Background

In October 2021, the Quebec Government passed Bill 59, An Act to modernize the occupational health and safety regime. The Bill makes substantive changes to statutes involving health and safety in the workplace. These changes will gradually come into effect, with some already in force since October and others coming into force from now until 2024.

Key Features of Bill 59

The Bill introduces new provisions to the Act respecting occupational health and safety (the “AOHS”), including the following:

  • Prevention Program or Action Plan: Workplaces with 20 or more workers must establish and implement a prevention program that is specific to the workplace. The program must include certain features, such as identifying the health and safety risks in the workplace, along with the follow-up measures that will be taken to eliminate or control these risks, among other things. For workplaces with less than 20 workers, employers must instead establish an action plan to eliminate or reduce dangers to health, safety, and wellbeing.
  • Health and Safety Committee and Representative: All workplaces with 20 or more workers must establish a health and safety committee, regardless of the workplace’s operations or industry. Committees must include at least one individual that represents the workers and another that represents the employer. Once a committee is established, workers must designate a health and safety representative who is responsible for inspecting the workplace, receiving accident notices, investigating accidents, and filing complaints. For workplaces with less than 20 workers, a health and safety liaison officer should instead be designated to facilitate communication between the employer and the workers.
  • Protection for Workers Exposed to Violence: Employers are obligated to take necessary measures to ensure the protection of a worker exposed to violence in the workplace. This extends to family violence, psychological violence, sexual violence, and physical violence.
  • Teleworking: The AOHS applies to teleworking, where applicable.

Bill 59 also introduces new provisions under the Act respecting industrial accidents and occupational diseases (the “AIAOD”), such as:

  • Presumption of Reinstatement: An employer is deemed to be able to reinstate a worker who has suffered an employment injury, even once an employee’s right to return to work has expired. This presumption can only be rebutted if an employer can show it would experience undue hardship related to reinstatement.
  • Presumption of Occupational Diseases: The AIAOD enacts the Regulation respecting occupational diseases. This Regulation contains a list of diseases that are presumed to have been contracted in the workplace.

 Upcoming Obligations

The provisions requiring prevention programs, action plans, and health and safety committees and representatives come into force on April 6, 2022. For workplaces in Quebec with 20 or more workers, employers should begin creating their prevention programs and forming their health and safety committees, in line with Bill 59’s requirements.

We will provide updates as more of Bill 59’s provisions slowly come into force and as employers become subject to additional obligations in the workplace.

On January 20, 2022 the Ontario government announced that the province will move to a modified Step 3 of the Roadmap to Reopen, pursuant to Ontario Regulation 25/22 Rules for Areas at Step 3 (the “Step 3 Regulation“).

The changes include:

  • Increasing social gathering limits to 10 people indoors and 25 people outdoors.
  • Increasing or maintaining capacity limits at 50 per cent in indoor public settings, including but not limited to:
    • restaurants, bars and other food or drink establishments without dance facilities;
    • retailers (including grocery stores and pharmacies) and shopping malls;
    • cinemas, meeting and event spaces;
    • non-spectator areas of sports and recreational fitness facilities, including gyms;
    • recreational amenities and amusement parks, including water parks;
    • museums, galleries, aquariums, zoos and similar attractions; and
    • casinos, bingo halls and other gaming establishments.
  • Allowing spectator areas of facilities such as sporting events, concert venues and theatres to operate at 50 per cent seated capacity or 500 people, whichever is less.
  • Limiting the number of patrons permitted to sit at a table in bars, restaurants, meeting and event spaces and other venues at which food or drink is sold or served, including nightclubs, restobars and strip clubs that serve food and drink to 10 people.
  • Requiring patrons to remain seated while eating or drinking at indoor restaurants, bars and other food or drink establishments (with or without dance facilities), sporting events, concert venues, theatres and cinemas, casinos, bingo halls and other gaming establishments, horse racing tracks, car racing tracks and other similar venues.

Proof of vaccination and other requirements continue to apply in existing settings.

