Working Safely From Home

What are the employer’s obligations to an employee when an employee is not working in the office? With so many employees now working from home, employers’ health and safety obligations need to be reexamined. 

The Occupational Health and Safety Act and Working From Home

In Ontario, section 3(1) the Occupational Health and Safety Act (“OHSA”) states that it “does not apply to work performed by the owner or occupant or a servant of the owner or occupant to, in or about a private residence or the lands and appurtenances used in connection therewith.”

So, in regular people speak, this means that if your employee is working in their own home OHSA does not apply. 

In some sense this makes sense, but in other ways, it doesn’t. An employer cannot be expected to come into an employee’s home and evaluate risks, nor be expected to assume liability for the safety of their worker in an environment – the worker’s home – that they have no control over. 

Employers – even if offices where there may not be obvious health and safety issues like noxious substances or big machines – are generally required to make sure that exits are clear, that file boxes aren’t going to fall on anyone etc. These are the types of safety issues that could, presumably, also pose risks to workers who are in their own homes. 

Workplace Violence and Harassment

The application of the violence and harassment provisions of OHSA makes more sense in a home environment. Workers who work from home are still expected to work with their colleagues, clients etc. In many cases, these interactions will likely be similar to face to face interactions one may have in an office – just less the risk of inappropriate touching. Workers could still be bullied or harassed virtually or over the phone. This can happen just as easily around the watercooler as on the company Slack channel. 

Direction from Case Law

While direction from decision-makers is sparse, two decisions offer contradictory direction with respect to the application of OHSA to people working from home. 

The Workplace Safety Insurance Appeals Tribunal (the “WSIAT”) stated in Decision No 2249/16, 2016 ONWSIAT 2410 that the “OHSA does not apply to work performed by an owner in a private residence”. In this case, the WSIAT was required to determine whether modified work offered to an injured worker to do at home was reasonable and safe, in spite of the fact that the work would not be covered by OHSA because it would be completed at home. The WSIAT found that the fact that work would not be covered by OHSA did not mean it was not safe. 

This decision contrasts with an Ontario Labour Relations Board (the “OLRB”) decision Watkins v The Health and Safety Association for Government Services. This case involved allegations of workplace harassment and reprisal under OHSA by an employee who “worked remotely from his home office, but also travelled as part of his duties.” The OLRB allowed the complaint to proceed to a hearing. No non-application of OHSA argument was made. OHSA does apply to work done outside of a private residence, even if it is done outside of the office. For example, OSHA applies when an employee is travelling for work, attending conferences, working on a client site etc. Perhaps the fact that this worker travelled as part of his duties brought his complaint safely under OHSA.  

Takeaways

As it stands OHSA likely does not apply to work done at home. However, given the unprecedented number of employees now working from home, and the lack of clear jurisprudence, this could change.

Employers should consider how to ensure safe working conditions for their employees who are working at home. While employers obviously are not going to be doing home visits to make sure there are no cords to trip on or boxes about to fall on anyone’s head, they can do things like ensure that workers are being adequately supervised, even when working remotely. A clear and reasonable remote working policy can take an employer a long way. 

You can access SpringLaw’s complimentary Remote Worker Policy here

If you’d like to book a consult to talk about remote working issues in your workplace, get in touch.  

Answers to COVID-19 FAQs from employers – April 1 update

Answers to frequently asked questions from employers regarding COVID-19 – the impact, rules and best practices for addressing the global coronavirus outbreak in the workplace. (Last Updated April 1, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

We’re 3 Today! How We Built Our Virtual Law Firm

I launched SpringLaw 3 years ago. It was on April Fool’s Day 2017 and a friend of mine questioned whether I should delay it by a day so that people would not mistake my launch of a virtual law firm as a joke. My assistant Sandi and I proceeded to launch aways, figuring we’d be in the clear by noon that day.

Fast forward to three years later: we are in a very different world. Even before the current virus pandemic, the ease and comfort of communicating and working through tech have moved forward at such a fast clip.

Over the last few weeks (yes, the virus has only been here for a few weeks!), the world has been forced to face remote working and to engage in the online economy. For those of us already there, it’s been no big deal, but it’s not a system you can just whip up overnight.

Here are my thoughts on the key ingredients to a successful online law firm.

How to Set Up a Virtual Law Firm

A good tech and video conferencing set-up makes remote work very similar to working in a bricks & mortar office. Let me repeat: very similar. Not inferior, not “almost as good”, not “until we can meet up after social distancing is over”.

