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.

Our last installment focused on preparing physical workplaces for reopening, having regard to public health and occupational health and safety requirements. At this point, employers following along are alive to critical legal considerations that are unique to physical workplaces. In this installment of The Canadian Employers’ Reopening Playbook we discuss complex legal and practical considerations to return workforces to “COVID-prepared” workplaces. Continue Reading The Canadian Employers’ Reopening Playbook (Part 3)

Planning the Return to Work Process

With the pandemic situation continuously evolving, it can be difficult to think about anything besides the immediate response. The early days of the pandemic required employers to act fast and make quick decisions to protect workers, safeguard client/customer relationships, and stabilize operations. But, as restrictions are gradually lifted, and we move beyond the immediate crisis phase, employers across Canada need to carefully plan how to reopen workplaces, resume operations, and get people back to work. A carefully planned and deliberate approach to reopening is required to protect workers in the short-term and remain resilient in the long-term.

This installment of The Canadian Employers’ Reopening Playbook will address key issues employers should consider when planning to reopen physical workspaces. Continue Reading The Canadian Employers’ Reopening Playbook (Part 2)

Why Have a Playbook?

As provincial governments move towards reopening their economies and taking steps to return to normal, employers must balance a range of important – and, at times, conflicting – considerations.

Some of the key questions may seem obvious:

  • Are we allowed to reopen and if so, when, and with what restrictions?
  • What steps are required to keep employees and all other individuals who come into or onto our premises safe?
  • How do we get our employees back to work, and what if they don’t want to return at this time?
  • How will reopening impact the availability of government support programs for us and our employees?

Over the coming days, through a series of client alerts, we will explore these questions and more, providing detailed and practical guidance that employers can draw upon and adapt for their specific workplaces. The Canadian Employers’ Reopening Playbook will break down common employment-related issues employers should consider when:

  1. Planning the return to work process;
  2. Implementing the return to work process; and
  3. Operating in a changed environment.

Continue Reading The Canadian Employers’ Reopening Playbook (Part 1)

On May 15, 2020, the Government of Canada announced that the Canada Emergency Wage Subsidy (“CEWS”) will be extended for an additional 12-week period to August 29, 2020. At the same time, the government announced retroactive regulatory changes, and legislative proposals expected to come into force at a later date. These changes were introduced in an effort to promote employment and stimulate economic recovery as restrictions are gradually lifted across Canada.

Immediate Changes to CEWS Eligibility:

The government introduced a series of regulations extending eligibility for the CEWS to the following categories of employers:

  • Partnerships with one or more non-eligible members will be eligible so long as non-eligible entity partners control a minority of the partnership’s interests at fair market value during the qualifying period;
  • Indigenous government-owned corporations that are carrying on a business and are tax-exempt under paragraph 149(1)(d.5) of the Income Tax Act, their wholly-owned subsidiaries that are carrying on a business and are tax-exempt under paragraph 149(1)(d.6) of the Income Tax Act, as well as partnerships where the partners are members of Indigenous governments and eligible employers;
  • Non-public education and training institutions, including for-profit and non-profit private colleges, schools, and institutions (i.e., arts schools, language schools, driving schools, flight schools and culinary schools);
  • National-level Registered Canadian Amateur Athletic Associations that are tax-exempt under paragraph 149(1)(g) of the Income Tax Act; and
  • Registered Journalism Organizations that are tax-exempt under paragraph 149(1)(h) of the Income Tax Act.

Continue Reading Federal Government Extends the Canada Emergency Wage Subsidy

We are pleased to share with you the BNN Bloomberg article, “Breaking down CERB guidelines.” Kevin Coon was interviewed for this Q&A regarding the Canadian Emergency Response Benefit (CERB).

Click here to view the article

This article was originally posted in BNN Bloomberg

As Ontario prepares to reopen the economy, the province is providing employers with safety guidelines to protect workers, customers, and the general public from COVID-19. The guidelines provide practical recommendations so that employers reopen in a safe and responsible way. Continue Reading Ontario Releases Safety Guidelines for Reopening to Protect Public from COVID-19

On April 25, 2020, the Ontario government announced that it is providing frontline staff with a temporary pandemic payment. The payment compensates frontline workers for dedication, long hours, and increased risk while working to contain the COVID-19 outbreak.

What does the payment include?

Eligible workers will receive an increase of four dollars per hour worked on top of existing hourly wages, regardless of the qualified employee’s hourly wage. In addition, employees working over 100 hours per month will receive lump sum payments of $250 per month.

Which workplaces are eligible?

Eligible workers include staff in:

  • Acute hospitals
  • Long-term care homes (including private, municipal and not-for-profit homes)
  • Licensed retirement homes
  • Home and community care
  • Homes supporting people with developmental disabilities
  • Intervenor residential sites
  • Indigenous healing and wellness facilities/shelters
  • Shelters for survivors of gender-based violence and human trafficking
  • Youth justice residential facilities
  • Licensed children’s residential sites
  • Directly operated residential facility ― Child and Parent Resource Institute
  • Emergency shelters
  • Supportive housing facilities
  • Respite/drop-in centres
  • Temporary shelter facilities, such as re-purposed community centres or arenas
  • Hotels/motels used for self-isolation and/or shelter overflow
  • Adult correctional facilities and youth justice facilities in Ontario

On April 28, 2020, the provincial government clarified that the payment also applies to respiratory therapists, mental health and addictions workers in hospitals and congregate care settings, public health nurses and paramedics.

The payment is designed to apply to frontline employees, and does not apply to management.

How long does the payment last?

The temporary payment begins immediately, and continues from April 24, 2020 until August 13, 2020.


We are closely monitoring the situation and will continue to provide updates as they become available.

Please contact your Baker McKenzie lawyers (above) for more information.

You can also access our Coronavirus Resource Center for information on the impact of this situation on your business and what you can do to manage these risks. It covers areas of immediate concerns such as employer obligations, contract issues, supply chain disruption, financing and force majeure, as well as more forward looking issues such as practical impact on transactions and IPO activity.