Effective February 21, 2022, the province expects to further lift restrictions, including:

  • Increasing social gathering limits to 25 people indoors and 100 people outdoors.
  • Increasing capacity at organized public events to 50 people indoors.
  • Lifting the 500-person limit on indoor spectator events, in spectator areas of facilities used for sports and recreational fitness activities (such as sporting events), concert venues, and theatres where proof of vaccination requirements are in effect, while requiring a capacity limit of 50 per cent of the usual seating capacity.
  • Removing capacity limits in indoor public settings where proof of vaccination is required, including but not limited to restaurants, indoor sports and recreational facilities, cinemas, meeting and event spaces as well as other settings that choose to opt-in to proof of vaccination requirements.
  • Limiting capacity in most remaining indoor public settings where proof of vaccination is not required to the number of people that can maintain two metres of physical distance, including personal care services, retailers (including grocery stores and pharmacies) and shopping malls.
  • Increasing indoor capacity limits to 25 per cent in the remaining higher-risk settings where proof of vaccination is required, including nightclubs, wedding receptions in meeting or event spaces where there is dancing.

The official announcement, along with an overview of the updated public health measures, can be found here. The modified regulation with the full list of Rules for Areas at Step 3 and at the Roadmap Exit Step can be found here.

Of note to Ontario employers with office workplaces is that the Step 3 Regulation removed the requirement that all employees to work from home if possible. While the Step 3 Regulation does not provide specific instructions regarding remote work, it includes a general compliance requirement that all business operate in accordance with Ontario’s Occupational Health and Safety Act (the “OHSA“). OHSA requires all employers to take every precaution reasonable in the circumstances for the protection of their workers and to keep their workers and workplaces free of hazards. If it is not possible to have employees safely work from the office, we recommend continuing to permit remote work arrangement, or hybrid models.

Employers should continue to ensure that their business is operating in compliance with the most updated advice, recommendations and instructions issued by public health officials. If you have any questions about what the current easing of restrictions might mean for your business, please contact our team.


Many thanks to Eleanor Dennis for her assistance with this article.

Our two-part webinar series was designed to bring Canadian in-house counsel and human resources leaders up to speed on the top labour, employment and human rights law developments of 2021 and to prepare them for what’s on the horizon in 2022.

Using our “quick hits” format, we provided two content-rich presentations complete with practical takeaways in one hour per session.

Apply our Annual Canadian Employer Update Takeaways Checklist: Going into 2022 to help your organization’s leadership prepare for some of the most important employment law developments.

With a focus on mandatory COVID-19 vaccinations, among other topics, presenters for Part 1 explored:

  • Implementing mandatory vaccination polices and contractual provisions
  • Human rights considerations
  • Privacy considerations
  • Occupational health and safety considerations
  • Key differences between unionized and non-unionized workplaces
  • What does fully vaccinated mean now? The impact of future booster shots
  • Case law updates

Click here to view the webinar recording.

With a focus on labor, employment, and human rights law updates on areas that are top-of-mind for Canadian companies, presenters for Part 2 of this webinar series discussed:

  • A year in review: Top 10 employment law developments
  • Employment agreement updates
  • Practical responses to Ontario’s Bill 27, Working for Workers Act, 2021
  • Hybrid/work from home models

Click here to view the webinar recording.

 

Special thanks to guest contributors, Paul Evans, Yindi Gesinde and Monica Kurnatowska.

As I&D rises to the top of the corporate agenda, how can organizations bridge the disconnects between workplace functions in order to accelerate progress? This episode explores the findings and shares practical takeaways from our Mind the Gap series, which examines the role that compliance and employment leaders, in particular, play in strengthening corporate I&D strategies.

For additional insights, we invite you to read Part 1 and 2 of our Mind the Gap series.

Please click here for the podcast.

We are pleased to share with you the CTV News Toronto interview, “Mulling the idea of mandatory vaccination.” Kevin Coon addresses implementing mandatory vaccinations across the country.

Click here to watch the interview.

This interview was originally posted in CTV News Toronto.

