In re-examining your workplace, consider your workplace realities and what is and will be important to address and what you should be prepared to deal with.
In doing so, consider what your employees’ current terms and conditions of employment are, relative to what they should be going forward to protect your business, reduce potential liabilities, and increase inclusion.
Meaning? When the pandemic and all related public orders became our new reality, many employers pivoted and adapted their workplaces – including the how, where, and sometimes when their work is performed. At the time, the actual work performed was altered for business viability or to keep employees working rather than on IDEL (Infectious Disease Emergency Leave).
In so pivoting, significant, or collectively significant, changes to employees’ terms and conditions of employment were made requiring the change of the location of work from on-site to remote work.
The duties and responsibilities may also have changed through the creation of new services and products, new COVID-19 related duties and responsibilities (for example, screening or sanitizing roles), or “make work” projects.
Hours of work were also significantly changed to provide more flexibility in relation to core working hours given child, elder, or other care needs.
Where significant changes to employment terms and conditions occur without consensus or express contractual language permitting them, no matter how noble the intent, employers are exposed to the liability of constructive dismissal claims under the common law. It is noteworthy that only changes to hours (to provide flexibility) wouldn’t be taken into consideration as part of a constructive dismissal claim. Such changes constitute accommodation measures under the Human Rights Code (Code) to address the fact that many employees who work remotely are fulfilling additional roles of full-time caregivers, teachers, personal support workers, and pseudo-nurses to their parents and/or children that trigger “family status” protections under the Code.
The COVID-19 amendments to the Ontario Employment Standards Act, 2000 (ESA) do not protect employers from such common law claims. Meaning, if significant changes to the location and type of work that an employee performs do not reflect the job the employee signed up for, they can form the basis of a constructive dismissal claim for wrongful dismissal damages.
What does this mean for you? As a starting point:
- Ensure your employment contracts permit for unpaid periods of employment and other changes in compensation, location and hours of work, and that duties and responsibilities do not constitute a constructive dismissal.
- Ensure that your workplace policies do not inequitably impact employees who are the primary caregivers (which most often are female). Blanket workplace policies that target “all employees” – including, for example, those that require all employees return to work on-site without flexibility (hours or otherwise) for caregiver responsibilities – will negatively impact employees with such responsibilities through discriminatory losses in income, paid vacation, and employment during the pandemic.
- Update your employment contracts and workplace policies to reflect your position on mandatory vaccinations. Is your workplace one where the nature of the work or the clientele require from a public and/or occupational health and safety perspective a requirement that all employees be vaccinated reasonable? While the issue of mandatory vaccinations has yet to be legally determined (and likely won’t be resolved in the short-term given the evolving factual circumstances of increasing numbers of the public/clientele being vaccinated), one way to avoid many of the issues associated with having a mandatory vaccination policy is for employers to be clear upfront and include the same in any new employment contract as a term and condition of employment (i.e., that the employee agrees to be vaccinated and continue to keep current their vaccinations in relation to any public health illness in a timely manner).
- Ensure your workplace policies and procedures are updated to cover recent ESA amendments such as the April 29, 2021 Ontario COVID-19 Worker Income Benefit that provides employees with up to three paid days of IDEL in prescribed circumstances from their employers, which is employer-reimbursed by WSIB as prescribed.
- Ensure you have an enforceable termination clause that limits your liability to that under the ESA in order to prevent the applicability of the common law.
Disclaimer: Information made available in this article is provided for general information purposes only and is provided without representation for its accuracy or completeness. It is not legal advice and should not be relied upon. You should not take any action or fail to take any action based on the information set out in this article or on this website. Consult a lawyer at Sullivan Mahoney LLP and seek professional legal advice tailored to your unique situation.
