To wrap up 2021, we have highlighted key developments in Canadian labour and employment law, with a focus on Ontario:

  1. Bill 27 – Working for Workers Act: On December 2, 2021, the Ontario government passed the Working for Workers Act, 2021, (the “Act“) which introduces significant changes to Ontario’s employment law, including:
    • A Right to Disconnect from Work Policies: Employers subject to the Employment Standards Act, 2000 (“ESA“) with 25 or more employees must have a written policy which outlines employees’ right to disconnect from work. The term “disconnecting from work” means not engaging in work-related communications (g. emails, calls) and not sending or reviewing any messages, so that employees are free from the performance of work outside of normal working hours. Employers have six months from December 3, 2021 implement the policy.
    • No Non-Compete Agreements: Employers subject to the ESA are prohibited from entering into non-compete agreements with employees. Non-compete agreements are those that prohibit the employee from working for or running a competitive business after the employment relationship has ended.

There is an exception to the prohibition on non-competition agreements in the event of a sale or lease of a business and for executive-level employees.

This amendment to the ESA is deemed to be in force as of October 25, 2021, and all non-compete agreements entered into before this date will remain unaffected. Non-solicitation, confidentiality, and assignment of intellectual property agreements are still permissible.

The Act brings about a number of additional changes that will be relevant for employers which are fully summarized here.

  1. Ontario severance pay obligations are based on global payroll: In Hawkes v Max Aicher (North America) Limited (“Hawkes”), Ontario’s Divisional Court ruled that the $2.5 million payroll threshold for triggering the severance pay provisions under the ESA are based off of an employer’s global payroll. This means that many employers who were not paying severance pay will now have to do so.

Please see our full blog on the decision here.

Continue Reading Top 10 Canadian Labour & Employment Law Developments of 2021

Background

The federal government passed Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code on December 17, 2021. While Bill C-2 focused on providing support for reasons specifically related to COVID-19, Bill C-3 enhances paid sick leave and bereavement leave under the Canada Labour Code (the “CLC”) not specific to COVID-19 reasons.

Paid Sick Leave

Employees that are subject to the CLC are eligible to take 3 days of paid sick leave if they have completed 30 days of continuous employment. If employees have completed more than 60 days of continuous work, employees are eligible for one day of paid sick leave at the beginning of each month, up to a maximum of 10 days. If employees do not take all of their paid days in a calendar year, they can carry forward each day of leave to the following calendar year. However, each day that is carried forward will count toward the 10 days that can be earned in that new year.

This leave can be taken in multiple periods or all at once. However, employers can require that each period of leave is not less than one day. Also, employers can request that employees provide a certificate issued by a health care practitioner indicating their inability to work during the leave, if employees take five or more days of paid sick leave, or 3 or more days of unpaid leave. Employers have no more than 15 days from when the employee returns to work from a medical leave to request this certificate.

Bereavement Leave

Eligibility for unpaid bereavement leave is expanded by providing leave up to 8 weeks if an employee has experienced the death or stillbirth of their child, or their spouse or common-law partner’s child. The leave may be taken from the date of the death or stillbirth, until 12 weeks after a funeral, burial, or memorial service occurred, whichever is later. For employees experiencing the death of another member of their immediate family, eligibility for this leave remains at up to 10 days.

Key Takeaways

The amendments to the CLC under Bill C-3 are awaiting proclamation. In the meantime, federally-regulated employers should take note of the enhanced leaves of absence available for employees and ensure their current policies reflect the amendments. Throughout the pandemic, there has been increasing attention on paid sick leave. British Columbia has recently introduced a permanent paid sick leave program, while provinces like Ontario have implemented temporary leaves for reasons specific to COVID-19. We will continue to monitor whether additional jurisdictions in Canada follow suit of the federal government and provinces such as British Columbia.

Background

Just before the end of 2021, the Canadian Government passed Bill C-2, An Act to provide further support in response to COVID-19. Amongst other things, the Bill introduced the Canada Worker Lockdown Benefit Act, amended eligibility requirements under the Canada Recovery Benefits Act, and amended the Canada Labour Code to update leaves of absence related to COVID-19.

