COVID-19: GETTING BACK TO BUSINESS

The short answer is yes, but there are some key considerations to remember.

This is obviously a very contentious issue.  There has been lots of debate, and the reality is that we are trying to apply age-old laws to new and novel circumstances. There is no clear legal answer to this question, but the prevailing wisdom is that employers can require that employees be vaccinated. 

It is crucial to note though that “mandatory vaccination” can have different meanings. Despite the headlines, many “mandatory vaccination policies” have stopped short of stating that an individual who chooses not to be vaccinated will lose their job. Rather, many provide for education on the benefits of vaccination and have left the door open to various ways of ensuring safety without 100% vaccination. That can involve requiring that unvaccinated employees submit to regular testing, maintain physical distancing and the ongoing use of masks, and/or work remotely.

Furthermore, human rights legislation protects employees who cannot be vaccinated as a result of medical conditions or genuinely held religious beliefs. Those employees would have a human rights claim if they were dismissed due to their failure to be vaccinated; instead they are entitled to accommodation to the point of ‘undue hardship.’ That may mean regular testing, or distancing and masking, or a work from home arrangement as needed. In appropriate circumstances, it could also mean an unpaid leave of absence. Accommodations do not need to be perfect, but they do need to be reasonable, so they may look different for every workplace.

We write these policies for a living – employers, please contact us so we can discuss your workplace and strategize on how to best structure your policies. We will help you implement policies to meet your specific needs without resulting in a costly human rights claim, the loss of a valued employee, or an unsafe workplace.

Although this does relate to personal information that is protected by privacy rights, those rights can be superseded by safety concerns in appropriate circumstances. These are appropriate circumstances; and proof of vaccination is a reasonable request. Furthermore, Toronto’s Medical Officer of Health is recommending that employees who cannot be vaccinated must show proof from their physician confirming this fact. That is not unreasonable, particularly since those employees will be entitled to accommodation.

Remember, though, that as much as vaccines are a topic of conversation, a person’s vaccination status should still be handled as a sensitive matter. An individual may be unable to get a vaccine for a reason that they have not publicly disclosed. ‘Out-ing’ them as unvaccinated can inadvertently disclose sensitive health information, so employers should proceed with caution and seek legal guidance as necessary. Even revealing the fact that an employee has been vaccinated is questionable, and businesses that confidently assure customers that “this employee” or “all of our employees” have been vaccinated are revealing personal information about those employees without their consent.

In short, yes, and yes; well, in most cases. The reality is that most workers in Canada do not have job security; what they have is an entitlement to severance if they lose their job through no fault of their own*.

The vast majority of employees can be dismissed at practically any time for practically any reason, or no reason at all, so long as that employee is paid out properly. What does this mean when it comes to vaccinations? In short, an employee who refuses to be vaccinated without any sort of human rights exemption can be let go. Employers are not required to provide a reason for termination, but they are required to pay an employee the appropriate termination pay according to the law and that person’s employment contract. Lastly, we frequently hear chatter about protections from the Charter of Rights and Freedoms, but since that only applies to government actions, it actually only covers a small subset of workers and not the actions of private employers. 

*Unionized workers and some federally regulated workers are treated differently.

Do You Get Severance?

There is an exception to the entitlement to severance: when just cause for dismissal exists. Just cause can result from misconduct, such as theft, or insubordination, which means refusing to follow a reasonable direction.

The key question is whether a rule requiring vaccination would be a reasonable one in the eyes of the law. If so, refusing to be vaccinated would constitute insubordination. That will depend very much on the specifics of the situation; it is far more likely that requiring an emergency room nurse to be vaccinated will be seen as reasonable, as opposed to a clerical worker who does their job from home. Even where it is reasonable, there would have to be clear warning of the expectations and consequences of failing to meet them

The bottom line is that employees can be dismissed if they refuse to be vaccinated without a medical or religious exemption, but the jury is still out on whether or not they could be dismissed without any severance pay. In all likelihood, some employees could be.

There were significant changes in legislation both federally and provincially to help employers and employees through the height of the pandemic, but it now looks like both of those changes will be winding down shortly.

The Canada Emergency Wage Subsidy (“CEWS”) was a program offered to employers starting in 2020 to help assist with covering employees’ wages during pandemic-related business interruptions. Payments are issued to employers relative to the actual decline in earnings in order to cover a percentage of wages, and the numbers can get complicated (read more about the sliding scale here). CEWS and the Canadian Emergency Rent Subsidy were discontinued in October 2021, and replaced with two new programs providing wage and rent support: the Tourism and Hospitality Recovery Program (“THRP”) and the Hardest-Hit Business Recovery Program (“HHBRP”). Both of these new programs have also been discontinued, with the last claim period ending May 7, 2022. The THRP provided coverage for a business in the hospitality industry that had had a significant revenue drop or for any business, charity, or non-profit that had been impacted by a lockdown. The HHBRP provided coverage for a business, charity, or non-profit not eligible for the THRP and which saw its revenue decrease by at least half in the qualifying periods.

