I think we can all agree that the world is a little bonkers lately –  it seems like things are changing and getting more serious by the minute. Between the time I thought I was finished writing and ready to press “publish” Ontario declared a state of emergency. 

We are getting lots of questions from employers about what to do in the face of various impacts from COVID-19, as more and more measures come into place and make it harder for us to go about our daily lives and work.  

For some, businesses are shutting down and contracts to provide services are being cancelled. This is causing employers to think about how to scale back and how to be fair to their employees while also staying afloat. 

On the employee side, many now have unavoidable child care responsibilities as a result of the shutdown of schools and daycares, that are impacting their ability to work – even from home. 

Many employers are able to keep going and are implementing work from home where they can, but there are many who cannot work from home and who we need to go out in public. In addition to health care workers, think about those who keep our shelves stocked at the grocery store or the pharmacy. These employees are likely going to be expected to continue working. 

We have put together a wide-ranging FAQ for employers with answers to a lot of common questions. 

We will also be addressing COVID-19 issues on our Webinar this week, which you can watch live by registering here (on Wednesday, March 18 at 10:30 AM EST) or replay on our YouTube channel. 

For today, we are going to focus on the announcements by the Ontario government regarding proposed changes to the Employment Standards Act. You can read the Ontario news release here.

Job Protection for Employees Impacted by COVID-19

On March 16, the Ontario government announced that it intends to introduce legislation to provide job-protected leave to employees impacted by COVID-19. 

We have not seen the proposed legislation yet and the legislative process has a few steps (which normally take months!), but we anticipate that the legislation will pass and likely as quickly as bureaucratically possible. No one wants to seem unhelpful in the wake of a pandemic! 

The legislature is sitting on Thursday and the Premier’s goal is to have everything pass in one day! 

Job security or job-protected leave just means that the employer will not be able to terminate an employee if they need to take a leave for one of the COVID-19 related reasons. It does not mean that the employer must continue to pay the employee. A job-protected leave we are probably all familiar with is parental leave. You can’t take away someone’s job because they take a parental leave –  but you also don’t have to pay them while they are on that leave.

It’s unclear what the length of the job protection will be and likely a very open question, as no one likely knows how long someone may need to be away from work due to the pandemic. 

Who Will the Protections Apply To?

According to the news release, the leave will protect workers from termination in the following situations:

  • The employee is under medical investigation, supervision or treatment for COVID-19.
  • The employee is acting in accordance with an order under the Health Protection and Promotion Act.
  • The employee is in isolation or quarantine.
  • The employee is acting in accordance with public health information or direction.
  • The employer directs the employee not to work.
  • The employee needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.

We will be interested to see if the situation of “employer directing the employee not to work” will include employers who are directing employees not to work because they are unable to provide work – they work in a restaurant that is closed, for example – or if this will be limited to employees who are asked not to come in due to symptoms. 

No Note Required

The proposed legislation would also make it clear that employees will not be required to provide a medical note to support their right to take a leave. The idea here being the medical system should not be gummed up by employees (who likely should be staying home) seeking doctors’ notes. This effectively means that anyone who asserts their right to take this leave will be able to take it, no questions asked. 

Changes Retroactive to January 25, 2020

Should the legislation pass, the amendments to the Employment Standards Act will be retroactive to January 25, 2020, the date that the first presumptive COVID-19 case was confirmed in Ontario.

Stay tuned for updates on the rapidly evolving legal landscape in the face of the pandemic. 

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 16, 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.

Workplace privacy is an evolving and somewhat muddy area of law. In Ontario, our key employment law statutes, the Employment Standards Act and the Occupational Health and Safety Act, are silent on the issue of privacy. Yet surveillance is ubiquitous. Employers often have cameras in the workplace, which end up providing them information about their employees, whether they were seeking it or not. Employers and employees often wonder, is this legal?

PIPEDA and Video Surveillance

The Personal Information Protection and Electronic Documents Act (PIPIEDA) is a privacy law that applies to private-sector organizations across Canada that collect, use or disclose personal information in the course of commercial activity. PIPIEDA defines a commercial activity as any particular transaction, act, or conduct, or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.

PIPEDA speaks to workplace privacy in that it broadly requires that an organization’s need to conduct video surveillance be balanced with the individuals being surveilled right to privacy. 