Key Features of Bill C-2

The enactment of the Canada Worker Lockdown Benefit Act (the “CWLBA”)

The CWLBA provides monetary relief for workers that have been affected by a COVID-19 lockdown. The CWLBA provides workers that have been subject to a declared lockdown for at least 14 days with a lockdown benefit of $300 a week. To be eligible, workers must not have quit their employment or voluntarily stopped working, unless it was reasonable to do so. Also, workers must not have failed to return to work upon an employer’s request, failed to resume self-employment when reasonable to do so, or declined a reasonable offer to work. If a worker refused to comply with a COVID-19 vaccination requirement and, as a result, lost their employment, were unable to perform self-employment work, or had a reduction in income, the worker is not eligible for the benefit. Workers may apply for the benefit between October 24, 2021 and May 7, 2022.

Amendments to the Canada Recovery Benefits Act (the “CRBA”)

The CRBA is amended to extend the eligibility of the Canada Recovery Sickness Benefit to May 7, 2022. Additionally, the maximum number of weeks that the sickness benefit is payable to a person is extended from two to six weeks, unless a higher number is fixed by regulation.

The Canada Recovery Caregiving Benefit is also extended to May 7, 2022. The maximum number of weeks that the caregiving benefit is payable to a person and persons residing in the same household is extended from 42 to 44 weeks, unless a higher number is fixed by regulation.

Employees can receive benefits from either the CRBA or the CWLBA, but not both.

Amendments to the Canada Labour Code (the “CLC”)

The CLC is amended by reintroducing a leave of absence for reasons related to COVID-19. Employees can take a leave of absence for up to 6 weeks if they are unable to work because (i) they have contracted or might have contracted COVID-19; (ii) they have underlying conditions, are undergoing treatments, or have contracted other sicknesses that would make them more susceptible to COVID-19; or (iii) they have self-isolated due to COVID-19.

An employee is eligible for a leave of up to 44 weeks if they cannot work because they must care for either a child under 12 years of age or a family member who requires supervised care, for reasons related to COVID-19.

The leaves of absence may be taken in multiple periods or together, but employers may require that each period is not less than one day. Employees intending to take this leave are required as soon as possible to give their employer written notice of why they are taking the leave and the length they intend to take. Employers are permitted to request that employees provide a written declaration supporting the reasons for taking the leave of absence.

Takeaways

While employees should take note of the new lockdown benefit and the amended recovery benefit, federally-regulated employers should be aware of the amendments to the CLC and ensure their current policies and practices are updated to address the new leaves of absence. Employers should note that on request, employees on the COVID-19 leave are entitled to be informed of every employment, promotion, or training opportunity the employee qualifies for and that arises during their leave of absence. Importantly, employers are prohibited from dismissing, suspending, laying off, demoting or disciplining an employee because the employee intends to take or has taken a leave of absence under this section. When making decisions relating to promoting or training the employee, employers are prohibited from taking the leave or intention to take the leave into account in their decision-making. However, if employees return from leave and are unable to perform the work they previously performed before their absence, employers are able to assign employees to a different position, with different terms and conditions of employment.

Measures to curb the spread of COVID-19 are continuously evolving. We will continue to monitor changes and provide updates accordingly.

On January 3rd, 2022, the Ontario government announced that, in response to the dangers of the COVID-19 Omicron variant, the province is temporarily moving back into a modified Step Two of its Roadmap to Reopen. This is effective Wednesday, January 5, 2022 at 12:01 a.m., and will last for at least 21 days, subject to trends in public health and health system indicators. These measures continue to affect Ontario’s employers, and include:

  • Reducing social gathering limits to five people indoors and ten people outdoors.
  • Limiting capacity at organized public events to five people indoors.
  • Requiring businesses and organizations to ensure employees work remotely unless the nature of their work requires them to be on-site.
  • Retail settings, including shopping malls, permitted at 50 per cent capacity.
  • Personal care services permitted at 50 per cent capacity and other restrictions. Saunas, steam rooms, and oxygen bars closed.
  • Closing indoor meeting and event spaces with limited exceptions but permitting outdoor spaces to remain open with restrictions.
  • Closing indoor dining at restaurants, bars and other food or drink establishments. Outdoor dining with restrictions, takeout, drive through and delivery is permitted.
  • Restricting the sale of alcohol after 10 p.m. and the consumption of alcohol on business premises or settings after 11 p.m., with delivery and takeout, grocery/convenience stores and other liquor stores exempted.
  • Closing indoor concert venues, theatres, and cinemas. Rehearsals and recorded performances are permitted with restrictions.
  • Closing museums, galleries, zoos, science centres, landmarks, historic sites, botanical gardens and similar attractions, amusement parks and waterparks, tour and guide services and fairs, rural exhibitions, and festivals. Outdoor establishments permitted to open with restrictions and with spectator occupancy, where applicable, limited to 50 per cent capacity.
  • All publicly funded and private schools will move to remote learning starting January 5 until at least January 17, subject to public health trends and operational considerations.

