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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!

 

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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.

 

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On October 22nd, 2021, the Ontario government announced its plan to gradually lift all public health and workplace safety measures by March, 2022. The plan will be guided by public health indicators, including those tracking new COVID-19 variants, increases in hospitalizations, ICU occupancy and rapid increases in transmission.

Provisional Timeline for Removing COVID-19 Restrictions:

    • October 25, 2021: As of 12:01 a.m., the government lifted capacity limits in the vast majority of settings where proof of vaccination is required, such as restaurants, bars, sports and recreational facilities, gaming establishments and indoor meeting and event spaces. Other settings, such as museums, religious services, personal care services or barber shops, may also lift capacity limits and physical distancing requirements if they choose to require proof of vaccination. This will not apply to settings where people receive medical care or supplies and grocery stores.
    • November 15, 2021: The government plans to lift capacity limits in remaining higher-risk settings where proof of vaccination is required, including establishments with dance facilities (e.g., night clubs and strip clubs).
    • January 17, 2022: Absent any concerning public health trends following the holidays, the government will lift capacity limits in settings where proof of vaccination is not required. Proof of vaccination requirements may also be lifted in restaurants, bars, sports and recreational facilities and gaming establishments.
    • February 7, 2022: The government plans to lift proof of vaccination requirements in higher-risk settings, including night clubs.
    • March 28, 2022: The government plans to lift other COVID-19 public health measures, including wearing face coverings in indoor public settings. The government plans to lift proof of vaccination requirements in all remaining settings.

To manage COVID-19 over the long-term, the government may deploy local and regional measures including: reintroducing capacity limits, physical distancing, limits on gathering and proof of vaccination requirements in certain settings.

Employers should continue to pay close attention to the latest public health restrictions 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.

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

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We’re thrilled to announce the release of a new edition of The Global Employer: Focus on Global Immigration & Mobility.

In this 2022 edition, you’ll find:

An introduction providing “hot topic” information employers need to know now related to the movement of employees, focusing on large-scale global immigration, employment, compensation and tax issues.

Over 35 country chapters detailing specific immigration requirements related to various types of assignments.

Click here to request a complimentary copy for yourself or your colleagues.

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We are pleased to share a recent SHRM article, “Ontario Court Rules Severance Pay Is Based on Global Payroll,” with quotes from Andrew Shaw. The article discusses the recent unanimous ruling by Ontario’s Divisional Court—a branch of the Superior Court of Justice in Canada’s largest province—that more employers in Ontario will now have to take their global payroll into account in determining an employee’s entitlement to severance pay.

Click here to view the article.

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As of September 22, 2021, Ontarians must be fully vaccinated and provide proof of vaccination and photo ID to access certain public settings and facilities. In response to the requirement, the Ontario Human Rights Commission (the “OHRC”) published a Policy Statement (“Policy”) clarifying the implications of vaccination mandates on human rights as it relates to the provincial mandate and generally for all organizations.

Vaccine Requirements are “Generally Permissible”

In the Policy, the OHRC takes the view that proof of vaccination requirements are “generally permissible” under the Human Rights Code (the “Code”) as long as protections are put in place to ensure that those who cannot be vaccinated for Code-related reasons are reasonably accommodated. In doing so, the Policy notes that “this applies to all organizations” and emphasizes the importance of balancing the rights of people who have not been vaccinated due to a Code-protected ground with individual and collective rights to health and safety.

While “generally permissible”, the Policy states that proof of vaccination or mandatory vaccination policies are only justifiable during a pandemic and should only be used for the shortest possible period of time. They should be regularly reviewed and updated to match the most current pandemic conditions, evidence, and public health guidance. In addition, such policies should have safeguards in place to ensure safe handling and use of personal health information.

Accommodation for Medical Reasons

The OHRC confirms that organizations have an obligation to reasonably accommodate people who are unable to be vaccinated due to Code-related reasons unless the accommodation would “significantly interfere with people’s health and safety”. A reasonable accommodation might include exempting individuals with a documented medical reason for not being able to receive the vaccine. However, it would appear that the range of possible medical exemptions is very narrow.

While individuals with valid medical documentation may be exempt from mandatory proof and vaccination requirements, organizations may still request such individuals to participate in alternative screening measures (i.e., temperature testing, regular COVID-19 testing) for health and safety purposes. Although not always necessary, the OHRC recommends that organizations considering alternative screening measures should cover the costs of such measures as part of their duty to accommodate under the Code.

