On July 17, 2020, the federal government announced that it would extend the Canada Emergency Wage Subsidy program (“CEWS”) until December of 2020, and proposed several significant changes that will, among other things, allow more employers to access subsidies.

On July 20, 2020, the federal government introduced Bill C-20, An Act respecting further COVID-19 measures, to extend and adapt the CEWS program. On July 21, 2020, Bill C-20 received its third reading, and is expected to receive royal assent very soon. If passed, Bill C-20 will retroactively impact the CEWS program, generally commencing with the fifth qualifying period which commenced on July 5, 2020 (subject to a “safe harbour” discussed below).

We have previously published articles on CEWS here and here. To recap, CEWS helps employers continue and maintain their business during the pandemic by subsidizing certain remunerations paid to eligible employees. To-date, eligible employers must have experienced a sufficient decline in revenue (generally 30%) for defined four-week periods (“qualifying periods”) that commenced on March 15, 2020.

Bill C-20 proposes the following key changes to the CEWS program (among others):

  • Eliminate the 30% revenue decline eligibility criteria. CEWS would provide a base subsidy for all eligible employers that experience any decline in revenue, including eligible employers with a revenue decline of less than 30%.
  • Calculate the subsidy in proportion to revenue decline. Under the current CEWS program, subsidies amount to approximately 75% of eligible remunerations paid to eligible employees (subject to certain caps). Under the proposed scheme, the percentage of the subsidy would vary in proportion to the amount of the employer’s revenue decline, and would decrease as the program winds down.
  • Introduce an additional “top-up” subsidy. CEWS would provide an additional top-up subsidy to employers that have been most affected by the pandemic. Eligible employers would generally be those who experienced a three-month average revenue drop of more than 50%.
  • Provide a “safe harbour” for July and August. Employers who have already made business decisions for the qualifying periods in July and August based on the “old rules” (e. the pre-Bill C-20 rules) may be entitled to calculate their subsidy under those rules (i.e. by reference to the higher CEWS rate), if they would be better off.
  • Eliminate the “14 day rule”. The eligibility criteria would no longer exclude subsidies for employees that are without remuneration for 14 or more consecutive days within a qualifying period.
  • Extend the CEWS to further qualifying periods. According to Bill C-20, the CEWS program would be extended at least until November 21, 2020, and a further extension into December 2020 could be implemented by regulation. The federal government has announced its intention to provide support until December 19, 2020.
  • Extend the application deadline. The deadline to apply for a subsidy under the program would be extended from September 30, 2020 to January 31, 2021.

Bill C-20 also includes several other notable changes. Furthermore, the federal government has proposed to make additional changes for the seventh and subsequent qualifying periods to align CEWS with the Canada Emergency Response Benefit and Employment Insurance Benefits with respect to employees who are on a paid leave of absence. However the details and timing of these complimentary changes are currently unknown.

Interested readers can access a more detailed summary of the changes proposed under Bill C-20 in this client alert published by Stephanie Dewey of our Tax Group.

Starting July 7, 2020, the City of Toronto will require businesses to ensure masks or face coverings are worn by the public in their enclosed public spaces.

Key Takeaways
  • The City of Toronto’s bylaw will come into force on July 7, 2020. It is currently set to expire on or about October 1, 2020, but may be extended.
  • The new bylaw will generally apply to all indoor spaces within the City of Toronto that are openly accessible to the public. The bylaw will not require individuals to wear masks or face coverings in workplaces that are not openly accessible to the public will not be required.
  • A list of public spaces exempted from the bylaw can be found here: https://www.toronto.ca/home/covid-19/covid-19-what-you-should-do/covid-19-orders-directives-by-laws/mandatory-mask-or-face-covering-bylaw/
  • Under the bylaw, there are exceptions for individuals who are unable to wear a mask or face covering for medical reasons, and for children under two years old. There are further exceptions for individuals who are, for example, eating a meal or engaging in athletic or fitness activity.
Employer Considerations

To comply with this new bylaw, and with employer obligations under the Ontario Occupational Health and Safety Act, employers should frequently review Provincial and City health guidelines to ensure they are following the latest safety requirements. Updated information will likely be made available here.