The official announcement, along with an overview of restrictions can be found here. The modified regulation with the full list of mandatory health and workplace safety measures can be found here.

Employers should carefully review the new requirements and apply them to their business as necessary. For example, all employees must perform remote work if possible. If attendance at the workplace is legally permissible, stringent safety protocols must continue to be applied and, if possible, meetings should be held via phone or video call instead of in person. Additionally, employers should take this opportunity to review and update their COVID-19 occupational health and safety procedures to ensure that they are taking all reasonable measures to protect workers from COVID-19 in light of the unprecedented threat from the Omicron variant.

Employers should continue to pay close attention to the latest public health restrictions and guidance to understand how they affect their business. If you have any questions about what the current restrictions mean for your business, please contact our team.

Background

On December 9, 2021, the Ontario Government filed a regulation that extended the COVID-19 Infectious Disease Emergency Leave (“Deemed IDEL“) and the temporary measures previously introduced by O. Reg. 228/20: Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (the “ESA“) until July 30, 2022. Further details of these measures were reported in our previous blog post from June 22, 2021.

On December 9, 2021, the Government also extended the temporary paid sick leave available for reasons related to COVID-19 until July 31, 2022. We reported further details on this leave in our blog post from April 30, 2021.

Deemed IDEL

The Deemed IDEL introduced the “COVID-19 Period”, which began on March 1, 2020 and was originally set to expire on September 4, 2020. The end date of the COVID-19 period has now been extended for the fifth time to July 30, 2022. This extension means that non-unionized employees who are not performing their duties, are working reduced hours, or are receiving reduced wages due to COVID-19 can remain on Deemed IDEL, without an employer’s termination and severance obligations under the ESA being triggered. If employers temporarily reduce or eliminate an employee’s hours of work or reduce their wages, the Deemed IDEL allows these actions during the COVID-19 period to not be considered a constructive dismissal under the ESA.

Paid COVID-19 Sick Leave

The Government introduced the temporary sick leave on April 29, 2021, requiring employers to provide employees with up to three paid days for reasons related to COVID-19. These reasons can include when an employee is waiting for COVID-19 test results or when an employee is required to care for a family member experiencing COVID-19 symptoms, for example. The temporary leave, also known as the Ontario COVID-19 Worker Income Protection Benefit, was originally set to expire on December 31, 2021, but has now been extended to the summer. This means that employers are able to continue seeking reimbursement from the Workplace Safety and Insurance Board (the “WSIB“) for up to $200 per day if eligible employees are taking the leave.

Key Takeaways

If the COVID-19 period ends this coming summer, the ESA’s typical rules on layoffs and constructive dismissals will be re-triggered. As a reminder, employees’ common law rights continue to apply, as the IDEL regulation only amends the statutory rules on layoffs and constructive dismissals.

Additionally, employers should keep in mind that employees are still eligible to take the paid COVID-19 sick days in addition to the unpaid emergency leave. However, employers that already offer at least three paid sick days to employees are not required to provide employees with an additional three days of paid leave. The leave is meant to top-up entitlement when an employer provides less than three paid sick days. As a reminder, employers should file applications for reimbursement within 120 days of the date on which paid leave was provided to an employee.

Restrictions originally put in place as a temporary measure are now still engaged almost two years later. With new variants of concern and climbing COVID-19 infection rates, workplace laws and minimum protections are continuously evolving.

We will continue to monitor changes and provide updates accordingly.

And we thought 2020 was a doozy! In terms of continuing challenges, unprecedented questions and shifting legal landscapes, 2021 delivered.

Between maintaining business continuity and keeping your workforce safe, we know there’s been little time to track the rapidly changing labour, employment, and human rights law landscape in Canada.

