Immunity to Lawsuits? Deciphering COVID-19 Vaccines’ Impact on Businesses

covid 19 immunity to lawsuits

The first year of the COVID-19 pandemic shone the spotlight on a number of new legal issues relating to testing, masking, and lockdowns – it was just eight months ago when Ontarians first faced fines for something as innocuous as sitting on a park bench.

The good news is that Canada has now reached a monumental milestone in its fight against the pandemic. Health Canada, on December 9, 2020, announced that it had authorized the Pfizer COVID-19 vaccine for Canadians 16 years of age and older. This vaccine is already being administered to health care and long-term care workers at Toronto and Ottawa-area hospitals.

While the introduction of the COVID-19 vaccine represents a glimmer of hope for all of us who yearn for a return to “normal” and “precedented” times (whatever that may be), it will also introduce a number of new legal issues relating to human rights, privacy rights, and workplace safety. In particular, questions remain with respect to business owners’ ability to exclude non-vaccinated customers and clients from their premises, and regarding the newly proposed “COVID immunity passports” that are to be provided to those who receive the vaccination.


COVID-19 Vaccines vs. Other Vaccines – The Legal Parallels

A number of legal pundits have attempted to draw a legal analogy between the COVID-19 vaccine and the flu vaccine, in part because flu vaccines have been available since the 1940’s and a number of legal decisions exist relating to employees’ refusal to receive the flu shot. Just two years ago, a union successfully brought a grievance to strike down a Toronto hospital’s workplace policy that its nurses must either receive the annual flu vaccine or wear a surgical mask in all areas of the hospital where patients are present (what is colloquially called a “vaccinate or mask policy”).

However, health experts will undoubtedly point out key differences between the flu vaccine and the COVID-19 vaccine, beyond the fact that the latter is designed to protect people from a much more lethal virus. For one, the COVID-19 vaccine has a reported ~90% effective rate during clinical trials, while the seasonal flu vaccine, according to the U.S. Centre for Disease Control, displays effectiveness in the range of 40% to 60%. In addition, the possibility of asymptomatic transmission of COVID-19 appears to be much higher than the risk of asymptomatic transmission of the flu.

In the above-mentioned case, the arbitrator, in finding the vaccinate or mask policy unreasonable, specifically pointed to the lack of scientific evidence concerning asymptomatic transmission of the flu, and the lack of scientific evidence relating to the use of masks in reducing the transmission of the flu virus to patients. In fact, the arbitrator specifically surmised that perhaps if a “better vaccine” and more robust medical literature became available, the entire matter might be appropriately revisited.

If the COVID-19 vaccine is found to be a “better vaccine” than the existing seasonal flu vaccines, then the line of jurisprudence relating to the flu vaccine may be informative at best, but certainly not determinative.

Instead, we should perhaps attempt to draw parallels between the COVID-19 vaccine and childhood inoculation programs (e.g. vaccines against measles, mumps and rubella), as these vaccines are found to have 90% or better efficacy. In Ontario, these vaccines are referred to within the Immunization of School Pupils Act, and parents are required to report to their local medical officer of health, vaccines administered to their school aged children.

Even for these vaccines, which are explicitly mandatory, rather than voluntary (as continuously stressed by government officials regarding the COVID-19 vaccine), exemptions can be obtained – both for medical reasons (if a child has a medical condition that prevents them from receiving the vaccine) and religious reasons (if the vaccination requirements conflict with sincerely held convictions based on religion or conscience). This means that there are children in Ontario who are attending schools without having received “required” vaccinations – though they may be removed from school during a disease outbreak.

But since Ontario businesses do not require patrons to provide proof of childhood vaccinations before entering their stores, there is little reason for the rubella vaccine to become a thorny issue for businesses and customers. So while the COVID-19 vaccine may end “unprecedented” times, it will also bring forth legal issues never before addressed with other vaccines.


Ottawa Businesses and the COVID-19 Immunity Passport

There is already some good news for Ontario business owners – the recently enacted Supporting Ontario’s Recovery Act protects businesses from legal liability relating to an individual being infected with or exposed to COVID-19 within a business’ premises, as long as said business made a good faith effort to act in accordance with public health guidance, and with federal, provincial and municipal laws relating to COVID-19, and have not been grossly negligent. This imposes a high legal hurdle for someone who contracts COVID-19 in a store or restaurant, to bring a successful lawsuit against the business owner.

However, even with statutory protections in place, other reasons exist for businesses to consider requiring that individuals visiting its premises be vaccinated. For one, it may be a smart practice to attract customers – 83% of Canadians surveyed this past September agreed with indoor masking policies (including within stores), and governmental enforcement of these policies, and it is likely that consumers will continue to choose to shop at those businesses that have put proactive measures in place to protect them. And beyond the legal obligation for businesses to protect their own workers, it makes sense for businesses to take all reasonable steps to prevent an outbreak which would temporarily close the business and potentially damage its reputation.

We know that Ontario’s Ministry of Health is planning to issue “immunity passports” to those individuals who receive a COVID-19 vaccine, as proof of inoculation. Minister of Health Christine Elliott has already hinted that the passport may be needed to enter certain public venues, such as movie theatres. Such a concept is not new – the World Health Organization has been issuing International Certificates of Vaccination since the 1950s – but what is new, and still in question, is how the COVID-19 immunity passport will be regulated by the Ontario government. Without any legislative intervention, the immunity passport may be worth less than the paper it is printed on.