According to City guidance, applicable employers must:

  • Create a mask policy for the establishment;
  • Communicate this new policy to staff and customers;
  • Train your staff on the policy, including when staff and customers must wear a mask or face covering, what to do if a customer refuses to wear one, and who is exempt from wearing one; and
  • Post signs at all entrances reminding everyone to wear a mask.

Face masks and coverings do not replace the need to keep a distance of two metres or six feet from others, wash hands often, and stay home when sick. Employees should continue to work from home if possible.

Many other municipalities in Ontario are implementing similar bylaws, including Windsor and London, Ontario. In response to this growing trend, we recommend that employers review their existing protocols and consider whether it is necessary or advisable to make masks or face coverings mandatory for employees in the course of their employment.

As of January 1, 2021, the new stand-alone Work Place Harassment and Violence Prevention Regulations (the “Regulations”) will come into force to ensure employers prevent harassment and violence in federally regulated industries and workplaces. The Regulations will apply to all federal work places covered under Part II of the Canada Labour Code (the Code), including the federally regulated private sector, the federal public service and parliamentary work places. It will replace Part XX (violence prevention) of the Canada Occupational Health and Safety Regulations (COHSR), as well as portions of two other regulations that include violence prevention provisions.

Key Takeaways

Once the Regulations come into force, employers must:

  1. Prepare the workplace harassment and violence prevention policy working jointly with the policy committee, the workplace committee, or the health and safety representative;
  2. Assess the risk of workplace harassment and violence;
  3. Inform and train employees, and participate in training themselves;
  4. When an incident of harassment or violence is reported, respond within seven days;
  5. Keep records on every incident of harassment and violence in the workplace and report annually to the Labour Program; and
  6. Implement corrective measures in response to the investigation report of an investigator to prevent future occurrences of harassment and violence.

Continue Reading New Workplace Harassment and Violence Prevention Regime for Federally Regulated Employers

On June 26, 2020, the Supreme Court of Canada released its decision in the highly publicized case of Heller v Uber Technologies Inc. The case arises from a Toronto-based UberEATS driver’s effort to bring a $400-million class action against Uber, on behalf of Uber and UberEATS drivers in Ontario. Mr. Heller alleged that Uber violated the Employment Standards Act, 2000 by treating Uber and UberEATS drivers as independent contractors and failing to provide them with employment-related entitlements like minimum wage, vacation, and overtime pay.

The issue before the Court was the validity of an arbitration clause in a standard form service agreement. The agreement was governed by the law of the Netherlands and required drivers to litigate their disputes with Uber in the Netherlands. Uber required all of its prospective drivers to enter into this agreement by having them accept the terms through their app. The Court ruled in favor of the drivers, finding that the arbitration clause was unconscionable because its terms effectively made it effectively impossible for the drivers to arbitrate their claims.

As a result of the decision, the class action can proceed to a certification motion.

Key Takeaways

Employers with arbitration clauses in their employment contracts or independent contractor agreements must revisit their agreements to determine whether they continue to be valid in Canada. Based on the Court’s decision, employers should not have arbitration clauses that require employees to pay substantial upfront fees to initiate the process. Employers should also consider whether they should pay the administration fees required for private arbitration, subject to the company’s right to a refund of those fees if it is successful in arbitration. If employers choose to keep arbitration clauses, they should ensure that in-person hearings remain local.

Continue Reading Supreme Court of Canada Invalidates Uber Arbitration Clause in $400-Million Class Action

There is a presumption that an employee is entitled to common law reasonable notice upon termination of employment without cause. Employers may rebut this presumption through an enforceable termination clause that, at the very least, provides Employment Standards Act, 2000 (“ESA”) minimums, and displaces an employee’s right to common law reasonable notice.

In the past year, the Ontario Court of Appeal made it clear that it will find as unenforceable a termination clause where even the slightest imprecision could result in an unlawful contract. This trend started in Andros v. Colliers Macaulay Nicolls Inc., where the Court narrowly interpreted a failsafe clause as applying only to the first part of a termination clause but not the second. In Rossman v. Canadian Solar Inc., the same Court concluded that savings provisions, such as a failsafe provision, cannot save employers who attempt to contract out of the minimum standards prescribed by employment standards legislation. And most recently, in Waksdale v. Swegon North America Inc., the Court struck down a valid “without cause” termination sub-clause because the “for cause” termination sub-clause was unenforceable. In short, the Court concluded that where one of the sub-clauses is unenforceable, the entire termination clause must fall and it will not be saved by a severability clause.

