As we begin 2023, we must acknowledge the unprecedented impact that the COVID-19 pandemic has had on employment law. We have written numerous blogs about a variety of employment law issues that have been created or impacted by COVID-19 over the last few years. For instance, we have written about mandatory vaccinations polices in the workplace, remote work, layoffs and terminations or dismissal during the pandemic.
One of the confusing things about COVID-19’s impact on employment law was the unprecedented speed of these changes and how these changes themselves were changed over very short periods of time. One month did not look like the next. If you are like the thousands of Ontarians who have lost their job or have had their business impacted negatively by the COVID-19 pandemic, you must be wondering how things stand now and what impact does COVID-19 pandemic have now on employment law. The purpose of this blog is to review some of the key concerns that have arisen due to the COVID-19 pandemic and to set out what the state of those issues are now and what possible changes we could see take place in 2023.
Mandatory Vaccination Policies in the Workplace
One major hot button issue in employment law was the development of mandatory vaccination policies for COVID-19 in the workplace and whether those policies were reasonable and could be enforced. Suddenly employers in all sectors and in both unionized and non-unionized workplaces were putting forth mandatory vaccination policies that employees had to abide by or risk negative consequences such as being forced to take an unpaid leave of absence or even termination.
We began writing about this topic way back in December 2020 and at that time the case law was very limited. Most cases on this topic were in the realm of human rights and took place nearly a decade prior to 2020. We have now written several other blogs to tackle this issue. However, interestingly, there is still very little case law that determined whether COVID-19 mandatory vaccination policies were reasonable and could be enforced in the non-unionized workplace context. The bulk of the case law is in unionized workplaces where arbitrators have made certain decisions about the reasonableness of mandatory vaccination policies. Most arbitrators have found that such vaccination policies are reasonable and upheld an employer’s mandatory COVID-19 vaccination policy. However, there are some cases where arbitrators have decided that an employer’s mandatory COVID-19 vaccination policy was not reasonable, nor based on current scientific views of COVID-19 at the time and, as such, was a violation of a worker’s rights. So, the case law that goes both ways – on one hand mandatory COVID-19 vaccination polices were reasonable and in some other instances they were not. These decisions are mainly in the unionized workplace rather than in the non-unionized context because they were able to be resolved faster and in a more streamlined fashion as they are arbitrated rather than judge-made rulings. Secondly, unions have the ability to see these issues addressed as a policy grievance and this does not exist in the non-unionized context.
So, what now? Can an employer enforce a COVID-19 mandatory vaccination policy in the workplace today? We believe that these issues in 2023 and beyond will remain completely industry and fact dependent and will be decided on a case-by-case basis. We believe that this is the right call as there are so many moving pieces to this issue. An arbitrator or court will look at the state that the (or any) pandemic is in, what the science is at the time, how COVID (or any virus) has evolved, how many people are already vaccinated, whether the employee can work remotely, the size of the workplace…etc. before making any determination.
Infectious Disease Emergency Leave (IDEL), Layoffs and Constructive Dismissal
To remind our readers, in response to the pandemic, the Ontario government made certain changes to the Employment Standards Act (“ESA”) by creating a new category of leave called the infectious disease emergency leave (“IDEL”). Specifically, the IDEL regime prescribes that when an employee has had their hours of work reduced or even eliminated by the employer or has had their wages reduced because of COVID-19, that these changes will deem the employee to be on leave. Further, the regime goes on to set out that these reductions in hours of work or pay will not be considered constructive dismissal. We have more information about these issues regarding layoffs and IDEL in our COVID-19 FAQs that can be read here.
Most of these government enacted leaves have expired or will expire shortly. In Ontario, paid IDEL is set to expire on March 31, 2023, where employees are still entitled to take three days of paid leave due to COVID-19. Please read our blog Update on Infectious Disease Emergency Leave for more information which can be found here.
There was a series of cases that “sort of” dealt with the issue of IDEL and whether IDEL will be a barrier for a claim of constructive dismissal. The first case that dealt with IDEL was Coutinho v. Ocular Health Centre 2021 ONSC 3076. Here the court held that IDEL will not change the employee’s right to pursue a constructive dismissal claim against their employer at common law. You can read about that case here.
Then came the case of Taylor v. Hanley Hospitality Inc., 2021 ONSC 3135. Here the judge rejected the ruling in Coutinho. In Taylor, the judge held that IDEL would bar employees from claiming constructive dismissal under the regulatory regime not only for the purposes of the ESA and IDEL but also under the common law. Then came Fogelman v. IFG, 2021 ONSC 4042. Fogelman follows Coutinho and not Taylor. In Fogelman, the judge held that IDEL does not apply and the plaintiff was allowed to pursue his claim for constructive dismissal under the common law. You can read more about Taylor and Fogelman in our blog here.
