Infectious Disease Emergency Leave

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 (“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 (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 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.

  1. Ontario severance pay obligations are based on global payroll: In Hawkes v Max Aicher (North America) Limited (“Hawkes”), Ontario’s Divisional Court ruled that the $2.5 million payroll threshold for triggering the severance pay provisions under the ESA are based off of an employer’s global payroll. This means that many employers who were not paying severance pay will now have to do so.

Please see our full blog on the decision here.


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

On June 4, 2021, the Ontario Government announced that the “COVID-19 Period” and the temporary measures introduced by O. Reg. 228/20: Infectious Disease Emergency Leave (the “Regulation”) under the Employment Standards Act, 2000 (the “ESA”) have been extended until September 25, 2021.

The Regulation, which was first introduced in May 2020,

Following almost a year of uncertainty, the Ontario Superior Court finally clarified that temporary layoffs during the COVID-19 pandemic can amount to constructive dismissal under the common-law. Ontario employers should take note of this important decision if they have or are considering temporary staffing cuts, including temporary reductions in hours.
Continue Reading COVID Layoffs Can Lead to Employer Liability, Ontario Court Says

After almost six months of school closures across Ontario due to the COVID-19 pandemic, school is now back in session for most students. The provincial government’s education model includes a voluntary back-to-school regime that provides parents and students with the option to engage in online learning from home or to have children physically attend at school. With recent cases of COVID-19 on the rise this fall, outlined below is a summary of what employers should be aware of regarding their obligations to accommodate employees with children that are not attending in-person school or childcare.[1]
Continue Reading Back to School: An Employer’s Obligations to its Parental Employees