To wrap up 2021, we have highlighted key developments in Canadian labour and employment law, with a focus on Ontario:

  1. Bill 27 – Working for Workers Act: On December 2, 2021, the Ontario government passed the Working for Workers Act, 2021 (the “Act“), which introduces significant changes to Ontario’s employment law, including:
    • A Right to Disconnect from Work Policies: Employers subject to the Employment Standards Act, 2000 (the “ESA“) with 25 or more employees must have a written policy which outlines employees’ right to disconnect from work. The term “disconnecting from work” means not engaging in work-related communications (e.g. emails, calls) and not sending or reviewing any messages, so that employees are free from the performance of work outside of normal working hours. Employers have six months from December 3, 2021 to implement the policy.
    • No Non-Compete Agreements: Employers subject to the ESA are prohibited from entering into non-compete agreements with employees. Non-compete agreements are those that prohibit the employee from working for or running a competitive business after the employment relationship has ended.

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.

This amendment to the ESA is deemed to be in force as of October 25, 2021, and all non-compete agreements entered into before this date will remain unaffected. Non-solicitation, confidentiality, and assignment of intellectual property agreements are still permissible.

The Act brings about a number of additional changes that will be relevant for employers, which are fully summarized here.

Continue Reading Top 10 Canadian Labour & Employment Law Developments of 2021

Background

The federal government passed Bill C-3, An Act to amend the Criminal Code and the Canada Labour Code on December 17, 2021. While Bill C-2 focused on providing support for reasons specifically related to COVID-19, Bill C-3 enhances paid sick leave and bereavement leave under the Canada Labour Code (the “CLC”) not specific to COVID-19 reasons.

Paid Sick Leave

Employees that are subject to the CLC are eligible to take 3 days of paid sick leave if they have completed 30 days of continuous employment. If employees have completed more than 60 days of continuous work, employees are eligible for one day of paid sick leave at the beginning of each month, up to a maximum of 10 days. If employees do not take all of their paid days in a calendar year, they can carry forward each day of leave to the following calendar year. However, each day that is carried forward will count toward the 10 days that can be earned in that new year.

This leave can be taken in multiple periods or all at once. However, employers can require that each period of leave is not less than one day. Also, employers can request that employees provide a certificate issued by a health care practitioner indicating their inability to work during the leave, if employees take five or more days of paid sick leave, or 3 or more days of unpaid leave. Employers have no more than 15 days from when the employee returns to work from a medical leave to request this certificate.

Bereavement Leave

Eligibility for unpaid bereavement leave is expanded by providing leave up to 8 weeks if an employee has experienced the death or stillbirth of their child, or their spouse or common-law partner’s child. The leave may be taken from the date of the death or stillbirth, until 12 weeks after a funeral, burial, or memorial service occurred, whichever is later. For employees experiencing the death of another member of their immediate family, eligibility for this leave remains at up to 10 days.

Key Takeaways

The amendments to the CLC under Bill C-3 are awaiting proclamation. In the meantime, federally-regulated employers should take note of the enhanced leaves of absence available for employees and ensure their current policies reflect the amendments. Throughout the pandemic, there has been increasing attention on paid sick leave. British Columbia has recently introduced a permanent paid sick leave program, while provinces like Ontario have implemented temporary leaves for reasons specific to COVID-19. We will continue to monitor whether additional jurisdictions in Canada follow suit of the federal government and provinces such as British Columbia.

Background

Just before the end of 2021, the Canadian Government passed Bill C-2, An Act to provide further support in response to COVID-19. Amongst other things, the Bill introduced the Canada Worker Lockdown Benefit Act, amended eligibility requirements under the Canada Recovery Benefits Act, and amended the Canada Labour Code to update leaves of absence related to COVID-19.