I have always believed a tech-based virtual firm can be as good or better than a traditional in-person firm, as long as there is careful planning, intentional systems of accountability, both formal and informal communications systems, a true open-door policy when mentoring juniors, and a deliberate mapping out of tech that syncs up seamlessly together.

Connect People

We are currently a team of 8, in order of appearance: HilaryJaniceMarnieJessicaDanielleDeidre and Amanda. My team is by far the most valuable asset of SpringLaw. It remains my daily focus and priority and no law firm can succeed without constant attention to its people. My team inspires me daily, teaches me, brings great ideas to the table, and is the backbone of SpringLaw’s future.

We are on the google platform, have various chat rooms, daily video calls, a mandatory weekly all-team video call to talk through legal issues, quarterly in-person meetups for bonding and strategy talks, an annual overnight retreat, and daily telephone and in-document collaboration.

We’ve become giphy professionals (Sally Triangle being my fav win shoutout gif) and the day to day humour, fun and emotional support are the backbone of the firm. I want people to want to come to work, to feel motivated and inspired by our colleagues, and to always feel valued on our team.

More Inclusive

If planned out properly, the deliberate communications and collaboration systems can amount to more inclusiveness in the office, more regular check-ins, and more 1:1 facetime between mentors and mentees. Gone are the cliques and clubs of a traditional firm, where a lot of the mentoring happens at lunch in the food court or when a partner takes a particular shine to someone he sees as his successor. Women are usually on the losing end of that approach, regardless of how many golf lessons we take or sports scores we memorize. Introverts and nose-down lawyers who want to get out of the office instead of doing the post-5pm debriefs and war storytime also benefit from a more organized, online system.

A law firm is about people, about our learning environment, staying up to date on the law, developing practical legal skills and having the safe space to make mistakes and grow. This has never just happened by wandering through the halls and “absorbing” learning. People will always get lost in the shuffle in that traditional system. A deliberate online system can really help plug people directly into the warp core of the firm and not get lost on the sidelines.

Whether it’s our current articling student Deidre, our 2019 student Sherifa, our junior colleague Oren who worked with us in 2019, or our current mid-level lawyer Danielle, having standing weekly meetings to review files and be available for questions builds confident, skilled lawyers. Our senior lawyers Hilary and Marnie each participate actively in mentoring, supporting the team and just being super nice people to newer lawyers in the firm. This is no different in a traditional firm, but because we don’t just bump into each other in the hallways, our scheduled interactions ensure regular and frequent internal coaching.

Work Product Collaboration

Aside from the formal and informal mentoring, being able to work directly in documents with colleagues in real-time, while on a video or phone call brings collaboration to a new level. Rather than sitting across the desk from a senior partner, watching him or her revise your draft with a red pen, then sending it over to an assistant to do up, then email or save that draft as another version (was it version 2 or 2b or the one with the new name? or new date?), you just sit virtually side by side and work on it together, often while on a video or telephone call at the same time.

We can do edits together, hammer through rush jobs faster, see and talk through each other’s revisions for teaching moments, and save so much time. Working remotely across Ontario means our systems assume we will not see each other and builds in digital connection and systems. Making all of your client documents, communications, files and resources paperless and available to all will make your collaboration seamless and efficient.

Clients Dig It

“But I really want to go meet my lawyer in their fancy office in person” – said hardly any 21st-century client ever.

When a person seeks out legal help, they are usually at a moment of crisis or at the least, have a big expensive problem to solve. In that pressing moment, does your client really want to pack up all their paperwork and files, get into a car or on the subway, find their way in the PATH or parking lot, go into a beautiful, expensive looking lobby, be greeted with expensive coffee to keep them occupied while they wait in that lobby wondering how much of their hourly bill goes to the fresh flowers on the reception desk, and then make their way home or back to work afterwards in traffic and hassle?

Other than at litigation proceedings, we do not meet clients in person and have had to turn away around 3-4 people in the last 3 years because of that. However, we’ve gained many, many more clients because of our virtual set up and our ability to reach clients without geographic restrictions.

If the whole point is to talk to a lawyer and be advised on an issue or documents, why not just email the docs and have a video call? It saves the client so much time, they can sit in the comfort of their own home or convenience of their office. If you focus on making your intake process as digital as possible, then meeting up with a lawyer the same day is often possible. Clients don’t want to wait around until next week’s appointment anymore. They do, however, typically want to combine the digital onboarding with a personal check-in, usually by phone.

