2021 Year in Review: Top Labour and Employment Trends

Aird & Berlis LLP’s Workplace Law Group recently presented its “2021 Year in Review: Top Labour and Employment Trends” webinar, which focused on vaccination policies, emergency government leave provisions and the Ontario government’s recent announcements with respect to non-competition clauses and the right to disconnect. We also touched on recent developments in case law around termination clauses, notably the line of case law flowing from the seminal decision by the Ontario Court of Appeal in Waksdale v. Swegon North America Inc., which held that if any part of a termination clause violates the Employment Standards Act, 2000 (“ESA”), the whole clause is void and unenforceable.

We received many questions during the webinar, but time limited our ability to answer as many as we would have liked. In this bulletin, we set out a response to groups of questions, which have been organized into common themes.

1.     Are mandatory COVID-19 vaccination policies being upheld?

Canadian courts have provided minimal direction regarding the enforcement of mandatory vaccination policies issued during the COVID-19 pandemic. However, several decisions have been issued by arbitrators engaged to resolve union grievances. These decisions offer guidance regarding how a court may approach this difficult and complex subject. In November 2021, we reported on mixed case law to date. Since then, new arbitration decisions have been issued that offer support for reasonable vaccination requirements and policies.

In Bunge, a mandatory vaccination policy was upheld by Arbitrator Herman. At issue was an oilseed processing facility in Hamilton, operated by Bunge Hamilton Canada. Interestingly, Bunge has two separate facilities in close proximity, only one of which was leased from a federally regulated organization that required Bunge to implement a mandatory vaccination policy. Nevertheless, Bunge implemented the policy across both locations, which Arbitrator Herman held was reasonable given that applying the policy to only one location would cause significant disruption to operations due to the fact that employees were routinely assigned to work and train at both locations. Arbitrator Herman also noted that testing was not a viable alternative to the mandatory vaccination policy, and the lack of prior outbreaks did not make the mandatory vaccination policy unreasonable.

In Maple Leaf Sports and Entertainment, MLSE implemented a mandatory vaccination policy that required disclosure and confirmation of vaccination status by a pre-set deadline, failing which an employee would be placed on an unpaid leave of absence and could become subject to termination. The grievor challenged the employer’s policy, alleging that it undermined seniority rights and posed an invasion of privacy. Arbitrator Jesin disagreed, finding that the use of vaccination mandates to fulfil occupational health and safety obligations is reasonable, especially if employees work in close proximity to others. As well, without requiring the disclosure of vaccination status, there would be no means to enforce a vaccination policy. Arbitrator Jesin noted that MLSE had implemented stringent controls to protect this sensitive information.

While these decisions are a welcome development to employers, each is highly fact-specific. There will also be more cases coming, particularly as terminations for failure to comply occur. We advise employers to obtain advice with respect to vaccination policies and the practical implications of enforcement, issues we addressed in our article last fall.   

2.     Can vaccination status be a condition of hire? If so, how do we address this?

While a lot of focus has been given to the implementation of COVID-19 vaccination policies for current employees, one area that is often overlooked is how such a policy will apply to new hires. 

Employers can make COVID-19 vaccination a condition of hire. To do so, we recommend that the employer clearly set this out in its general COVID-19 vaccination policy. Given the privacy considerations involved with such a policy, we always recommend that such policies detail what documentation will be required to support proof of vaccination, how that information will be stored and used, and who the information may be shared with. Given the sensitive medical nature of this information, proof of vaccination should always be treated in a confidential manner and stored in a secure location.

With respect to the hiring process itself, it is best to be up front and clear: tell the job candidate about the employer’s policy and proof of vaccination being a condition of hire. Explain the policy and how the prospective employee will be accommodated if they have a valid Human Rights Code or medical exemption. Finally, clearly set out the requirement to be vaccinated in the employment agreement and be clear that remaining up-to-date with vaccinations and boosters is an ongoing condition of employment.