Creed and Personal Preference

The OHRC recognized the voluntary nature of receiving the COVID-19 vaccine but at the same time provided a clear statement that individuals who chose not to be vaccinated based on personal preferences do not have the right to accommodation under the Code. The Policy firmly states that personal preferences or singular beliefs against vaccinations (or masks) do not amount to “creed” within the meaning of the Code.

Access and Accessibility

Although access to vaccines are fairly widespread in Ontario, the OHRC advised organizations to be cognizant of barriers in accessing vaccinations and proof of vaccinations. In particular, the OHRC recommends that organizations take proactive steps to ensure that their vaccine mandates or proof of vaccination policies do not disproportionately affect vulnerable and/or disadvantaged members of society.

It also emphasized that digital proof of vaccine certificates (including the pending provincial vaccine passport) should be designed to be fully accessible to adaptive technology, including for smartphone users with disabilities, in accordance with the Accessibility for Ontarians with Disabilities Act.

Key Takeways

The OHRC’s Policy Statement is welcoming news for employers contemplating implementing proof of vaccination or mandatory vaccination policies. Not only does it confirm an employer’s ability to implement and enforce such policies, but it also confirms that protection/exemption from such mandates is limited to medical grounds.

As a best practice, employers should always be mindful of their obligations under human rights legislation and consider requests to be exempt from vaccination mandates on a case-by-case basis. Further, vaccination status, proof, and similar COVID-19-related information are considered sensitive personal information that is often subject to privacy legislation. To ensure compliance with applicable privacy rules, employers should notify employees of their mandatory vaccination and proof of vaccination mandates, obtain consent, and have in place stringent safeguards to limit access to employee information.

While helpful, the OHRC’s Policy is only guidance—it does not have the legal force and effect of a court or tribunal decision, nor of legislation. However, policies issued by the OHRC are influential and are generally given significant weight by courts and tribunals (across Canada) addressing human rights-related issues in complaints/applications. We expect to hear more on this topic in the coming months as cases objecting to vaccination mandates due to protected grounds start to make their way through the court/tribunal-system.

British Columbia’s Office of the Human Rights Commissioner has released similar guidance addressing human rights and proof of vaccination mandates in British Columbia.

 

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Special thanks to Stephanie Dewey.

Baker McKenzie’s Labour and Employment, Global Immigration and Mobility, and Tax lawyers review the wide variety of legal issues for Canadian employers to consider regarding a temporary or permanent remote work opportunity outside of the province of the employment agreement and provide tips on how employers can offer employees flexibility while remaining compliant with employment, immigration and tax requirements.

Click here to watch the video.

 

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When world economies face challenges, employment litigation claims of all types arise. In this In Focus video, our Labour and Employment lawyers discuss the range of trending COVID-19 related employment claims and cases and share what Canadian employers can do to best position themselves to manage impending litigation.

Click here to watch the video.

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On July 30, 2021, the Federal Government announced its proposal to extend certain COVID-19 support programs, including the Canada Emergency Wage Subsidy (“CEWS”), Canada Recovery Benefit (“CRB”), the Canada Recovery Sickness Benefit, and the Canada Recovery Caregiving Benefit until October 23, 2021.

Summary of Key Changes in the Federal Government’s Announcement

The key changes from the Federal Government’s announcement are summarized below: 

