On May 13, 2021, the Ontario government announced that it will extend the province-wide Stay-at-Home Order (O. Reg. 265/21) by two weeks, until June 2, 2021. The government announced that all public health and workplace safety measures under the province-wide emergency brake will remain in effect during this time. Continue Reading Ontario Extends Province-Wide Stay-at-Home Order Until June 2, 2021

In March of 2021, the Ontario Court of Appeal released a long-awaited and precedent-setting decision in Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148 (“Participating Nursing Homes“).

Contrary to practices previously endorsed by the Pay Equity Commission, the Court of Appeal determined that public sector employers who achieved pay equity using the “proxy method” have an ongoing obligation to revisit comparator information of the “proxy employer” to maintain pay equity. The matter has been remitted to the Pay Equity Hearings Tribunal (the “Tribunal”) to specify what procedures should be used to ensure that pay equity is maintained under “proxy plans” with ongoing reference to male comparators.

This is the second of a two-part series. Part One provided an overview of the pay equity maintenance obligation. This Part Two will explain how the Court of Appeal’s decision in Participating Nursing Homes affects the pay equity maintenance obligation for “proxy employers” in the broader public sector. Continue Reading Ontario Court of Appeal: Pay Equity Maintenance Requires Ongoing Reference to Male Comparators. PART II: How does the Ontario Court of Appeal’s recent decision affect pay equity maintenance obligations?

In March 2021, the Ontario Court of Appeal released a long-awaited and precedent-setting decision in Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148 (“Participating Nursing Homes“).

Contrary to practices previously endorsed by the Pay Equity Commission, the Court of Appeal determined that public sector employers who achieved pay equity using the “proxy method” have an ongoing obligation to revisit comparator information of the “proxy employer” to maintain pay equity. The matter has been remitted to the Pay Equity Hearings Tribunal (the “Tribunal”) to specify what procedures should be used to ensure that pay equity is maintained under “proxy plans” with ongoing reference to male comparators.

This is the first of a two-part series. Part One will provide an overview of the pay equity maintenance obligation. Part Two will explain how the Court of Appeal’s decision in Participating Nursing Homes affects the pay equity maintenance obligation for “proxy employers” in the broader public sector. Continue Reading Ontario Court of Appeal: Pay Equity Maintenance Requires Ongoing Reference to Male Comparators – PART I: What is pay equity maintenance?

Following almost a year of uncertainty, the Ontario Superior Court finally clarified that temporary layoffs during the COVID-19 pandemic can amount to constructive dismissal under the common-law. Ontario employers should take note of this important decision if they have or are considering temporary staffing cuts, including temporary reductions in hours. Continue Reading COVID Layoffs Can Lead to Employer Liability, Ontario Court Says

On April 29, 2021, the Ontario government passed Bill 284, COVID-19 Putting Workers First Act, 2021 amending the Employment Standards Act, 2000 (the “ESA”) to require employers to provide employees with up to three days of paid leave if they miss work for reasons related to COVID-19. The entitlement is retroactive to April 19, 2021 and will end on September 25, 2021, with the possibility that it might be extended. Continue Reading Paid Sick Leave in Ontario for Reasons Related to COVID-19

The Toronto Order

The Toronto class order made pursuant to Section 22 (5.0.1) of the Health Protection and Promotion Act (“Toronto Order“), which can be found here, requires owners, operators or occupiers of a business to notify Toronto Public Health via the online COVID-19 Workplace Reporting Tool as soon as they become aware of 5 or more COVID infections in the workplace within a 14-calendar-day period. The Toronto Order grants discretion to the City to order a full or partial closure of the workplace, or shift/work area mass dismissal, when there has been 5 or more confirmed or probable COVID cases within a 14-calendar-day period. Once closed, the owners, operators and/or occupiers of a workplace cannot attend the workplace unless necessary to:

  • comply with any applicable laws;
  • allow for inspections, maintenance and repairs to be carried out;
  • allow for security services to be provided;
  • to deal with critical matters relating to the closure of the workplace if they cannot be done remotely; and
  • access materials, goods, or supplies that may be necessary for the business or organization to continue to operate remotely.

Continue Reading Toronto and Peel Region Public Health Release Orders Requiring Closure of Businesses with 5 or More COVID Infections

On April 7, 2021, in response to a rise in COVID-19 infections, the Ontario government declared a third provincial emergency under the Emergency Management and Civil Protection Act, and has issued a second Stay-at-Home-Order (“Order“), effective Thursday, April 8, 2021 at 12:01 a.m. The new Order is fundamentally the same as Ontario’s last Stay-at-Home Order, but comes on the heels of the province-wide “emergency brake” which came into effect on April 3, 2021.

Ontario’s new measures affect many Ontario employers. The Order does not amend the list of essential businesses which are permitted to continue operating, but the government will increase inspections and enforcement by health and safety inspectors and provincial offenses officers at essential businesses, particularly in regional hot zones.

