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Background

In May 2020, the Government of Ontario first introduced O. Reg. 228/20: Infectious Disease Emergency Leave (the “Regulation”) under the Employment Standards Act, 2000 (the “ESA”). The Regulation provided employers with temporary relief from the notice of termination and severance pay obligations under the ESA during the COVID-19 period. The Regulation first defined the COVID-19 period as March 1, 2020 to September 4, 2020, but this has since been extended a total of five times.

During the COVID-19 period, a non-unionized employee was deemed to be on an unpaid infectious disease emergency leave (“IDEL”) if their employer had temporarily reduced or eliminated their hours of work or temporarily reduced their wages because of COVID-19. In other words, such acts that would otherwise constitute a constructive dismissal would not be considered as such.

Deemed IDEL Comes to an End

As of July 30, 2022, however, non-unionized employees can no longer be deemed to be on an IDEL. Consequently, the ESA’s regular rules around constructive dismissal have resumed. That is, when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent, i.e. by temporarily laying them off, this may be considered a constructive dismissal, even if it was done for reasons related to COVID-19.

Constructive Dismissals Post-Deemed IDEL

When deemed IDEL was in place, the question arose for the courts to determine whether an employer’s right to temporarily layoff its employees pursuant to the Regulation restricted an employee’s common law right to pursue a civil claim against their employer for constructive dismissal. In Coutinho v. Ocular Health Centre Ltd., the court determined that the Regulation did not affect the plaintiff/employee’s right to sue for constructive dismissal. But in Taylor v. Hanley Hospitality, the court found that the Regulation did displace the common law. The Regulation was introduced to help businesses survive during the pandemic by allowing them to temporarily layoff employees without the usual statutory liability as a consequence. Therefore, the court’s reasoning in Taylor was that if it had ruled in favour of Coutinho, i.e., to find that employers were still liable under common law, the Regulation would be counter-intuitive.

These contradicting decisions provided little guidance to employers relying on IDEL regarding their exposure to constructive dismissal claims at common law. However, as of July 31, 2022, this has become a moot point because non-unionized employees can no longer be on deemed IDEL. Doing so would put employers at a significant risk of constructive dismissal claims being brought against them under the ESA and at common law. As a result, employers should return to their pre-COVID-19 period practices regarding temporary layoffs and should add language to employment agreements that may allow temporary layoffs to occur under the common law.

Paid and Unpaid IDEL to Continue

While non-unionized employees can no longer be on deemed IDEL and the ESA’s regular rules around constructive dismissal have resumed, employers should note that unionized and non-unionized employees can still elect to take unpaid, job-protected IDEL if they are not performing the duties of their position because of specified reasons related to COVID-19. This leave is available to employees covered under the ESA and lasts for as long as the COVID-19 related reason that triggered it. Similarly, up until March 31, 2023, the ESA will continue to allow eligible employees to take up to three days of paid IDEL for specific reasons related to COVID-19.

Many thanks to Eloise Somera for her assistance with this blog.

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On July 13, 2022, the Government of Ontario published a chapter in its guide to the Employment Standards Act (“ESA”) on the recently legislated requirement for employers to develop a written policy on electronic monitoring. “Electronic monitoring” includes all forms of employee monitoring that is done electronically. The purpose of this new requirement is for employers to be transparent about whether they electronically monitor employees by describing how and in what circumstances they monitor and by stating the purposes for which the information obtained may be used.

Below we have summarized the requirements and necessary contents of the electronic monitoring policy and have offered key takeaways.

Application

Since coming into force on April 11, 2022, employers who electronically monitor its employees and employed 25 or more employees in Ontario on January 1, 2022 must implement a written electronic monitoring policy by October 11, 2022. Beginning in 2023, employers with 25 or more employees on January 1 of any year must have a written policy in place before March 1 of that year.

When determining how many employees an employer has on January 1 of any year, it must include part-time and casual employees, not just full-time employees. The number of employees must also include employees from all of the employer’s locations in Ontario. Assignment employees of temporary help agencies are employees of the agency, not of the agency’s clients.

If, on January 1 of a given year, an employer does not meet the 25 employee threshold, this will be assumed for the remaining calendar year, even if the employee count increases at a later point that year. This means that the ESA requirement for a written policy on electronic monitoring will not apply.

If, on January 1 of a given year, an employer employs 25 or more employees, then the ESA requirement will apply for the remaining calendar year, even if the employee count decreases at a later point that year.