Cameras in the Workplace

The first thing an employer should consider when contemplating installing a camera to monitor a workplace is the purpose. In general, there should be a good reason to conduct surveillance. For example, is there a well-founded suspicion that someone is stealing? Are there safety or security concerns? 

Once a purpose is identified employers should consider if there are less intrusive means to meet that same purpose. If so, video surveillance may not be appropriate. 

Cameras Where?

In determining where the camera should go, and what they should be filming, employers should consider the employees’ reasonable expectations around workplace privacy and also keep the purpose in mind. A camera should not be installed in the bathroom, for example, or anywhere else where an employee has a reasonable expectation of privacy. In an open office environment employees likely will not have an expectation of privacy because they are in a common area.  

Audio recording employees without their knowledge could run an employer amock of the s.184 the Criminal Code. So surveillance should not include sound. 

Notice to Employees

Unless providing notice would somehow defeat the purpose – which may be the case if attempting to catch a thief – see s.7(1)(b) of PIPEDA – employees should be provided with notice of the surveillance and details as to what the surveillance will be used for. Employers should also develop privacy and surveillance policies.

Then What? 

If employees are well informed about the use of workplace cameras (placed appropriately and for an acceptable purpose) and employers catch misbehaviour, they are generally going to be free to use that information. 

For more on this topic, check out our past post. Do you have questions about workplace privacy? Get in touch for a consultation. 

Sometimes employees just kind of stop coming to work, leaving employers scratching their heads and wondering where they stand and what to do.

Absence Due to Illness

In many cases when an employee stops coming to work they will tie their absence to illness. Ever get this text? “hey can’t come in today, am sick.” Often an employee will call or text or email in sick for the first few days and then stop communicating. 

The connection to illness complicates the matter for employers, who have a duty under the Ontario Human Rights Code (“the Code”) to accommodate employees with disabilities up to the point of undue hardship. 

Is an illness a disability? Not necessarily. A cold or flu will generally not be considered a disability under the Code, but this doesn’t mean that employers can just decide an employee who is off sick for a few days has left their job or quit. 

Requesting More Information

Employers have a right to information from an employee about their health status and accommodation needs as they relate to the job. If an employee asserts that they are ill and stop coming to work, it is reasonable (and legal) for an employer to request a doctor’s note.

Employers should make the request detailed so that the doctor’s note can be useful to them. While employers are not entitled to private medical information, such as a diagnosis, they are entitled to know when the doctor expects the employee will be back at work, what accommodations they might need and so on. 

The key to respecting an employee’s private health information is to ensure that the information requested is connected to the employee’s ability to do their job. For example, if a job requires an employee to drive a vehicle for 8 hours a day, asking if the employee has any restrictions with respect to driving a vehicle for 8 hours a day is perfectly reasonable. 

And Getting No Information

So employers can request medical information, but it’s not uncommon for employees not to provide it. Then what? Employees are required to co-operate with their employer with respect to their accommodation needs. 

In order to be accommodated, which in the instance of illness due to absence will mean having their job held for them until they are well enough to come back, employees need to:

  • Request the accommodation – “hey, I need time off” 
  • Demonstrate the need for the accommodation and provide specifics of that need – provide a medical note with details of prognosis, restrictions etc. 
  • Co-operate with respect to accommodation – the employee won’t necessarily get the exact accommodation they want 

True Ghosting – What if the Employee Just Doesn’t Respond? 

If an employee truly just ghosts, an employer may be able to take the position that the employee has abandoned their job. The legal test for abandonment is as follows: 

Do the statements or actions of the employee, viewed objectively by a reasonable person, clearly and unequivocally indicate an intention to no longer be bound by the employment contract?

Where an employee does not respond to an employer, does not keep in touch and fails to provide medical evidence or updates, the test for abandonment may be met. Where an employee is deemed to have abandoned their job, it’s as if they have quit and they are not entitled to any notice or severance. In all cases, employees still need to be paid out for the time they worked and any accumulated, but unused, vacation. 

If you’re an employer with a ghosting employee, get in touch for a consultation. We can help you sort through your options.  

Happy Black History Month Canada! Black History month has us thinking about equality and what workplaces can do to increase their equality and diversity. We all know by now that diversity is good for business. 