In Ontario, the provincial government amended the Employment Standards Act, 2000 (the “ESA”) and created the Infectious Disease Emergency Leave (“IDEL”), which was intended as a job-protected leave for employees who have been infected with COVID-19 or who have been ordered to quarantine as a public health measure because of their exposure to infection. In addition, during the “COVID-19 Period”, employees who were unable to work for certain reasons related to COVID-19 were deemed to be on IDEL (the “Deemed IDEL”).

The Deemed IDEL ended on July 30, 2022*. Any employee who was on Deemed IDEL was to be recalled by this time. The provincial government has confirmed that any employee who continues to be off pursuant to a Deemed IDEL is not on this leave under the regulation.

Employees in Ontario continue to be eligible to take unpaid IDEL if they are not performing their duties due to specified reasons (see below) pertaining to a designated infectious disease. COVID-19 remains the only designated infectious disease. This is a job protected leave under the ESA, meaning that an employee may not be penalized for taking this leave, and their employer must return them to the same position they filled prior to going on leave.

The specified reasons for taking unpaid IDEL as outlined by the government of Ontario are:

1. The employee is under individual medical investigation, supervision or treatment related to a designated infectious disease. The medical investigation, supervision or treatment can be in Ontario or in another province, territory or country.

Examples include:

1. 1. An employee is not performing the duties of their position because they are under the medical supervision of a doctor:
      1. due to having contracted COVID‑19
      2. because of mental health reasons relating to COVID‑19
   2. An employee is not performing the duties of their position because they left work in order to get a COVID‑19 vaccination or are experiencing a side effect from the COVID‑19 vaccination. In both of these situations, the employee is under individual medical treatment (which includes preventative actions, such as vaccinations and recovery from associated side effects) related to COVID‑19.

2. The employee is following a COVID‑19 related order issued under section 22 or 35 of the Health Promotion and Protection Act.
3. The employee is in quarantine, isolation (voluntary or involuntary), or is subject to a control measure, and the quarantine, isolation or control measure was implemented as a result of information or directions related to a designated infectious disease that was issued:
   1. by a public health official. This means a public health official of the Government of Canada or any of the following people within the meaning of the Ontario Health Protection and Promotion Act:
      1. the Chief Medical Officer of Health or Associate Chief Medical Officer of Health
      2. a medical officer of health or an associate medical officer of health
      3. an employee of a board of health
   2. by someone who is qualified to practice as a physician or a nurse either in Ontario or in the jurisdiction where the employee is located (for example, another province, territory or another country) and who has provided care or treatment to the employee, whether or not the care or treatment was related to the designated infectious disease (such as an employee who has an immune deficiency was told by his physician to self-isolate and not go to work during the infectious disease outbreak)
   3. by Telehealth Ontario
   4. by the Government of Ontario or Canada
   5. by a municipal council in Ontario
   6. by a board of health
   7. to the public (in whole or in part)
   8. to one or more people, and
   9. through any means, including print, electronic or broadcast (for example, television or radio)
4. The employee is under a direction given by their employer in response to the employer’s concern that the employee might expose other individuals in the workplace to a designated infectious disease.
   Examples include where the employer directed an employee to stay at home for a period of time because the employee recently travelled internationally and the employer is concerned they may expose others in the workplace to a designated infectious disease.
5. The employee is providing care or support to any of these individuals because of a matter related to a designated infectious disease:
   1. the employee’s spouse (of the same or opposite sex, whether or not married)
   2. a parent, step-parent or foster parent of the employee or the employee’s spouse
   3. a child, step-child or foster child of the employee or the employee’s spouse
   4. a child who is under legal guardianship of the employee or the employee’s spouse
   5. a brother, step-brother, sister or step-sister of the employee
   6. a grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
   7. a brother-in-law, step-brother-in-law, sister-in-law or step-sister-in-law of the employee
   8. a son-in-law or daughter-in-law of the employee or the employee’s spouse
   9. an uncle or aunt of the employee or the employee’s spouse
   10. a nephew or niece of the employee or the employee’s spouse
   11. the spouse of the employee’s grandchild, uncle, aunt, nephew or niece
   12. a person who considers the employee to be like a family member, provided the prescribed conditions, if any, are met (currently there are no prescribed conditions)
   13. any individual prescribed as a family member for the purposes of this section (currently, there are no additional prescribed family members)