Our Administrative Secret Sauces

When building out a virtual firm, the nature of the admin roles shifts. I don’t need any front line assistants to type out my letters or file my emails. We focus more on what admin professionals we need to support our clients and our team in a tech-integrated manner.

Our Client Services Manager, Jessica, is our secret sauce to ensuring the digital process doesn’t get in the way of a personal touch, and to build trust with potential clients looking for a lawyer. Our Office Manager, Janice, is the secret sauce for anyone with invoice or billing related issues and is the brains and talent behind so much of our firm’s systems, financial strategy, HR, tech set up and pretty much everything else.  Our Project Manager, Amanda is our secret sauce for supporting our team, organizing our in-person meetings and building out our online solutions.

I realize there are areas of law where the client doesn’t have the tech skills or resources to access the law online. This is a serious A2J issue we’ll collectively need to figure out, but not a concern for most of your typical clients already in the pipeline.

The Clients Changed Years Ago Anyway

I’ve had old-school lawyers approach me at law gatherings (yes! I do still go to things in person!) and say you cannot replace the eye to eye in-person experience. Those same people are now bragging about their (3 week-old) Zoom skills and how effective their online services are. Change is hard for humanity, but the sooner lawyers realize that their clients pivoted years ago, the sooner we’ll get out of our ivory towers where we think our services are so fundamentally different or more profound than any other serious personal or business issue out there.

What clients really want is cost-effective, efficient, relevant, practical, down-to-earth, personal and real legal advice. Having tech and digital support for all of that is a win-win for growing your firm and serving your clients in a way that better resonates with most people out there in the real world.

COVID-19 has ushered in a new reality that, for some, will be a permanent change. For others, a welcome acknowledgement that remote working is just no biggie.

Thank you to all of our clients, friends and family for all of your support during our first 3 years. Here’s to 30 more!

Answers to COVID-19 FAQs from employers – March 30 update

Answers to frequently asked questions from employers regarding COVID-19 – the impact, rules and best practices for addressing the global coronavirus outbreak in the workplace. (Last Updated March 30, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

New Programs for Employees and Employers During the COVID-19 Crisis: the Canada Emergency Response Benefit and the Canada Emergency Wage Subsidy

COVID-19The measures introduced to protect us all from COVID-19 have had a huge economic impact on individuals and businesses. The federal government has been rolling out – and changing – various relief measures over the past few weeks. 

Today we will outline two new measures which will likely be helpful to many of the businesses and individuals impacted: the Canada Emergency Response Benefit and the Small Business 75% Wage Subsidy. 

An Alternative to EI: The Canada Emergency Response Benefit

The Canada Emergency Response Benefit (CERB) was announced on March 25, 2020. It is an alternative form of loss of income benefit. 

The CERB will provide $2,000 a month for up to four months (16 weeks) to workers who have somehow lost their incomes as a result of the COVID-19 pandemic.

Some differences between this benefit and EI:

  • It will be the same amount for everyone – $500 a week 
  • It will last for a maximum of 16 weeks 
  • You don’t have to qualify for EI to get it, meaning… 
    • It will be available to the self-employed
    • It will be available to contractors 

Who qualifies? In order to qualify for this benefit, an individual will have to have lost their income because of COVID-19. A loss of income could result from being unable to work due to illness or caregiving responsibilities, or because contracts or work hours have been cancelled, and likely other reasons. Employees who are unable to work because their workplace has been closed, for example, will also be able to get this benefit. 

We do not have details about this benefit yet, but the feds say that applications will be available in early April

Payments will begin within 10 days of applying and can be retroactive to March 15, 2020. 

Support for Small Businesses: Canada Emergency Wage Subsidy – 75%

On March 27, 2020, the federal government announced new supports for impacted small businesses, among them a new 75% wage subsidy. On March 30, 2020, PM Trudeau stated that employers should bring laid-off employees back, with the help of this subsidy, wherever possible. 

Qualifying businesses will be able to access this benefit for up to 3 months. Eligibility criteria will be available before the end of the month – so presumably today or tomorrow. We expect that employers will need to demonstrate a significant dip in revenue due to COVID-19. The benefit will be retroactive to March 15, 2020. 

Currently in place, is a 10% wage subsidy, up to a maximum subsidy of $1,375 per employee and $25,000 per eligible employer. 

Eligible employers must be a non-profit organization, registered charity, or a Canadian-controlled private corporation AND have an existing business number and payroll program account with the CRA on March 18, 2020, AND pay salary, wages, bonuses, or other remuneration to an employee.