This two-part webinar series is designed to bring Canadian in-house counsel and human resources leaders up to speed on the top labour, employment and human rights law developments of 2021 and to prepare them for what’s on the horizon in 2022. Join us for content-rich presentations and practical takeaways, provided in two 1 hour sessions.

Our January 19 webinar will focus on mandatory COVID-19 vaccinations. Among other topics, we will cover:

  • Implementing mandatory vaccination polices and contractual provisions
  • Human rights considerations
  • Privacy considerations
  • Occupational health and safety considerations
  • Key differences between unionized and non-unionized workplaces
  • What does fully vaccinated mean now? The impact of future booster shots
  • Case law updates

Date: Wednesday, January 19

Time: 10:00 am to 11:00 am ET

Click here to register for Part 1: Focus on Mandatory COVID-19 Vaccinations.

Our January 26 webinar will cover general labour, employment, and human rights law updates on areas that are top-of-mind for Canadian companies, including:

  • A year in review: Top 10 employment law developments
  • Employment agreement updates
  • Practical responses to Ontario’s Bill 27, Working for Workers Act, 2021
  • Hybrid/work from home models

Date: Wednesday, January 26

Time: 10:00 am to 11:00 am ET

Click here to register for Part 2: Focus on Labour, Employment, and Human Rights Law Updates.

We look forward to connecting with you at one or both sessions!

On December 2, 2021, the Ontario government passed Bill 27, Working for Workers Act, 2021, introducing significant changes to workplace laws. The most significant changes include:

  • Right to Disconnect from Work: Employers, subject to the Employment Standards Act, 2000 (“ESA”), with 25 or more employees, must have a written policy for disconnecting from work. The term “disconnecting from work” is defined to mean not engaging in work-related communications, like emails or calls, and not sending or reviewing any messages, so that employees are free from the performance of work outside of normal working hours. The policy must include the date it was prepared and when any changes were made to it if any. Employers have six months beginning December 3, 2021 to comply with the requirements.
  • No Non-Compete Agreements: Employers subject to the ESA are prohibited from entering into employment contracts or other agreements with an employee that are, or that include, a non-compete agreement. A “non-compete agreement” is defined as an agreement between an employer and employee that prohibits the employee from engaging in anything that competes with the employer’s business, once the employment relationship ends.

There is an exception to the prohibition on non-competition agreements in the event of a sale or lease of a business and for executive-level employees. “Executive” for the purposes of this provision is defined as “any person who holds the office of chief executive officer, president, chief administrative officer, chief operating officer, chief financial officer, chief information officer, chief legal officer, chief human resources officer or chief corporate development officer, or any other chief executive position.”

This amendment to the ESA is deemed to be in force as of October 25, 2021. This means that any pre-existing non-compete agreements before this date remain unaffected, but any agreements entered into beginning October 25, 2021 and on will be unenforceable and void if they contravene the new provisions. There is nothing in the amendments to suggest that the use of restrictive covenants such as non-solicitation, confidentiality, and assignment of intellectual property agreements are affected by the new amendments.

  • Licensing for Temporary Help Agencies and Recruiters: The ESA is amended so that both temporary help agencies and recruiters must hold a valid licence to operate as an agency or recruiter. Employers may only knowingly engage or use a recruiter’s services if the recruiter holds a valid licence.
  • No Fees for Recruiting Foreign Nationals: The Employment Protection for Foreign Nationals Act, 2009 is amended to prohibit recruiters or employers, when recruiting a foreign national, from knowingly using the services of a recruiter that has charged a fee to a foreign national.
  • Workplace Washroom Access: The Occupational Health and Safety Act is amended to require owners of workplaces to provide washroom access to persons making deliveries to or from the workplace. Exceptions to this include where providing access would be unreasonable or impractical for reasons related to the health and safety of any person at the workplace.
  • Distribution of WSIB Insurance Fund Surplus: The Workplace Safety and Insurance Act is amended to require the Workplace Safety and Insurance Board (“WSIB”) to distribute surplus amounts in the insurance fund to Schedule 1 employers.
  • Removal of Canadian Experience: The Fair Access to Regulated Professions and Compulsory Trades Act, 2006 is amended to prohibit regulated professions from requiring “Canadian experience” as a qualification for registration, unless it is required for purposes related to health and safety. To facilitate this, the Minister of Citizenship and Immigration can support internationally trained individuals to gain access to regulated professions by providing information, assistance, and research in certain circumstances outlined.

