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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

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?

Workplace harassment and the employer’s duty to correct it
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Occupational health and safety legislation in Ontario protects workers from the risk and harm of harassment at work. Under the Occupational Health and Safety Act (OHSA) employers have a legal duty to guard against and correct workplace harassment no matter how small the team. 

Here are some things to keep in mind regarding workplace safety and the employer’s obligations. 

Harassment Can Go By Many Names

Bullying is harassment. Employees sometimes think that the form of harassment they are facing is less serious than the harassment that OHSA targets. But any euphemism for harassment, like bullying or mocking, doesn’t make it less harmful to workplace health and safety. Even lighthearted bullying can count as harassment under OHSA and the employer will have a duty to prevent and act on it. OHSA says that:
Continue Reading Workplace Harassment: the Employer’s Duty

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

COVID-19 Vaccine FAQs for Employers
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More than 13 million people in Canada are now fully vaccinated against COVID-19, yet we’re finding employers are more and more worried about those who still aren’t and don’t plan to be. 

Below, we answer some of the questions we are hearing from employers and set out what we think they should be considering.

1. Can I implement a mandatory vaccination policy in my workplace?

The question is really would it be reasonable to do so? This will depend on the context of the workplace and what other safety measures can be appropriately taken. If there isn’t a high risk of infection in the workplace, it won’t be reasonable. If the work is performed without exposure to risk, for instance by working remotely, then the answer is easier—it’s absolutely unreasonable.
Continue Reading COVID-19 Vaccine FAQs for Employers

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

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