Canadian-controlled private corporations are only eligible for the subsidy if their taxable capital employed in Canada for the preceding taxation year, calculated on an associated group basis, is less than $15 million.

Businesses receive this subsidy by reducing their remittances of income tax withheld on their employees’ pay.

Check out additional supports for businesses here

Parting Thoughts

Stay tuned for updates on our blog and access our CODIV-19 resources. We are constantly updating our resources as new information becomes available. 

If you’d like to book a consultation to speak with us about your unique situation we are here to help! Get in touch

COVID-19 FAQs for Employers – March 26 update

FAQs for Employers – Frequently asked questions by employers needing more information on the impact, rules and best practices for addressing the global coronavirus outbreak. (Last Updated March 26, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

Recent Suspension of Hearings, Limitation Periods and Procedural Time Periods

On March 20, 2020, the Ontario government made an order under section 7.1 of the Emergency Management and Civil Protection Act to suspend limitation periods and procedural time periods. The suspension is retroactive to March 16, 2020.  

The suspension is a response to the recent declaration of emergency in Ontario due to the Covid-19 outbreak, which caused the courts and administrative tribunals to close their doors. All hearings will be rescheduled and timelines for all types of proceedings are suspended for the duration of the emergency, subject to the discretion of the court, tribunal or other decision-makers responsible for the proceeding. 

What Does This Mean for our Case?

What does this mean if you’re currently involved in a proceeding? It means that if your opposing party fails to follow the timelines, there will be no consequence. This will inevitably cause significant delays in many cases. If both parties are willing to move the matter forward, courts and tribunals are making efforts to hear matters virtually, over the phone or in writing. 

Parties may decide to use the recent order to their advantage by further stalling matters – in other cases, the financial backlash from the pandemic may incite parties to settle more quickly and put an end to their proceeding. 

While we know litigation can be a most effective tool in certain situations, we anticipate the current court and tribunal status may motivate parties to figure out a resolution outside the formal process. We have been approached by various mediators experienced with online dispute resolution and hope the current environment will finally push such innovative approaches forward as a legitimate option, arming parties with tech and convenience to solve their dispute. 

Status of Courts and Workplace Tribunals

Ontario Superior Court of Justice 

  • All regular operations are suspended until further notice.
  • All civil matters scheduled to be heard after March 17, 2020, are adjourned, including telephone and videoconference appearances, unless the presiding judicial officer directs otherwise.
  • Urgent matters will be heard during the suspension, which includes matters relating to public health and safety and Covid-19, as well as urgent civil motions and applications and outstanding warrants.

Small Claims Court

  • All matters are suspended until further notice, including trials and settlement conferences, and including telephone and video conference hearings.
  • Limited urgent matters will be heard, including matters relating to outstanding issued warrants.

Human Rights Tribunal of Ontario (“HRTO”)

  • All in-person hearings have been postponed, to be rescheduled to a later date.
  • The HRTO will consider alternative hearing options (such as written and telephone hearings) where feasible, in order to try and minimize disruption to hearings.

Ontario Labour Relations Board (“OLRB”)

  • All in-person mediations and hearings scheduled between now and  April 14, 2020, are cancelled. The OLRB will continue to assess the need for the cancellation of hearings scheduled after April 13th.
  • Mediations will be held by teleconference or by email
  • Previously scheduled hearings may be held over the phone or in writing.

Canada Industrial Relations Board (“CIRB”)

  • All in-person hearings and meetings scheduled between now and May 31, 2020, will not be held as planned. 
  • The CIRB will contact parties on a case-by-case basis about alternative methods to conduct hearings.

Ontario Court of Appeal

  • All scheduled appeals are cancelled until April 3, 2020. 
  • Urgent appeals will be heard based on written materials or remotely.
  • Non-urgent scheduled appeals until April 3, 2020, will be heard in writing.

If you have any questions about these recent changes, get in touch to book a consult.

COVID-19 FAQs for Employers – March 23 update

FAQs for Employers – Frequently asked questions by employers needing more information on the impact, rules and best practices for addressing the global coronavirus outbreak. (Last Updated March 23, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

Ontario’s New Infectious Disease Emergencies Leave

On Thursday, March 19, 2020, the Ontario Legislature passed Bill 186, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020 (“the Bill”). 

The Bill amends the Ontario Employment Standards Act (ESA) adding new job protection for employees affected by COVID-19. This job protection is retroactive to January 25, 2020. 

What is the Leave and Do I Still Have to Pay My Employees?

