Listen to this post

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.

Listen to this post

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.

Listen to this post

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!

 

Listen to this post

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.

 

Listen to this post

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.

Listen to this post

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.

Listen to this post

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.

Listen to this post

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.

 

Listen to this post

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.

 

Listen to this post

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.