The Canadian law, through various devices and broadly speaking, attempts to promote equality and inclusion. A question that often comes up when employers are thinking about increasing diversity in their workplaces is if favouring minorities when hiring is really treating everyone equally. Doesn’t equality mean we treat everyone, black, white and purple the same? Actually, no! Read on. 

Treating Everyone the Same Does Not Necessarily Lead to Equality 

We don’t all start off at the same starting line in life. When we measure people by the exact same metrics often those who are from groups that are historically disadvantaged will get left behind when competing against their more privileged peers.  However, in Ontario, favouring minorities for a position could still land you in breach of the Ontario Human Rights Code, because you would be discriminating based on race (or any other prohibited ground) in your hiring decision. 

Enter affirmative action! The Code allows employers to develop “special programs,” which will allow them to discriminate based on a protected group, where the objective is to promote the success of a historically marginalized group. 

Special Programs Under the Code

Section 14 of the Code states that it is not discriminatory to put in place a program if it is designed to: 

  • relieve hardship or economic disadvantage
  • help disadvantaged people achieve, or try to achieve, equal opportunity or
  • to contribute to the elimination of the infringement of rights under Part I 

A program must satisfy at least one of these points to be a special program under the Code.

In order to discriminate in this way, employers need to apply to the Human Rights Commission to designate their program as a “special program” under the Code. 

Special Employment

Section 24 of the Code also allows for discrimination with respect to employment where an organization is primarily engaged in serving the interests of persons identified by a prohibited group of discrimination. In these instances, identification with a specific Code-protected group is a genuine qualification for the job. For example, a woman’s shelter would be justified in discriminating in hiring by only hiring women because they are a special interest organization serving women. 

Takeaways 

Creating real substantive equality in our workplaces is definitely tricky. The Ontario Human Rights Commission provides lots of useful information, including this guide. If you’d like to work with us to create a special program or increase diversity in your workplace, get in touch to book a consultation. 

What’s an Employee Handbook?

An employee handbook is a document where an employer can keep all their policies, procedures and other information an employee needs to have. Often, it forms a part of the employee’s contract, and employees are required to review the handbook and sign their copy to acknowledge their understanding. 

Why Do You Need an Employee Handbook?

A good employee handbook sets a business up for success, in terms of setting expectations and managing the workforce. Handbooks give employees the lay of the land. They set out the corporate culture, cover off legal obligations (like mandatory policy requirements) and communicate information like sick day allotments, benefits, and what to do if you’re running late, all in one place. 

But I Only Have a Few Employees!

Smaller employers who manage with the do-it-yourself approach to HR especially need handbooks! Without an HR person to go to, the handbook can fill a vital role in communicating workplace information and policies to the workforce.

Staying Current

Laws change and business strategies evolve. It can be tough to keep up and make sure that what is communicated is still current – hello Bill 148 rollercoaster! Employers should make sure that the handbook is part of a regular business health check-up. The outdated handbook may give employees more or less information than the law requires which can cause problems.

Handbooks capture the details, but they can also be given the force of contract – enhancing the clarity and certainty of the employment relationship. Whatever legal route is taken it should be deliberate. 

If you would like to engage SpringLaw for a consultation about creating or revising your employee handbook, get in touch!

It looks like 2020 might be the year where Canada catches up in the realm of privacy and data protection laws. These will likely have a ripple effect throughout the workplace.

Mandates Letters

In December 2019, PM Trudeau sent mandate letters to the Minister of Innovation, Science and Industry, the Minister of Justice and the Minister of Canadian Heritage asking them to get to work on enhancing the protection of Canadians’ personal information. 

The mandate letters focused on asking the various Ministers to work towards advancing Canada’s May 2019, Digital Charter (“the Charter”). The Charter sets out ten principles intended to address and respond to the impact of the digital revolution on Canadians and the Canadian economy. The government’s website sets out these principles and various action items in an accessible way on their website. Here are a few highlights:

  • Universal Access 
  • Control and Consent 
  • Safety and Security 
  • Transparency, Portability and Interoperability 
  • Strong Enforcement and Real Accountability 

Enacting these principles will require some legal teeth, which is where the mandate letters come in. 