Taylor was subsequently appealed to Ontario’s Court of Appeal. The appeal was based on two issues and the second issue was the concern of the interpretation of IDEL and whether the motion judge erred in establishing that IDEL displaced an employee’s common law right to bring a claim for constructive dismissal. However, the appeal court relied on the fact that the motion judge erred in the first issue and failed to rule on the second issue of IDEL. Ontario’s appeal court went on to set out that the “statutory interpretation” issue should be remitted down to the Superior Court for determination. The Court of Appeal felt that these issues were fact-driven and would not give a “standalone declaration” of the meaning of the regulations.
So where does that leave us in 2023 with these issues? The fact is that these issues remain live issues in Ontario and are not resolved. There is no clarity in the law as to whether the IDEL regime prevents an employee from asserting a claim for constructive dismissal at common law. We believe that this is unfortunate as that this issue is a serious one and would have a rather large consequence on both employers and employees in Ontario given the influence of IDEL. We hope that we will see some guidance from Ontario’s Court of Appeal in Ontario in 2023.
The pandemic had a profound impact on remote work and we believe that remote work is here to stay in 2023 and beyond. We have written blogs about this topic throughout the COVID-19 pandemic. You can read those blogs here, here, here and here. Remote work or work-from-home arrangements were steadily increasing prior to the pandemic. However, with the arrival of COVID-19, these work arrangements have become the norm in many industries. Lately, we have seen an influx in “hybrid” remote work arrangements where an employee works partially at the physical workplace and partially at home. This arrangement usually has the employee working certain days of the week from their home and certain days at the office. In consequence, what will constitute a “workplace” has permanently expanded and it has attracted certain commensurate rights and obligations from both employers and employees.
There are some new trends in remote work that we believe we will see more of in 2023. The first is an influx of employers preparing or creating actual written policies devoted to remote work. These policies should set out the expectations and limitations of remote work for an employer’s employees and workers. For instance, the employer should still be able to direct an employee to return onsite or to the physical workplace to attend to certain duties or tasks that the employer wants the employee to do in-person. There could also be provisions in a remote work policy about where the employee is permitted to work remotely (there is a trend of employees to move to new areas of the province or country or to even move outside of Canada while working remotely).
The second major issue we see in remote work for 2023 and beyond would be the monitoring of employee performance who work remotely and concerns around privacy and transparency. The ESA was amended so that all employers with 25 or more employees must have a written policy in place relating to electronic monitoring as of October 2022. This policy must include information such as how the electronic monitoring will take place and in what circumstances as well as the purposes for which information obtained through electronic monitoring will be used by the employer. Certain questions that an employee would have regarding electronic monitoring could be questions related to what exactly is monitored (laptop, cellphone, email, internet…etc.), when does this monitoring take place (during all hours or only during business hours or some work hours), where and how this information is stored and what is this information is being used for by the employer.
COVID-19’s Impact on Notice Periods
The courts have looked at the impact COVID-19 pandemic has had on the reasonable length of notice that an employee can expect upon termination or dismissal. In considering these issues, courts have looked at how the pandemic has affected the economic climate of the country and the general ability of the employee to effectively mitigate their damages and find alternative employment. The trend here was that generally the impact of the COVID-19 pandemic was to lengthen the notice period and we can expect that trend to continue in 2023. However, a caveat to the above is that the court’s analysis about the possibility of lengthening a notice period remains fact determinant and specific to the context of that employee and the employer and industry that they are in.
There is a growing body of case law that sets out what the COVID-19 pandemic’s role is in employment law terminations. For instance, in our blogs entitled Bleak Economic Conditions May Give Rise to a Longer Notice Period and Court makes Pronouncement on Impact of COVID-19 and Job Loss, the courts set out that that the difficult economic climate created by COVID-19 pandemic would lengthen the notice period. You can read those blogs here and here.
We believe that in 2023, Ontario courts may still consider the pandemic in an assessment of a reasonable notice of termination. Thus, as the Canadian economy continues to be impacted by the COVID-19 crisis, it is likely that courts will continue to incorporate the role of the COVID-19 pandemic as part of their analysis of what constitutes reasonable notice of termination.
The COVID-19 pandemic has profoundly changed employment law and the workplace in general. It will continue to do so moving forward. These changes and issues related to COVID-19 can be difficult to figure out as they often change based on the facts at hand. Employer and employees alike should make sure to approach experienced employment lawyers in order to ensure that they are up to date on these COVID-19 pandemic issues in 2023 and beyond.