Continue Reading New Measures for Ontario Employers: Ontario Declares Emergency and Implements Second Stay-at-Home Order

Government benefits and guidance relating to COVID-19 are being introduced quickly and are rapidly evolving. Earlier this month, the Government of Canada amended existing legislation to extend access to certain recovery benefits and published accessibility guidelines to help employers remove barriers for persons with disabilities during the pandemic.

Extension of COVID-19 Recovery Benefits

On March 17, 2021, the federal government passed Bill C-24, An Act to amend the Employment Insurance Act (Additional Regular Benefits), the Canada Recovery Benefits Act (Restriction on Eligibility), effectively extending certain benefits under the Employment Insurance Act and the Canada Recovery Benefit Act. Bill C-24 amends the following benefits as described:

  • Canada Recovery Benefit (CRB): This benefit provides $500 per week for up to 38 weeks (up from 26 weeks) for those who are not employed or self-employed due to COVID-19 and who are not eligible for EI, or had their employment/self-employment income reduced by at least 50% due to COVID-19.
  • Canada Recovery Sickness Benefit (CRSB): This benefit provides $500 per week for up to a maximum of 4 weeks (up from 2 weeks) for workers who are unable to work for at least 50% of the week because they contracted COVID-19, self-isolated for reasons related to COVID-19, or have underlying conditions, are undergoing treatments or have contracted other sicknesses that would make them more susceptible to COVID-19.
  • Canada Recovery Caregiving Benefit (CRCB): This benefit provides $500 per week for up to 38 weeks (up from 26 weeks) per household for workers unable to work for at least 50% of the week because they need to care for children under 12 or other family members who need supervised care, or because the child or family member is sick and/or required to quarantine or is at high risk of serious health implications because of COVID-19.
  • Employment Insurance (EI) Regular Benefits: Individuals claiming EI regular benefits can now access up to a maximum of 50 weeks (up from 24 weeks) for claims established between September 27, 2020 to September 25, 2021. Additionally, self-employed workers claiming special EI benefits will now be able to use a 2020 earnings threshold of $5,000, compared to the previous threshold of $7,555.

The federal government has announced that it will amend the Canada Labour Code to ensure that employees in federally regulated private sector organizations are entitled to access the additional weeks of the CRSB and CRCB. While provincial-level governments have yet to make a similar announcement, we expect some provinces will amend applicable employment standards legislation, or at the very least issue guidance, to align with the extended benefits.

Accessibility Guidelines Related to COVID-19

On March 11, 2021, Accessibility Standards Canada released, for the first time, accessibility guidelines for COVID-19 or other emergencies. These guidelines offer practical information on how to identify then remove barriers for employees during the COVID-19 pandemic or other emergencies:

  • Best practices for accessibility when working from home. Working from home during COVID-19 and other emergencies can create new barriers for persons with disabilities. For example, persons with disabilities may encounter challenges related to equipment, scheduling, use of online meeting platforms, and internet access. This guideline helps employers identify the various barriers that working from home may present and provides guidance on removing such barriers, including the use of adaptive equipment and programs, as well as flexible work arrangements.
  • Accessible practices for returning to the workplace. Emergencies such as COVID-19 can also create accessibility barriers for employees with disabilities when returning to the workplace. Employers should manage start and end times to make physical distancing easier, organize shared spaces in a manner that would allow for physical distancing, and reconsider emergency evacuation procedures for employees with disabilities. Employers should remember that personal protective equipment such as masks may also create new barriers for employees with disabilities. For example, employees who are Deaf, Deafblind, deafened, or hard of hearing may require the use of masks with clear panels for lip-reading purposes or headsets with built-in microphones for high-quality sound and other accessible equipment for hearing while physical distancing.
  • Accessible communication during COVID-19 and other emergencies: A guideline for federal organizations. This resource provides practical guidelines to help federally regulated organizations communicate with persons with disabilities during the pandemic. Of significance, this guidance sets out best practices related to communicating with employees with disabilities using technology, in person, or through print-based content. This may include using closed captions and described videos when posting on social media and identifying and informing employees of available communication assistive devices during verbal communications or directly on written materials.
  • Accessible communication during COVID-19 and other emergencies: A guideline for persons with disabilities. This resource addresses communication barriers that can exist during emergencies for persons with disabilities. Among other things, this guidance encourages employers to work with employees with disabilities to develop emergency plan kits and to create a communication plan to remove barriers related to communication and the use of technology such as establishing a personal support team and identifying communication assistive devices in advance of emergencies.

Employers should be aware that emergencies like the COVID-19 pandemic can create new barriers for persons with disabilities. Both employees and employers have a role to play in removing these barriers and should discuss these needs often.

We are pleased to share with you the BNN Bloomberg interview, “Workers might need to give up some rights to privacy on being vaccinated.” Kevin Coon addresses vaccination issues in the workplace, including whether people will be able to work without getting vaccinated.

Click here to listen to the interview.

This interview was originally posted in BNN Bloomberg.