Examples include:

1. 1. Providing care for their child whose school or child care was closed because of a designated infectious disease (in this case, COVID‑19) or because the employee did not send their child to school or child care out of fear the child would be exposed to COVID‑19.
   2. Providing care to their child who was sick with COVID‑19 or who stayed home because of COVID‑19 protocols at the school or child care (for example, the child was showing signs of illness and the school or child care centre advised the child to isolate and get tested before returning).
      1. 1. This also includes where the employee’s child had a symptom that did not automatically require the child to stay away from school or child care, but the employee was concerned the symptom may relate to COVID‑19 and chose to keep their child home as a precautionary measure.
            Providing care or support to their child who is getting vaccinated against COVID‑19 or is experiencing side effects from the vaccine, even if the child is not under the care of a medical practitioner for those side effects.
   3. Providing care to their child because the child’s babysitter is in quarantine, isolation or sick because of COVID‑19.
   4. Providing care to a child because the summer camp that the employee’s child was scheduled to attend closed down to help prevent the spread of COVID‑19.
   5. Providing care to the employee’s 10-year-old brother, who was visiting the employee from another city without his parents, and who was unable to return home because of travel restrictions imposed to prevent the spread of COVID‑19.
   6. Providing care or support to an elderly mother who is in self-isolation due to COVID‑19.

6. The employee can be providing the care or support in Ontario or in another province, territory or country.
7. The employee is directly affected by travel restrictions related to a designated infectious disease and, under the circumstances, cannot be reasonably expected to travel back to Ontario.

   For example, this would include an employee who is on a cruise ship that is not permitted to dock in any country because of the concern that passengers are infected by a designated infectious disease.

   There may be some situations where an employee is affected by travel restrictions (for example where there are no international commercial airline flights available) but the employee has other options available to travel back to Ontario. This condition will be met if it would not be reasonable to expect the employee to use alternative options.

   What is reasonable will depend on the circumstances. For example, an employee was vacationing in Mexico City when Canada banned all flights from Mexico for two weeks. The employee could rent a car or take a series of buses and trains to return to Ontario but that would not be a reasonable expectation in the circumstances.

   This provision applies only where the employee is directly affected by the travel restrictions. In other words, it applies only where the employee’s travel back to Ontario is affected.

   This provision applies only when the employee is caught by travel restrictions while outside of Ontario.

8. The employee is subject to an order that relates to COVID‑19 under the Reopening Ontario (A Flexible Response to COVID‑19) Act, 2020 (the “ROA”).

   In order to meet this condition, the order must be directed at the employee, either individually, or as part of a group.

   For example, an order that requires restaurants to close down applies to owners of restaurants. It does not apply to the employees of restaurants even though they are affected by the closure.

   However, this does apply, for example, to an employee who is subject to a ROA order that prohibits employees who work in a long-term care home from also working for another health service provider.

   For instance, an employee who has two jobs – one at a long-term care home and one at a retirement home – who is not working at one of the homes as a result of this order, is entitled to take unpaid infectious disease emergency leave from the employer that they are temporarily not working for.

   The ROA took effect on July 24, 2020. Certain orders that had previously been emergency orders under the Emergency Management and Civil Protection Act (EMCPA) were continued as orders under the ROA on that date.

   Note that if an EMCPA order was directed at an employee (either individually or as part of a group) and, as a consequence, the employee was not performing the duties of their position between March 17, 2020 and July 24, 2020, they were entitled to take declared emergency leave or unpaid infectious disease emergency leave.

   During the COVID‑19 period (March 1, 2020 to July 30, 2022), a non-unionized employee whose employer has temporarily reduced or eliminated their hours of work for reasons related to COVID‑19 is deemed to be on a job-protected unpaid infectious disease emergency leave. See the “COVID‑19: Temporary changes to ESA rules” chapter for more information.

An employee’s entitlement to an unpaid IDEL continues as long as any of the above conditions/specified reasons continue to apply to the employee.

It remains unclear whether an employee on Deemed IDEL who was not recalled to work after July 30, 2022 was constructively dismissed at common law.

*Please note that paid IDEL will remain available to employees up until March 31, 2023.

Yes. Employers ‘rule the roost’ when it comes to making those sorts of decisions, so employers can instruct employees to return to the workplace provided that it is safe to do so and there is no contract or collective agreement that dictates otherwise. If an employee was always allowed to work from home, the employer cannot change the rules and insist that they be in the office full-time. But the reverse is also true: if an employee always had to be in the workplace, they cannot insist that they will now work from home, even if they have done so effectively for the last year and a half. The main consideration should be the ‘safe to do so’ portion – employers should always follow all public health guidelines in issuing their directives. Currently, these guidelines are still recommending that employees who can work remotely continue to do so.  

