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Hilary Page brings a diverse legal background to her employment law practice. She started her career summering with a litigation boutique in downtown Toronto and then articled in-house at a municipality, where she developed an interest in workplace and human rights law.

Unvaccinated Employees and Mandatory Vaccination
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Both employers and employees are asking questions related to mandatory vaccinations and consequences for employees who don’t get them. Here we run through some of those FAQs!

Q: If vaccinations are deemed to be “mandatory” for workers, are there any legal exemptions?

A: Yes, in some cases there will be legal exceptions to a job requirement that employees be vaccinated. These exceptions come from the Ontario Human Rights Code (the “Code”), which prohibits discrimination in employment based on protected grounds. The protected grounds likely to be engaged with respect to a vaccination requirement are disability and creed. If the exemption is based on a medical reason, it will fall under disability. Religious reasons will fall under creed.
Continue Reading Unvaccinated Employees and Mandatory Vaccination

mandatory workplace vaccine policies
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Last week, the federal government announced that it will be making vaccinations mandatory for federal employees and also for those working in some federally regulated industries related to travel. You can read the news release here.

The government intends to require vaccinations for federal employees by the end of September. It projects that vaccinations will be required in the federally regulated transportation sector (airlines, rail, cruise ships) by the end of October. The requirement will also apply to travellers.

The Public Service Alliance of Canada — which is the union representing the majority of impacted workers —  is apparently on board with this move.
Continue Reading The Start of Mandatory Vaccinations in Canada?

Is remote work ending?
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Is remote work ending? Many of our employer clients are making plans for a return to in-person work. Likely many employees have mixed feelings about a return to the office. Sure, not wearing real pants has been nice, but many miss the in-person social aspects of work, and would maybe welcome a little bit of separation from their families, annoying cat, or their neighbour’s lawnmower. Today we will discuss some return-to-work issues.

Can I Require My Employees to Return to Work?

Employers can definitely tell their employees that they are required to return to the office. How strong a stance employers want to take on this will depend and some flexibility will likely be warranted. 
Continue Reading The End of Remote Work?

IDEL and Constructive Dismissal
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The Ontario Superior Court has ruled once again on the right of an employee to assert a constructive dismissal in light of the O. Reg. 228/20: Infectious Disease Emergency Leave (“the Regulation”) under the Employment Standards Act, 2000 (ESA). In the latest decision, the court ruled that the Regulation does not preclude an employee from asserting a common law constructive dismissal. 

As discussed in previous posts, under the Regulation neither a reduction in the employees hours of work or wages constitute a constructive dismissal under the ESA if they occur during the COVID-19 Period. The COVID-19 Period keeps changing on us, but it currently runs from March 1, 2020 to September 25, 2021.  There have been conflicting decisions about whether the Regulation also removes an employee’s right to assert a constructive dismissal under the common law. 
Continue Reading Another Ruling on the IDEL and the Employee’s Right to Pursue Common Law Constructive Dismissal

severance and employer payroll threshold
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A new ruling from Ontario’s Divisional Court has changed which employees will be entitled to severance pay. While the law has been mixed, it was generally the case that the $2.5 million payroll threshold for the purposes of calculating severance pay applied to Ontario payroll only. The Divisional Court has now ruled that global payroll should be considered. 

What’s Severance Pay?

In Ontario, employers with a payroll of more than $2.5 million must, upon termination or severance of employment, pay severance pay to employees with five or more years of service. This aspect of the Ontario Employment Standards Act, 2000 (ESA) increases the legal minimums employers are required to pay to long service employees significantly. Under the ESA, notice of termination caps out at 8 weeks, whereas severance pay can be up to 26 weeks. 
Continue Reading Heads up Multinational Employers! A Change to the $2.5 Million Payroll Threshold Calculation.

IDEL and constructive dismissalsLast month we blogged about the  Ontario Superior Court’s decision in Coutinho v. Ocular Health Centre Ltd. (Coutinho) when the court ruled that an employee placed on Ontario’s Infectious Disease Emergency Leave (IDEL), established by O.Reg 228/20 (the Regulation), could still bring an action for constructive dismissal at common law. The plot has thickened with the release this month of a contradictory decision in Taylor v. Hanley Hospitality Inc. (Taylor).

In the Taylor decision, the court considered the same issue – is the employee precluded by the Regulation from bringing a claim for constructive dismissal under the common law, when their hours are reduced or eliminated as a result of the pandemic? While the court in Coutinho concluded no, the court in Taylor has concluded yes. 

Where does that leave us? Because these two decisions are from the same level of court, neither has more weight than the other for later judges who might be deciding cases on similar facts. When decisions of the same level conflict, we need a higher court to weigh in – in this case, that would be the Ontario Court of Appeal. 
Continue Reading Good News for Employers: A New Decision On Constructive Dismissal and the IDEL

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The COVID-19 Period in Ontario’s Infectious Disease Emergency Leave has been extended until September 25, 2021. Prior to this change, the COVID-19 Period was set to end on July 3, 2021. 

What does the end of the COVID-19 Period mean?

The end of the COVID-19 Period is relevant to employers who reduced the hours of their employees due to COVID-19 reasons. In many cases, these employees were “laid off,” meaning they work no hours at all. 

Typically, a layoff can only last for a specific number of weeks. The introduction of the “deemed IDEL” and the extension of the COVID-19 Period have made it possible for these employees to remain off work/laid off for much longer, without a termination being triggered. 

If you were an employer keeping the July 3, 2021 end date in mind, you can forget that and add September 25, 2021 to your calendar.
Continue Reading IDEL COVID-19 Period Extended to September 25, 2021