Key Features of Bill C-2

The enactment of the Canada Worker Lockdown Benefit Act (the “CWLBA”)

The CWLBA provides monetary relief for workers that have been affected by a COVID-19 lockdown. The CWLBA provides workers that have been subject to a declared lockdown for at least 14 days with a lockdown benefit of $300 a week. To be eligible, workers must not have quit their employment or voluntarily stopped working, unless it was reasonable to do so. Also, workers must not have failed to return to work upon an employer’s request, failed to resume self-employment when reasonable to do so, or declined a reasonable offer to work. If a worker refused to comply with a COVID-19 vaccination requirement and, as a result, lost their employment, were unable to perform self-employment work, or had a reduction in income, the worker is not eligible for the benefit. Workers may apply for the benefit between October 24, 2021 and May 7, 2022.

Amendments to the Canada Recovery Benefits Act (the “CRBA”)

The CRBA is amended to extend the eligibility of the Canada Recovery Sickness Benefit to May 7, 2022. Additionally, the maximum number of weeks that the sickness benefit is payable to a person is extended from two to six weeks, unless a higher number is fixed by regulation.

The Canada Recovery Caregiving Benefit is also extended to May 7, 2022. The maximum number of weeks that the caregiving benefit is payable to a person and persons residing in the same household is extended from 42 to 44 weeks, unless a higher number is fixed by regulation.

Employees can receive benefits from either the CRBA or the CWLBA, but not both.

Amendments to the Canada Labour Code (the “CLC”)

The CLC is amended by reintroducing a leave of absence for reasons related to COVID-19. Employees can take a leave of absence for up to 6 weeks if they are unable to work because (i) they have contracted or might have contracted COVID-19; (ii) they have underlying conditions, are undergoing treatments, or have contracted other sicknesses that would make them more susceptible to COVID-19; or (iii) they have self-isolated due to COVID-19.

An employee is eligible for a leave of up to 44 weeks if they cannot work because they must care for either a child under 12 years of age or a family member who requires supervised care, for reasons related to COVID-19.

The leaves of absence may be taken in multiple periods or together, but employers may require that each period is not less than one day. Employees intending to take this leave are required as soon as possible to give their employer written notice of why they are taking the leave and the length they intend to take. Employers are permitted to request that employees provide a written declaration supporting the reasons for taking the leave of absence.

Takeaways

While employees should take note of the new lockdown benefit and the amended recovery benefit, federally-regulated employers should be aware of the amendments to the CLC and ensure their current policies and practices are updated to address the new leaves of absence. Employers should note that on request, employees on the COVID-19 leave are entitled to be informed of every employment, promotion, or training opportunity the employee qualifies for and that arises during their leave of absence. Importantly, employers are prohibited from dismissing, suspending, laying off, demoting or disciplining an employee because the employee intends to take or has taken a leave of absence under this section. When making decisions relating to promoting or training the employee, employers are prohibited from taking the leave or intention to take the leave into account in their decision-making. However, if employees return from leave and are unable to perform the work they previously performed before their absence, employers are able to assign employees to a different position, with different terms and conditions of employment.

Measures to curb the spread of COVID-19 are continuously evolving. We will continue to monitor changes and provide updates accordingly.

On January 3rd, 2022, the Ontario government announced that, in response to the dangers of the COVID-19 Omicron variant, the province is temporarily moving back into a modified Step Two of its Roadmap to Reopen. This is effective Wednesday, January 5, 2022 at 12:01 a.m., and will last for at least 21 days, subject to trends in public health and health system indicators. These measures continue to affect Ontario’s employers, and include:

  • Reducing social gathering limits to five people indoors and ten people outdoors.
  • Limiting capacity at organized public events to five people indoors.
  • Requiring businesses and organizations to ensure employees work remotely unless the nature of their work requires them to be on-site.
  • Retail settings, including shopping malls, permitted at 50 per cent capacity.
  • Personal care services permitted at 50 per cent capacity and other restrictions. Saunas, steam rooms, and oxygen bars closed.
  • Closing indoor meeting and event spaces with limited exceptions but permitting outdoor spaces to remain open with restrictions.
  • Closing indoor dining at restaurants, bars and other food or drink establishments. Outdoor dining with restrictions, takeout, drive through and delivery is permitted.
  • Restricting the sale of alcohol after 10 p.m. and the consumption of alcohol on business premises or settings after 11 p.m., with delivery and takeout, grocery/convenience stores and other liquor stores exempted.
  • Closing indoor concert venues, theatres, and cinemas. Rehearsals and recorded performances are permitted with restrictions.
  • Closing museums, galleries, zoos, science centres, landmarks, historic sites, botanical gardens and similar attractions, amusement parks and waterparks, tour and guide services and fairs, rural exhibitions, and festivals. Outdoor establishments permitted to open with restrictions and with spectator occupancy, where applicable, limited to 50 per cent capacity.
  • All publicly funded and private schools will move to remote learning starting January 5 until at least January 17, subject to public health trends and operational considerations.

The official announcement, along with an overview of restrictions can be found here. The modified regulation with the full list of mandatory health and workplace safety measures can be found here.

Employers should carefully review the new requirements and apply them to their business as necessary. For example, all employees must perform remote work if possible. If attendance at the workplace is legally permissible, stringent safety protocols must continue to be applied and, if possible, meetings should be held via phone or video call instead of in person. Additionally, employers should take this opportunity to review and update their COVID-19 occupational health and safety procedures to ensure that they are taking all reasonable measures to protect workers from COVID-19 in light of the unprecedented threat from the Omicron variant.

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

Background

On December 9, 2021, the Ontario Government filed a regulation that extended the COVID-19 Infectious Disease Emergency Leave (“Deemed IDEL“) and the temporary measures previously introduced by O. Reg. 228/20: Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (the “ESA“) until July 30, 2022. Further details of these measures were reported in our previous blog post from June 22, 2021.

On December 9, 2021, the Government also extended the temporary paid sick leave available for reasons related to COVID-19 until July 31, 2022. We reported further details on this leave in our blog post from April 30, 2021.

Deemed IDEL

The Deemed IDEL introduced the “COVID-19 Period”, which began on March 1, 2020 and was originally set to expire on September 4, 2020. The end date of the COVID-19 period has now been extended for the fifth time to July 30, 2022. This extension means that non-unionized employees who are not performing their duties, are working reduced hours, or are receiving reduced wages due to COVID-19 can remain on Deemed IDEL, without an employer’s termination and severance obligations under the ESA being triggered. If employers temporarily reduce or eliminate an employee’s hours of work or reduce their wages, the Deemed IDEL allows these actions during the COVID-19 period to not be considered a constructive dismissal under the ESA.

Paid COVID-19 Sick Leave

The Government introduced the temporary sick leave on April 29, 2021, requiring employers to provide employees with up to three paid days for reasons related to COVID-19. These reasons can include when an employee is waiting for COVID-19 test results or when an employee is required to care for a family member experiencing COVID-19 symptoms, for example. The temporary leave, also known as the Ontario COVID-19 Worker Income Protection Benefit, was originally set to expire on December 31, 2021, but has now been extended to the summer. This means that employers are able to continue seeking reimbursement from the Workplace Safety and Insurance Board (the “WSIB“) for up to $200 per day if eligible employees are taking the leave.

Key Takeaways

If the COVID-19 period ends this coming summer, the ESA’s typical rules on layoffs and constructive dismissals will be re-triggered. As a reminder, employees’ common law rights continue to apply, as the IDEL regulation only amends the statutory rules on layoffs and constructive dismissals.

Additionally, employers should keep in mind that employees are still eligible to take the paid COVID-19 sick days in addition to the unpaid emergency leave. However, employers that already offer at least three paid sick days to employees are not required to provide employees with an additional three days of paid leave. The leave is meant to top-up entitlement when an employer provides less than three paid sick days. As a reminder, employers should file applications for reimbursement within 120 days of the date on which paid leave was provided to an employee.

Restrictions originally put in place as a temporary measure are now still engaged almost two years later. With new variants of concern and climbing COVID-19 infection rates, workplace laws and minimum protections are continuously evolving.

We will continue to monitor changes and provide updates accordingly.