEL COVID-19 Period Extended to January 1, 2022
Photo by Glen Carrie on Unsplash

The COVID-19 period for Ontario’s Infectious Disease Emergency Leave (IDEL) has once again been extended, this time to January 1, 2022. The COVID-19 period for this leave which, at its inauguration was set to end on September 4, 2020, has been extended multiple times – first to January 2, 2021, then to July 3, 2021, then again to September 25, 2021, and now into the new year. 

To Whom Does this Leave Apply?

This IDEL applies to employees who were laid off or had their hours temporarily reduced from March 1, 2020 to January 1, 2022. Employees on this deemed IDEL are exempted, under a provincial regulation that amended certain segments of the Employment Standards Act, 2000 (“ESA”), from being deemed to have been terminated. These employees are not owed ESA notice or severance pay. 
Continue Reading IDEL COVID-19 Period Extended to January 1, 2022

proof of vaccination
Photo by National Cancer Institute on Unsplash

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
Photo by João Ferrão on Unsplash

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
Photo by Jakayla Toney on Unsplash

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
Photo by Jeff W on Unsplash

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
Photo by Jeff W on Unsplash

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
Photo by Jeff W on Unsplash

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
Photo by Jeff W on Unsplash

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