Contents

An employer’s written policy on electronic monitoring of employees is not required to be the same for all of its employees, as long as it includes the following information:

  1. A statement as to whether the employer engages in electronic monitoring of employees.
  2. Where the employer does electronically monitor employees, the policy must also contain the following information:
    • A description of how the employer may electronically monitor employees.
    • A description of the circumstances in which the employer may electronically monitor employees.
    • The purposes for which information obtained through electronic monitoring may be used by the employer.
  3. The date the policy was prepared and the date any changes were made to the policy.

An employer’s written policy must be provided to all employees within 30 calendar days of the day the employer is required to have the policy in place or the day the existing policy is being changed. Employers may provide the policy to employees as a printed copy; as an attachment to an email if the employee can print a copy; or as a link to the document online if the employee has a reasonable opportunity to access the document and a printer.

Key Takeaways

Although an employer’s written policy must contain the purposes for which it may use information obtained through electronic monitoring, the ESA does not limit the employer’s use of the information to the stated purposes.

A complaint can only be made by an employee to the ministry, or be investigated by an employment standards officer, where there is an alleged contravention of the employer’s obligation to provide a copy of the written policy within the required timeframe to its employees. This ESA requirement does not establish a right for employees not to be electronically monitored by their employer, nor does it create any new privacy rights for employees.

For 2022, employers engaged in electronic monitoring and meeting the 25 employee threshold on January 1, 2022 should begin developing their policy before the October 11, 2022 deadline. Thereafter, on January 1 of any year, the written policy must be implemented by March 1 of that year. The policy must contain all of the required information noted above and must be delivered to all employees in the appropriate format and within the required timeframe. A copy of every written policy must be retained for three years after the policy is no longer in effect.

Many thanks to Eloise Somera for her assistance with this blog.

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Every business has sensitive components integral to its success, whether trade secrets, customer contacts, or other confidential information that would be appealing to competitors.

In Canada, attempting to stop an employee from sharing confidential information, competing, or soliciting customers, suppliers or employees can be tricky. In this In Focus video, our Labour and Employment lawyers discuss the current state of the restrictive covenant landscape and what steps employers can take to protect their businesses.

Click here to watch the video.

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Special thanks to presenters Benjamin Ho  (San Francisco), Matias Herrero (Buenos Aires), Liliana Hernandez-Salgado (Mexico City), Maria Cecilia Reyes Jaimes (Bogota) and Leticia Ribeiro (Trench Rossi Watanabe, Sao Paulo*)

*Trench Rossi Watanabe and Baker McKenzie have executed a strategic cooperation agreement for consulting on foreign law

Our four-part Navigating the World webinar series features US moderators welcoming Baker McKenzie colleagues from around the globe as they share the latest labor and employment law updates and trends. In this session, US-based multinational employers with business operations in the Americas hear directly from Andrew Shaw and local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

Please click here to view a recording of the webinar highlighting the Americas. 

We invite you to register to reserve your spot at our upcoming sessions:

MIDDLE EAST AND AFRICA: Wednesday, June 15 at 9 am PT / 11 am CT/ 12 pm ET

ASIA PACIFIC: Wednesday, June 22 at 3 pm PT / 5 pm CT/ 6 pm ET

Click here to view the program details, to register and to watch recordings of any sessions you may have missed.

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In a recent episode of the Toronto Today with Greg Brady podcast, George Avraam (starting at 16:17 of the podcast) discussed Baker McKenzie’s representation of McMaster University in defending its mandatory COVID-19 vaccination policy on judicial review (see also our prior blogpost here), and why some university students will have to show proof of a COVID-19 vaccination before attending class this fall.

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On June 1, 2022, the Québec National Assembly passed Bill 96, An Act respecting French, the official and common language of Québec, introducing significant changes to the Charter of the French Language and other laws. The Bill aims to reinforce the use of French in business, services, communications, education, and the workplace by strengthening existing French language requirements and imposing new ones.

Below we have summarized the significant employment-related changes and offer some key takeaways.

Employment-related Changes

The key employment law changes introduced by Bill 96 are as follows:

  • Mandatory Employment Documentation and Written Communications in French: Employers must provide offers of employment, transfer or promotion; documents relating to conditions of employment, such as manuals and policies; job application forms; group benefits information; and training documents in French, with no exception. Employers are also required to draw up written communications to their employees in French, unless an employee requests that such communications be in a language other than French.
  • Individual Employment Contracts in French: Bill 96 divides individual employment contracts into two categories: those that are a contract of adhesion (i.e. a contract where its terms are imposed and are non-negotiable) and those that are not (i.e. the terms are individually negotiated by the parties).
    • All employment contracts that are contracts of adhesion must be provided in French, so that the parties can first examine the contract and only after examining it, agree to be bound by the non-French version if it is their wish to do so.
    • Employment contracts that are not contracts of adhesion can be drawn up exclusively in a language other than French if it is the express wish of both parties. Individual employment contracts entered into before June 1, 2022 that are drafted in a language other than French are not required to be translated into French, unless an employee requests the translation within one year of June 1. If requested, employers must translate the documents in a timely manner.
  • Recruitment: Employers must make job postings available in French in a comparable manner as the publication of the non-French version. An employer advertising a job offer in a language other than French must ensure that the non-French job offer is advertised simultaneously with the French offer. Both job offers must reach a target public of a proportionally comparable size. If a position requires the knowledge of a language other than French, the justification for the requirement must be indicated in the job posting. Additionally, employment applications must be drawn up in French. If applications are available in another language, employers must ensure that the French version is available on terms that are at least as favourable as the non-French version.
  • Knowledge of a Language other than French: Employers are required to take all reasonable means to avoid requiring a person to have knowledge of a language other than French to obtain or keep a position. Before making knowledge of English a condition of employment, businesses will have to conduct an assessment as to why that condition is required and document it. However, the Bill specifies that this requirement should not be interpreted as imposing an unreasonable reorganization of an employer’s business.
  • Protection Measures: Employers are prohibited from taking reprisals against an employee who seeks to enforce his or her rights under the Charter or to deter an employee from exercising such rights. The Bill also creates a new dispute resolution procedure: any person who believes they have been the victim of a prohibited practice can now file a complaint with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (the “CNESST”) within 45 days of the alleged conduct.
  • Discrimination and Harassment: The Bill provides for a right to work in an environment free of discrimination or harassment with respect to the use of French. Employers will be required to take reasonable steps to prevent such conduct and, if such conduct is brought to their attention, to make it stop.
  • Francization: The existing French language requirements applicable to businesses with 50 or more employees are extended to businesses with at least 25 employees. These businesses will now be required to register and obtain a Francization certificate from the Office québécois de la langue française (“OQLF”) attesting that the use of French is “generalized” at all levels of the business.
  • Compliance and Enforcement: In addition to creating a new private right of action for Québec residents, the Bill increases penal fines for non-compliance with the Charter to a maximum of $30,000 for businesses for a first offence. In addition, the OQLF, charged with enforcing the Charter, is also granted enhanced enforcement and investigative powers, such as entering a business’ premises to ensure language requirements are being met.
  • Court Proceedings: Any pleadings drawn up in English by an individual or corporation must be accompanied by a certified French translation, at the expense of that party.

Please note that Bill 96 applies to any employer carrying out its activities in Québec, including federally-regulated employers.

Entry into Force

Most of the amendments described in this post entered into force on June 1, 2022. The extended Francization rules will become effective three years after the Bill’s assent, and the provision regarding the translation of pleadings will become effective three months after the Bill’s assent. Parties will also have one year to translate any application forms, documents relating to conditions of employment, training, and other documents into French.

Key Takeaways

Businesses with Québec employees will need to review their current practices and may be required to undertake major changes to comply with Bill 96’s new requirements, including:

  • reconsidering job posting/description practices;
  • translating employment applications;
  • reconsidering their approach to translating all employment-related onboarding documents (offers/contracts, bonus plans, commission plans, equity plans, etc.);
  • developing an approach to translating all benefits information, employment policies and other employee facing documentation; and
  • for businesses with at least 25 employees, assessing whether the use of French is generalized in the workplace and making additional changes to comply with the Francization rules.

Many thanks to Juliette Mestre for her assistance with this blog.

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We are pleased to share a recent The Hill Times article, “Cyberbullying more common for adults than children during pandemic, say experts,” with quotes from Andrew Shaw. This article discusses adults who work in fields related to COVID-19 have been at greater risk of being targeted with online forms of harassment during the pandemic, including scientists, health-care practitioners, and educators.

Click here to view the article.

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We are pleased to share a recent Benefits Canada article, “Employers seeking to withhold termination entitlements must prove wilful misconduct pre-planned: Ontario court,” with quotes from George Avraam. A recent Ontario Court of Appeal decision raises the bar for employers seeking to withhold minimum entitlements under the Employment Standards Act from employees dismissed for cause.

Click here to view the article.

This article was originally published in Benefits Canada.

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In December 2021, the Ontario government passed Bill 27 – Working for Workers Act, 2021 requiring employers with 25 or more employees to create a “Disconnecting from Work Policy” by June 2, 2022. The Ontario government is following the lead of France, Spain and Portugal — all of which have adopted similar legislation in recent years.

In this In Focus video, our Labour and Employment lawyers share key considerations and important timelines for employers to know as they develop Disconnect policies for their workplaces.

Click here to watch the video.

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For more detail, read the Law Times article McMaster University wins judicial review over removal of students for refusing COVID-19 vaccine.