Continue Reading Another Termination Clause Bites the Dust

Join us for Part 3 of our webinar series on the USMCA, as we approach entry-into-force of the agreement on July 1, 2020.  In this webinar, “USMCA: Labor Rules and Trade Remedies,” Baker McKenzie experts from the United States, Mexico and Canada will discuss how to prepare for enforcement under the Rapid Response Labor Mechanism (RRLM).

Join us for a 60-minute discussion about the RRLM*:

  • how it originated, and how will function,
  • what it means for manufacturers in Mexico,
  • what it means for U.S. and Canadian importers,
  • factors indicating a high risk of enforcement, and
  • what sort of due diligence should be undertaken as we approach July 1 entry into force of the USMCA.

This session is intended primarily for in-house counsel of U.S. and Mexico companies with responsibility for overseeing international trade and supply chain issues, as well as labor and employment issues.  Trade compliance professionals, HR professionals and business managers may also find it useful.

*The RRLM is a first-of-its-kind trade remedy tool that will be used to tie trade benefits, like preferential duty treatment, and even the right to import into the United States, to the protection of labor rights at factories in Mexico.  The RRLM is expected to primarily be enforced by the United States (and Canada) against manufacturing facilities and mining operations in Mexico

Click here for more information and to register.

If you are an Ontario employer who has implemented, or is considering implementing, temporary layoffs, wage reductions, or hours of work reductions, the Ontario Government’s recent changes will matter to you.

On May 29, 2020, the Ontario Government filed a new regulation changing the rules regarding employee eligibility for infectious disease emergency leave, temporary layoffs and constructive dismissals under the Employment Standards Act, 2000 (the “ESA”), with retroactive effect.

Below is a summary of the most important aspects of this new regulation and why the changes will matter to your workplace and employees.

How Long Do These Changes Last?

The regulation applies retroactively, dealing primarily with the time period beginning March 1, 2020 and ending six weeks after the declared emergency ends. The Government has called this the “COVID-19 Period”. The Government recently extended the current declared emergency until June 30, meaning the regulation will be operative until at least August 11, 2020. A further extension to the declared emergency is possible, and this would automatically extend the life of the new regulation.

Continue Reading Ontario Files New ESA Regulation Affecting COVID-19-Related Leaves, Temporary Layoffs & Constructive Dismissals

We are excited to share with you the BNN Bloomberg article, “As new work realities set in, here’s what employees should know.” Kevin Coon was interviewed for this article which addresses how employees should handle finances related to the workplace, including home office expenses, filing taxes, paid sick leave, and knowing what they can expect their employers to cover.

Click here to view the article.

This article was originally posted in BNN Bloomberg.

 

 

As COVID-related restrictions begin to be lifted, employers are properly focused on ensuring that their workplaces and workforces are prepared for reopening. However, there is some suggestion that full or partial reclosings, followed by subsequent reopenings, may need to occur until a vaccine is developed, mass immunity exists, or sufficient treatment methods are implemented. As they plan for reopening, employers should also take this opportunity to reflect on their processes, examine their readiness, and determine what changes are required to seamlessly navigate in a post-COVID environment or a second—or third—wave of COVID-19.

In this last installment of The Canadian Employers’ Reopening Playbook, we identify common challenges employers faced at the onset of the pandemic and provide guidance on how employers can be better prepared to minimize the impact of our changed environment or a subsequent wave of COVID-19.