Warnings from the Privacy Commissioner

The Office of the Privacy Commissioner of Canada warned in his 2018-2019 Annual Report to Parliament on the Privacy Act and the Personal Information Protection and Electronic Documents Act that “the world is now passing us by” when it comes to privacy protections. 

Rapid change has never been a forte of governments and it has evidently been difficult for governments the world over to keep pace with the changes the digital age has brought. We are reminded of the bizarre questions asked by some members of the US congress during the Facebook hearings over Cambridge Analytica. Some members were still clearly in the stage of digital infancy, learning to use their email…

What to Expect

So what can we expect to come from Trudeau’s mandate letters? Much of Canada’s patchwork privacy law speaks to best practices – these could be replaced with enforceable rights and real obligations. Changes could include the right for privacy commissioners to conduct privacy inspections, issue orders and more easily enforce financial penalties. 

While no definite timeline has been set for re-vamping Canada’s privacy legislation, doing so has been called “a top priority.” Public consultations are expected and “targeted stakeholder engagement”  has begun. 

Data breaches are becoming more and more common. While complying with changing privacy laws will remain essential, organizations may also want to think beyond legal compliance and be proactive when it comes to privacy and data protection. 

The Wuhan Novel Coronavirus (or 2019-vCoV) is a public health emergency in Canada with confirmed cases in Ontario. This has led many employers to ask how they should manage their employees’ concerns, while still trying to operate “business as usual”.  On the one hand, employers are obligated to provide a healthy and safe work environment, while on the other, they must respect an employee’s privacy and ensure that their responses to any health or safety concerns do not violate human rights legislation.

Stay Well Informed

Because an employer’s legal obligations continue during a public health emergency, clear and accurate information and communication are vital. Employers should remain informed of the latest public health information and communicate essential information and specific expectations to their employees. For example, relaying the importance of handwashing and hand sanitizing, while maintaining well-stocked supplies for doing so. 

Depending on employee circumstances, employers may need to implement more specific precautionary measures to protect the workforce. Such measures should be reviewed and updated as official sources of information change. Because of the uncertainty around the Coronavirus, a cautious and conservative approach will be defensible by employers, so long as they act reasonably, and base their decisions on official sources of information. 

The following websites should be used as official sources for up-to-date information:

World Health Organization

Public Health Agency of Canada 

Ontario.ca

Public Health Ontario

Toronto Public Health

Collaborate With Employees

Given that, in some cases, the Coronavirus has led to a spotlight on individuals’ personal health status, and the stigmatizing of the Chinese community, employers should approach the issue with discretion and sensitivity. Employers should also designate an appropriate person within their organization to field employee questions and concerns. 

While ultimately the employer will decide what precautionary measures are required and appropriate, a two-way conversation with an employee about appropriate precautionary measures is advisable whenever possible. For example, if an employee has travelled to an affected area, discuss collaboratively what a productive period of remote work could look like, and how such a modified work arrangement might be communicated to co-workers. Based on recent official sources, symptoms of the virus may present themselves up to 14 days after exposure, therefore it is reasonable that an impacted employee be asked to work remotely for 14 days. In some cases, the employee should be required to produce medical documentation confirming their clearance to return to the workplace. 

Employers may benefit from a strategic discussion with employment law counsel to develop precautionary measures or incident responses that are compliant with health and safety, privacy, and human rights legislation. If this is the case for your workplace, please get in touch.

On January 1, 2020, changes were implemented to the Simplified Procedure under Rule 76 of the Ontario Rules of Civil Procedure, as well as in Small Claims Court. The changes were brought to increase access to justice for individuals and businesses by reducing the cost of resolving disputes.

New Limit in Small Claims Court

From now on, all claims of $35,000 or less are brought to Small Claims Court, an increase from the previous $25,000 limit. The small claims process is much more streamlined than a proceeding in Superior Court – after pleadings are closed, the parties schedule a settlement conference, and if a matter does not settle, a hearing is scheduled. Starting an action in Small Claims Court is also less risky for the potential plaintiff – if a plaintiff loses, the worst-case scenario is that this plaintiff will have to pay 15% of the award, a maximum of $5,250 in Costs to the other party. This limited risk can be attractive to plaintiffs with limited resources. 

New Limit for Simplified Procedure

All claims higher than $35,000 and under $200,000 must now follow the Simplified Procedure, an increase from the previous $100,000 limit. Other changes to the Simplified Procedure include capping Costs awards to $50,000, capping disbursements to $25,000, implementing expedited deadlines, and limiting the trial to 5 days, among other changes. 