  • Further Extension of CEWS: The CEWS was previously set to expire in June 2021. Bill C-30, the Budget Implementation Act (No.1), 2021, (“Bill C-30” or “Budget Bill”) formally extended the CEWS until September 25, 2021. Bill C-30 also provided the Government with the authority to further extend the programs through regulations if warranted. The Government announced that it is proposing to use its authority to extend the CEWS until October 23, 2021.
  • Increase in the Maximum CEWS Subsidy Rate: The Federal Government is proposing to increase the wage and rent subsidy rates between August 29 and September 25, 2021. The maximum rate for the wage and rent subsidies would be set at 40% in Period 20 (August 29th to September 25th), instead of being reduced to 20% as previously announced in the Budget Bill. This means that the maximum weekly benefit per employee would be $452. The Federal Government is also proposing to extend these programs by an additional period, Period 21 from September 26th to October 23rd, with a maximum rate of 20% during this time. Eligible employers can still apply for the new Canada Recovery Hiring Program, which will be in place until November 20, 2021.
  • Increase in the Maximum Number of Weeks under the CRB: The maximum number of weeks available under the CRB would be increased by an additional 4 weeks, to a total of 54 weeks, at a rate of $300 per week. The Government has indicated that this will ensure it is available to those who have exhausted their Employment Insurance benefits.
  • Support for Furloughed Employees: The Federal Government previously extended the CEWS subsidy applicable to payments made to employees on leave with pay (furloughed employees) until August 28, 2021. The Government has confirmed that the CEWS will no longer be available for payments made to furloughed employees after August 28, 2021. The Government has published draft amendments to the Income Tax Act (“ITA”) to provide clarity on these changes.
  • Calculation of Revenue Decline: Generally, an employer’s decline in revenues is determined by comparing the employer’s revenues in a current calendar month with its revenues in the same calendar month before the COVID-19 pandemic for the purposes of the rent subsidy, the Canada Recovery Hiring Program, and the wage subsidy. This is known as the general approach. Employers can also use an alternative approach, which will compare the employer’s monthly revenues relative to the average of its January and February 2020 revenues. Employers are required to use the same approach for all qualifying periods once an approach is chosen.

The Federal Government is proposing to allow an eligible organization to elect to use the alternative approach to calculate its revenue decline for Periods 14 to 17 (March 14 to July 3, 2021), if it was not carrying on a business or otherwise carrying on ordinary activities on March 1, 2019. If approved by the Governor in Council, the Government has noted that these changes would align the rules for Periods 14 to 17 (March 14 to July 3, 2021) with those for periods 1 to 4 (Period 15 to July 4, 2020) for organizations that began operating between March 1, 2019 and the start of the pandemic. This is intended to address situations where an employer used the general approach to calculate its revenue decline, however was not yet operating in early 2019 and would not have any revenue during the prior reference period that was required to be used under the general approach. This proposal means that these organizations would be eligible for continued support under these programs.

Key Takeaways

COVID-19 continues to affect employment and economic life in Canada. Emergency measures and supports for businesses are frequently being amended and extended. Employers should review the Government’s announcement and proposed changes to the supports and extensions. Employers should also review the changes to the supports available for furloughed employees as the Federal Government has now confirmed that the CEWS will not be available for payments made to furloughed employees after August 28, 2021. We continue to monitor for further information about the Government’s proposed changes and extensions of COVID-19 supports.

 

 

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Under the Ontario Employment Standards Act (“ESA”), employers with a payroll of at least $2.5 million are required to provide statutory severance pay when dismissing an employee with 5 or more years of service. But how is an employer’s “payroll” actually calculated?

Over the years, there have been conflicting decisions around the calculation of the $2.5 million threshold under the ESA and whether an employer’s payroll outside of Ontario is included. Both courts and the Ontario Labour Relations Board (“OLRB”) have gone back and forth on the definition, with the prevailing view that the $2.5 million threshold was limited to an employer’s Ontario payroll. This was until recently when the Ontario Divisional Court ruled in Hawkes v. Max Aicher (North America) Limited (“Hawkes”) that the payroll threshold refers to an employer’s global payroll.

The Decision

In Hawkes, the employee was employed by an Ontario-based subsidiary of a European company. Following the termination of his employment, the employee filed a complaint with the Ministry of Labour alleging that he was entitled to termination pay, vacation pay, and severance pay based on the employer’s global payroll.

An Employment Standards Officer (“ESO”) reviewed the claim and determined that the employee was entitled to termination and vacation pay, but not severance pay because the employer’s Ontario payroll was less than $2.5 million. The OLRB upheld the ESO’s decision, reiterating that “payroll” for the purposes of severance pay under the ESA was limited to an employer’s Ontario payroll. The employee appealed this decision.

On judicial review, the Divisional Court disagreed with the ESO and the OLRB and found that the payroll threshold for determining whether an employer is a severance payor under the ESA is based on its global payroll rather than its Ontario or Canadian payroll.

Key Takeaways

The decision in Hawkes has far-reaching implications for employers, particularly for multinational employers with a relatively small number of employees in Ontario. Unless the decision is successfully appealed, Ontario employers that are related to companies or have operations outside of the province will need to consider their global payroll in assessing their severance pay obligations under the ESA.