The new leave allows eligible employees to not come to work, and keep their job, in the circumstances set out below. 

Employees who are not at work because they are using this leave provision do not have to be paid. In many cases, they will be entitled to EI. Employees will remain entitled to their benefits while off under this leave.  

If an employer terminated or laid off an employee who had asserted a right to this leave, the employer would be violating the ESA which protects an employee’s job in these circumstances.

How Long Does the Job Protection Last?

The right of the employee to not come to work, and be on this leave, lasts for as long as the declared state of emergency (under section 7.0.1 of the Emergency Management and Civil Protection Act) lasts.

Who Does the Leave Apply To?

Below you will see a long list describing who exactly is entitled to take this leave. The short version is that when there is a declared state of emergency, as there is now in Ontario, pretty much anyone who cannot come to work for some reason related to that state of emergency (self-quarantined as directed, taking care of someone who is sick, taking care of kids because daycares are closed etc) is entitled to the leave.  

The amendments entitle eligible employees to a leave of absence without pay for the following reasons:

  • Because of a declared emergency under section 7.0.1 of the Emergency Management and Civil Protection Act AND

    • an order applies to him or her under section 7.0.2 of the Emergency Management and Civil Protection Act,
      • orders include things like prohibiting travel or movement, closing public and private spaces
    • because he or she is needed to provide care or assistance to any of the following individuals:
      • The employee’s spouse.
      •  A parent, step-parent or foster parent of the employee or the employee’s spouse.
      •  A child, step-child or foster child of the employee or the employee’s spouse.
      •  A child who is under legal guardianship of the employee or the employee’s spouse.
      •  A brother, step-brother, sister or step-sister of the employee.
      •  A grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse.
      •  A brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee.
      •  A son-in-law or daughter-in-law of the employee or the employee’s spouse.
      •  An uncle or aunt of the employee or the employee’s spouse.
      • A nephew or niece of the employee or the employee’s spouse.
      • The spouse of the employee’s grandchild, uncle, aunt, nephew or niece.
      • A person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met.
      • Any individual prescribed as a family member for the purposes of this section.
    • because of such other reasons as may be prescribed; or
    • because of one or more of the following reasons related to a designated infectious disease:
      • The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
      • The employee is acting in accordance with an order under section 22 or 35 of the Health Protection and Promotion Act that relates to the designated infectious disease.
      • The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
      • The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
      • The employee is providing care or support to an individual (as listed above) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or daycare closures.
      • The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
      • Such other reasons as may be prescribed.

What Proof Does My Employee Need to Assert this Leave Entitlement?

An employer may require an employee who takes this leave to provide evidence reasonable in the circumstances and at a time that is reasonable in the circumstances to substantiate their entitlement to the leave. An employer cannot require an employee to provide a certificate from a qualified health practitioner (doctor, nurse etc.) as evidence.

What this reasonable evidence might look like is unknown, but it’s pretty safe to say that any employee who asserts an entitlement to this leave will get it. Right now we know that there is a state of emergency, we know that people are being told to stay home, to self-quarantine etc, that schools and daycares are closed and that the parents need to look after their children. Likely requiring an employee to provide any evidence under current circumstances would be unreasonable. 

Can I Make My Employees Take this Leave?

Generally, your employee will need to meet the above criteria to take advantage of this leave and it will be up to the employee whether they want to go on this leave or not. Employers can, however, direct an employee not to attend work due to a concern about the spread of the infectious disease, in which case the employee may be placed on unpaid leave.

Can I Terminate or Lay Off Employees on this Leave?

If your employee is unable to attend work for one of the prescribed reasons – they are sick, in quarantine, stuck in another country, taking care of kids while schools are closed etc. – then terminating their employment or laying them off would be a violation of the ESA. 

Employees on this leave will be entitled to return to their jobs at the end of the leave. Once they are no longer entitled to the leave (and the job protection provided by the leave), they may be terminated or laid off, however, we encourage you to get legal advice prior to issuing a layoff or a termination, particularly where it intersects with an ESA leave.  

Please visit our Resources page for further updates and information on the impact, rules and best practices for addressing the global coronavirus outbreak in your workplace.

COVID-19 FAQs for Employers – March 18 update

FAQs for Employers – Frequently asked questions by employers needing more information on the impact, rules and best practices for addressing the global coronavirus outbreak. (Last Updated March 18, 2020).

Further free resources can be found here.

Should you need legal advice on how to manage your workplace during the COVID-19 outbreak, please get in touch.

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