Final Thoughts

Given the general apprehension surrounding litigation, these recent changes will be attractive to potential plaintiffs wanting more certitude on legal fees, potential liability, and time, and may result in more actions being commenced by those who may have otherwise just let it go. Plaintiffs with claims in the higher dollar figure ranges may choose to lower their claims in order to fall under the Simplified Procedure or the Small Claims Court. This means more actions being brought to Small Claims Court or under the Simplified Procedure. Given the capped Costs liability, we may see plaintiffs less likely to settle and more matters being taken to trial. In turn, this new reality could impact the way employers address current or potential disputes with their employees. Only time will tell!

If you’re looking for counsel on a litigation matter, please get in touch!

We often get contacted by employees who are members of unions and employers looking to better understand the pros/cons when faced with unionization. What does it mean to be in a union?

Collective Agreement vs. a Contract

One big difference between unionized and non-unionized employees is that the employment relationship with the employer is governed not by individual contracts but by a collective agreement. The collective agreement will contain the terms and conditions of employment applicable to all employees who are covered by that collective agreement. Generally, this means that all employees within certain classes will be treated the same, paid the same etc.

Non-unionized employees have individual agreements with the employer (employment contracts) and can, therefore, have individualized terms of employment. In a non-unionized workplace, an employer can pay employees who do the same job different amounts, let them have different work schedules etc. 

Collective vs. Individual Negotiations 

Because a unionized employee’s relationship with the employer is governed by the collective agreement, if they want a raise, this would have to be negotiated through the collective agreement process and this would mean a raise for everyone in their class. The union would also have to determine whether or not a raise was worth asking for. Unionized employees generally cannot get special or individualized treatment from the employer. 

A non-unionized employee can negotiate on their own behalf and an employer is allowed to treat employees differently (subject of course to disallowed human rights considerations). If a non-unionized employee wanted a raise, they could just ask for one and the employer could grant one, generally without it having larger ramifications for the wider workforce. 

Advancement

Unions are all about fair and equal treatment. Collective agreements will usually contain specific provisions by which an employer is allowed to promote an employee. Seniority is generally very important and in many cases, the employer will have to give the promotion to the most senior applicant, provided all applicants are equally qualified. 

Perks like vacation scheduling, shift selection and overtime opportunity are generally allocated in order of seniority, with the most senior employees getting the first picks. 

Check out some union reality highlights from this job ad for a City of Ottawa Bus Operator: 

  • “expect no summer vacation for up to 10 years” 
  • “It has not been uncommon for new operators to work weekends for 5 to 10 years”
  • “Junior Operators will work 12 out of 14 days for the next 3 –5 years”

The ad caught media attention for its honesty. These are the realities of a unionized workforce – the perk being that after 10 years, once you get the first pick of vacation, you’ll always have summers off. 

The Power for All vs. The Power of One

After learning that unionized employees can’t ask for their own raise or get a vacation in the summer for 10 years you might be wondering why anyone would want to be in a union. Unionized employees generally have a lot more power in the employment relationship, and a lot more job protection, than their non-unionized friends. 

Unionized employees, for example, can generally only be terminated for cause or where a position is really and truly eliminated. Non-unionized employees can generally be terminated for any reason, as long as they are provided with notice. 

Unionized employees have their union to go to bat for them if they are treated unfairly by the employer. A non-unionized employee will generally have to pay a lawyer out of their own pocket if they need legal help in their employment relationship. 

Because unionized employees act as a group, they have the power to seriously disrupt the employer’s operations (ie. STRIKE) and therefore they have more power in the employment relationship as a collective than just one employee. 

What if my union isn’t doing what I want?

We often hear from employers facing potential unionization, as well as employees who feel that their union isn’t representing them fairly. We are occasionally retained by some of these individuals to provide legal advice behind the screens, but an individual unionized employee cannot be represented by their own lawyer in their relationship with the employer. They must be represented by the union. The only way around this fact is by making a “Duty of Fair Representation Complaint” to the Labour Relations Board. It’s a big deal. 

If you’d like to book a consult to chat about your employment relationships, be it unionized or non-unionized get in touch!