Key Takeaways

Bill 27 introduces major changes to workplaces in Ontario. Employers should be proactive and review employment agreements entered into on October 25, 2021 and after to ensure they do not include prohibited non-compete clauses. Employers should also canvass engaged recruiting services and temporary help agencies to determine if they are licensed, and begin to identify potential inclusions to the “disconnect from work” policy that they will be required to draft, such as response time for emails, out of office notifications, and time-delayed sending of emails.

On May 21, 2021, we reported in a blog post that the British Columbia government passed Bill 13, Employment Standards Amendment Act (No. 2), 2021, which amends the Employment Standards Regulation to add a permanent and paid sick leave program. The Government did not provide details on the leave at that time. However, on November 24, 2021, the Government announced that beginning January 1, 2022, employees in British Columbia must be provided with a minimum of five paid sick days each year.

Background

This past fall, the Government of British Columbia sought consultation and feedback from employees and employers across the province to determine what entitlements currently exist in workplaces and whether three, five, or ten days of paid sick leave should be implemented. In addition to gathering feedback from over 60,000 participants, the Government also conducted research into other countries that currently offer paid sick leave. Ultimately, it was determined that employees should be provided with five paid sick days each year.

Features of the Leave

The paid sick leave program applies to all employees covered under the British Columbia Employment Standards Act (“the ESA“), including part-time workers, and those who have worked for an employer for more than 90 consecutive days. Employees taking the leave must be paid an “average day’s pay” for each day of the leave. This represents the amount typically paid to the employee for work done during the 30-day period before the leave, divided by the number of days the employee worked or earned wages within that 30-day period.

The leave will be entirely funded by the employer and is not subject to reimbursement from the Government. The leave should be treated similarly to other statutory leaves under the ESA. Employers that do not provide paid sick days, or provide less than five paid days, will need to provide or top up employees’ paid sick days to at least five per year. Similarly, the days can be reconciled for employers that already provide five or more paid sick days, so that employees are not entitled to an additional five days on top of their existing contractual entitlement.

Key Takeaways

This leave is separate and distinct from the previously introduced temporary paid sick day reimbursement program. That leave currently provides employees with three paid sick days for reasons related to COVID-19, but is set to expire on December 31, 2021, right before the new five-day permanent program takes effect.

While the new leave protects employees from no longer having to lose pay when taking a sick day, it is also beneficial for employers, as it can help prevent the transmission of COVID-19 in the workplace by giving employees the assurance that staying home from work when they feel ill will not have a financial impact on them.

British Columbia is one of the first jurisdictions in Canada to make paid sick leave a permanent feature of its employment standards legislation, but given the nation-wide call for paid sick leave, other provinces and territories may release similar amendments to their legislation. Employers in the province should review the changes to the ESA and ensure that applicable policies and practices are updated to address the new leave.

We will continue to monitor changes if additional jurisdictions introduce similar leaves.

On October 28th, Baker McKenzie International Human Rights lawyer Kevin Coon was joined for a conversation with Canada’s first Ombudsperson for Responsible Enterprise Sheri Meyerhoffer, to explore the mandate of the Office of the Canadian Ombudsperson for Responsible Enterprise (CORE).

The CORE was established in 2019 following consultations with the late John Ruggie, author of the United Nations Guiding Principles on Business and Human Rights, to address international human rights and responsible business conduct. This nontraditional body represents the Government of Canada’s commitment to provide a mechanism to respond to concerns raised about the protection and respect for human rights by Canadian-based companies doing business around the globe in the garment, mining, and oil and gas sectors.

Please click here to view a recording of the webinar and enter passcode: Baker2021!

 

As companies call employees back to the physical workplace, more employers are electing to implement mandatory COVID-19 vaccination policies to keep employees safe. In turn, some employees are seeking accommodations for disabilities or sincerely held religious beliefs that may prevent them from being vaccinated. What should Canadian employers keep top of mind when handling these requests?

Baker McKenzie’s Labour and Employment lawyers share guidelines for Canadian employers to consider as they encounter requests for accommodations from mandatory vaccination policies.

Click here to watch the video.