3.     Can you provide details of the Ontario government’s Paid Infectious Disease Emergency Leave

As we previously reported, the Government of Ontario amended the ESA in April 2021 by introducing legislation that provides for three paid sick days for employees impacted by COVID-19 (paid infectious disease emergency leave, or “Paid IDEL”).

The legislation, entitled the COVID-19 Putting Workers First Act, grants three paid days to eligible employees who are sick with COVID-19, are required to stay home while they wait for the results of a COVID-19 test, are off work to get vaccinated or are required to self-isolate or care for a dependent who is sick with COVID-19. Employers are required to pay employees the wages they would have earned during the leave, up to a maximum of $200 a day for three days. 

The government’s Paid IDEL program was extended twice and is currently scheduled to expire on July 31, 2022.

It is important to note that employers can only apply to be reimbursed for a maximum of three days. While Paid IDEL has been extended into 2022, employees are not entitled to additional specific days for 2022. Employees are only entitled to up to three days for Paid IDEL during the government’s declared “COVID Period.” Therefore, unlike a traditional sick day policy, which might “reset” with the new calendar year, there are no “new” Paid IDEL days for 2022.

4.     Are non-compete clauses now unenforceable?

As we published late last year, the Government of Ontario recently amended the ESA so as to prohibit businesses from entering into non-compete agreements, which includes non-compete provisions within employment agreements that restrict competition after the employment relationship ends. Only two very narrow exceptions exist: (i) non-compete provisions connected to the sale of a business; and (ii) non-compete provisions for “executives,” which is narrowly statutorily defined as C-Suite officers, not merely senior managers.

To be clear, the recent prohibition against non-compete agreements only applies to provincially regulated employees in Ontario. Nevertheless, enforcing non-competes against employees outside of Ontario, and against those in Ontario who fall within the exceptions above, will still be difficult because the courts are reluctant to enforce a contractual term that has the effect of “restraining trade.” As such, non-compete provisions should be carefully drafted by experienced counsel.

An open question remained whether this recently announced change to the law in Ontario applied retroactively. In the recent decision of Parekh et al v. Schecter, the Ontario Superior Court of Justice confirmed that the statutory prohibition against non-compete provisions will only be applied to contracts entered into after October 25, 2021, when the amendment to the ESA came into effect.

5.     What are best practices for developing a “disconnecting from work” policy?

In addition to prohibiting non-compete agreements in most employment relationships, the Government of Ontario also amended the ESA to require employers with 25 or more employees to implement a “disconnecting from work” policy by June 2, 2022.

Unfortunately, while many employers in Ontario would like to prepare such a policy without delay, in part due to concerns about burnout among the workforce, to date there is no guidance from the government regarding what content such a policy must include.

We therefore recommend that employers use the remaining grace period to gather information on office culture and how a right to disconnect policy would optimally operate. Ultimately, whatever policy is developed will need to comply with minimum standards. Until those minimum standards are known, employers can and should think strategically and internally discuss the following:

• How often are there emergencies that require coordination outside of regular business hours?
• Do managers routinely contact subordinates outside of working hours, even when there is no emergency or time sensitivity?
• Do co-workers voluntarily communicate routinely outside of regular business hours?
• How much flexibility can employees have in establishing their own working hours if it means they cannot contact their co-workers outside of regular business hours?
• Will all employees have the same amount of discretion in selecting their working hours, or will it range by position and department?

Throughout the pandemic the only constant has been change, and the pace of change in our laws, policies and best practices has been extraordinary. The recent variants disrupted long-awaited plans to return to the workplace. Nevertheless, as the Omicron wave subsides, many employers see a path to a “new normal” on the horizon.

The path to a new normal is fraught with complex legal, privacy, operational and morale issues. As always, we are committed to providing continued guidance to employers navigating challenging waters. Should you have any questions, please do not hesitate to contact a member of the Aird & Berlis Workplace Law Group.