Employers Should Reassess Existing Policies

Employers should review and develop policies, practices, and procedures to account for uncertainties that may stem from COVID-19. We recommend reviewing the following policies, practices, and procedures to see where additional flexibility can be built in:

  • Leaves of Absence and Vacation Policies: First, employers should review leave-related policies to ensure that they address and are compliant with recently-introduced COVID-19 leaves. Second, employers should also consider whether leave-related policies cover the current realities of COVID-19, such as leaves for employees with childcare and/or eldercare responsibilities. In reviewing leave-related policies, employers should consider increasing the amount and flexibility of leave entitlements and/or allowing employees to use vacation as paid sick leave to help mitigate the risk of COVID-19 in the workplace. Third, to the extent possible, policies should provide clear rules for any non-statutory leaves of absence, so that both parties understand their rights and obligations. Finally, employers should consider revising vacation policies to clearly identify a right to deny vacation requests or to mandate vacation, in order to manage employee expectations.
  • Remote Working and Flexible Work Arrangement Policies: Recent news suggests that many employers have considered extending, or making permanent, work from home arrangements. Since it appears that a full return to office environments is unlikely to occur in the near-term, employers should review and/or have in place a clear remote working and/or flexible work arrangement policy. The policy should outline the employer’s expectations around issues such as hours of work and time tracking, overtime, confidentiality, home office insurance and liability, a procedure for monitoring work product, performance expectations, expectations when attending virtual meetings including dress code, and reserving a general right to return the employee to the office. Having a comprehensive policy ensures that both the employer and the employee are aware of their obligations when working remotely.
  • Health and Safety Policies: Employers should review workplace health and safety policies and ensure that they address any government and/or public health requirements and recommendations, including physical distancing, use of personal protective equipment, hygiene and sanitization requirements, and more. Health and safety policies should also be revised to reference the increased responsibilities that workplace parties, in particular, managers and supervisors, have once employees return. In reviewing these policies, employers should turn their minds to developing protocols for work reassignments, deep sanitization procedures, and other full or partial reclosing measures that may need to be invoked if an employee or other visitor to the workplace tests positive for COVID-19 in the future.

Employers Should Reassess Employment Agreements

Employers should review and amend existing employment agreements to include enforceable provisions on termination, lay-off, COVID-19 related leaves, force majeure, and the right to change compensation, hours of work, and job duties.

It is important to note that modifying existing employment contracts may require consent, consultation, and/or consideration. Employers should consult legal counsel before implementing any changes to existing employment agreements to evaluate the impact of the proposed changes and the risk of wrongful dismissal and/or human rights claims.

Be Prepared for Financial and Personnel Changes

Employers should also be proactive and consider likely financial and personnel implications of a second or third wave of COVID-19.

Eligible employers should consider setting up a Supplementary Unemployment Benefit Plan to top-up employment insurance (EI) benefits in the event of subsequent lay-offs. Supplementary Unemployment Benefit Plans related to temporary stoppages of work, training, illness, injury or quarantine need to be registered and approved by Service Canada. As such, registering the plan now may allow eligible employers to bypass procedural steps in the event of a second or third wave.

If faced with a difficult decision regarding financial and personnel changes, employers should also consider whether a Work-Sharing Agreement would be appropriate. The federal Work-Sharing Program may be available when there is a temporary decrease in an employer’s normal business activity that is beyond the control of the employer, in that it is not: (i) related to a labour dispute; (ii) a seasonal or other recurring shortage of work; or (ii) related to an increase in the employer’s workforce or other decisions by the employer. Employees participating in the Work-Sharing Agreement accept a reduced schedule, share the available work (including a prorated share of any new work that becomes available), and receive EI benefits as income support. For a work-sharing arrangement to qualify under the federal program, the reduction of work over the duration of the agreement should be, on average, 10% to 60% of the employee’s normal schedule. In response to COVID-19, the federal government has introduced temporary special measures, including a shortened application process, an extended benefit period, and more inclusive eligibility requirements. At this time, it is unclear how long these special measures will be in place, so employers who are considering a Work-Sharing Agreement may want to take action sooner, rather than later, to have the agreement approved by employees (or the union) and the government.

The economic impact of COVID-19 is far-reaching.  Employers may find that they need to make cuts to operate in the changed environment. When considering personnel reductions, employers should be alive to mass termination and deemed terminations provisions under applicable employment standards legislation, which vary from province to province and, in some provinces, have been temporarily amended to address COVID-19.

Key Takeaway

As provinces begin reopening their economies, employers must consider business continuity in the short-term and the long-term. During these uncertain times, employers should be proactive and use this opportunity to figure out how they can best adapt existing business processes to operate resiliently in the changed environment.

Do you have more questions? Join us for our webinar, where we will dive deeper into reopening workplaces during COVID-19. For more detail and to register, please click here.