If employees are still refusing to come back even though public health has declared things safe, then they are refusing to follow a direct order from their employer. Before penalizing though, it is always worth taking a closer look at the circumstances and talking to the employee to find out why. If they’re refusing for medical reasons, that may be a unique situation that requires accommodation. If they are refusing because of childcare obligations that have changed since the pandemic began, that may also be a human rights issue that is protected by a person’s family status. A conversation with the employee may shed more light on their reasoning, and then a conversation with us can help determine what next steps, discipline or otherwise, should be taken. 

First and foremost, employers are responsible for maintaining a healthy and safe workplace. Employers are always advised to take health guidance from public health authorities; depending on current conditions that may mean implementing masks and distancing for some time until local health authorities suggest otherwise. Employers should also keep employees informed of important COVID-19 information, such as the proper procedures to follow if they are experiencing symptoms, and the important numbers to call. 

Because there will be unvaccinated employees for a number of different reasons, and there may be a need to interact closely with customers, clients and suppliers that are unvaccinated, precautions should remain in place.

Employees should be encouraged to keep their vaccination status private and discrete in the workplace. Obviously this is no easy feat considering the prevalence that vaccination rates play in the news cycle, but employers and managers should remind employees that their vaccination status is a private matter, and should not be discussed openly. This may be the safest way to ensure that an employee is not bullied or discriminated against based on what may be a protected human rights ground.

As we said, employees cannot refuse to work or choose where they will work unless they have a contractual right to do so. We have heard of many individuals insisting that they are “not ready to come back yet”, or similar circumstances. Unfortunately, this is not a choice available in most cases.

Employees may be entitled to delay a return to work if they are unable (not just unwilling) to work for COVID-19 related reasons, or if there is a human rights-based reason such as childcare obligations or medical restrictions, including mental health. While employees have a right under the law to refuse unsafe work, the Ministry of Labour has repeatedly rejected claims that a risk of COVID transmission creates an actual safety risk where the employer is complying with public health guidelines. 

We have also met with many individuals who were scared to return to work, not because of the workplace itself, but due to more general fears of being out in public or using public transit. 

The reality is that there may be coworkers present who are ineligible or unwilling to take the COVID-19 vaccine, and their colleagues may never know if employers do their part about keeping sensitive information quiet. Employers must make reasonable efforts to provide a safe workplace, and employees can only rely on their right to refuse unsafe work if there is a specific and legitimate risk in the workplace.

If an employee is refusing to return, employers should discuss the issue with them and see if there may be human rights issues or other legitimate concerns motivating their hesitancy. If there are none, employers may wish to explore a reasonable accommodation, or they may wish to draw a hard line and provide the employee with a direct warning that their continued refusal will lead to the end of their employment. As we said, employees did not gain a new right to choose when and where they will do their job as a result of COVID.

In any event employers would be advised to contact our office before making any decisions, and employees can always contact us to consult on their rights in this situation. 

If you are anything like our office, then you may have decided during the past 18 months that the virtual model works so well that you are making a permanent transition! 

For employers, there are lots of things to consider if you decide to stay fully remote. Remember that so many of your workplace policies would have been designed for an office environment, so everything from your office security policies to your technology usage policies will likely need updating. Other mandated policies, such as violence and harassment policies, will also need revisiting through a unique lens. While employers are responsible for maintaining a safe workplace, that can look quite different when the employees are all working from home.  

Employers will also need to take a practical view of the situation, and revisit the control that they once had over a traditional workplace setting. Throughout the past 18-months most employers have learned that remote work is feasible, but can often require some spontaneous flexibility and understanding. An employee’s dog might bark in the background of a video call, or their doorbell might ring unexpectedly. Employers can still set expectations for productivity, and employees will be expected to meet those reasonable expectations, but a bit of grace on both sides can go a long way.

Unless the workplace is unionized, there is no set order in which employees need to be recalled. The recalls can happen according to the needs of the business, but employers must be careful not to let any protected human rights grounds such as age, disability, family status etc. factor into their decision-making. Ontario’s Human Rights Commission has also put forth that an individual’s actual or perceived status with regard to COVID-19 infection should be considered a protected human rights ground.

While the rules can be hazy in some provinces on how to recall workers, recall notices should always be given in writing as a matter of best practice. Employers should let employees know the day that they are expected to return to work, and that their failure to return to work will be interpreted as a resignation from their position. 

Employees should also be informed of any changes that have taken place within their position, such as if their location of work has changed or if they will be permanently working from home. Employers should note though that any significant change to the working relationship must be met with the employee’s approval, otherwise the employer may be risking a claim of constructive dismissal.