What will such legislation look like? One possibility is that the Ontario government may introduce broadly worded legislation, like Ontario Regulation 364/20, which required businesses to screen all workers and essential visitors entering their work environment, without providing detailed guidance as to how the screening should take place or how long records should be kept.

Another possibility is that the provincial government may take a more laissez-faire approach and allow municipalities and regions to enact by-laws regarding immunity passports first, and only intervene when absolutely necessary. With masks, the City of Ottawa passed its by-law in July while the Ontario government only introduced provincial-wide regulations (Ontario Regulation 546/20) in October, once the second wave hit.

Similar to the masking by-laws, we expect that vaccine legislation (or by-laws) would address issues relating to exemptions, such as those individuals who may not be able to receive the vaccine due to allergy issues; however, it’s unclear when any proposed legislation will be introduced, let alone any timelines regarding how and when the vaccine will be distributed to the general public.

What should Ontario businesses do in the meantime? Begin considering the types of policies you want to introduce regarding the immunity passport. In particular, discuss the following with your legal counsel:

  • how you would treat those individuals with valid vaccine exemptions versus those who do not have an immunity passport without a valid exemption;
  • the likelihood of receiving a human rights claim if you have a vaccination policy without any exemptions spelled out – the more restrictive a policy, the more likely it will be legally challenged;
  • how your policy would apply in the first months of 2021, when most people may not have had a chance to be vaccinated due to supply issues.

Once the legislation regarding the immunity passport is introduced, you will be poised to implement your policies quickly (subject to final legal review).

Lastly, if you want a sneak peek at the new legislation, keep a close eye on the aviation industry – the federal Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19 which addressed face masks within the aviation industry was introduced in June 2020, even before the City of Ottawa announced its Temporary Mandatory Mask By-law in July.


Businesses are Employers Too!

It may be trite to say, but almost every Ontario business is also an employer, and must follow all legal obligations relating to being an employer. Interestingly, the Supporting Ontario’s Recovery Act does not provide any legal immunity to employers – in fact, it specifically allows employees who are not covered under Ontario’s WSIB scheme to sue their employers in court if they contract COVID-19 at work. If you haven’t already done so, we recommend speaking with an employment lawyer about how to implement COVID-19 related policies within the workplace.

One thing is for certain: employers have a statutory duty under Ontario’s Occupational Health and Safety Act to take every precaution reasonable in the circumstances for the protection of its workers, and this duty may be legal justification to introduce a COVID-19 vaccine workplace policy.

At the same time, employers need to build in some room in any COVID-19 vaccine policy for human rights related accommodations, on similar grounds as to those exemptions relating to childhood vaccinations. Under the Ontario Human Rights Code, employers must accommodate employees to the point of “undue hardship”, a somewhat complicated legal concept that essentially describes the breaking point at which a reasonable employer may not be expected to accommodate their employee because of excessive costs or health and safety issues.

The key point about “undue hardship” is that what constitutes “undue hardship” for one employer may not translate to another workplace. Generally speaking, we would expect that workplaces like retirement homes or long-term care facilities may be permitted to implement a policy which compels its employees to be vaccinated. One hint comes from a fresh off the press arbitration decision involving a retirement home in Woodstock, Ontario, where an arbitrator found a workplace policy which required all employees to be tested for COVID-19 once every two weeks to be reasonable, despite the intrusiveness of such tests.

Another recent labour arbitration decision upheld an employer’s decision to terminate a Toronto Pearson Airport screening officer for cause, where the employee failed to follow its COVID-19 related policies by working (instead of isolating) while awaiting results of a COVID-19 test.

While there have only been a few cases tested by arbitrators to date, the mere fact that COVID-related litigation has already taken place further underlines the importance of receiving tailored legal advice to your workplace – what may be a reasonable policy within one work environment may not be reasonable in another.

David SpearsDavid Spears
613.237.4000 x256

About the author: David Spears is part of Brazeau Seller Law’s employment law group and his practice is focused on assisting employers and employees to successfully resolve workplace conflicts. He works with clients to ensure that appropriate employment agreements and policies are implemented within the workplace, and provides legal assistance to Ottawa-area businesses in relation to COVID-19 issues.

Note to readers
The above-noted information does not constitute legal advice and is of general application only. The information regarding COVID-19 is rapidly evolving and the information contained herein is accurate only up to the date of publishing (December 15, 2020).

COVID-19 Privacy and Data Collection

corona virus

Best Practices relating to privacy and data collection in the age of COVID-19 

While some businesses are considering reopening its physical doors as Ontario heads into Stage 2 of its reopening plans, and others are implementing long-term work-from-home measures, privacy and data collection issues will undoubtedly continue to arise more frequently as a result of the COVID-19 pandemic.   

Canada is home to both federal-level and provincial-level authorities that oversee and regulate privacy-related legislation. While privacy laws continue to apply during the COVID-19 pandemic, these regulatory bodies have made it clear that these laws should not act as “a barrier” to appropriate information sharing. That being said, now is the perfect time for all organizations to implement best practices on how it intends to collect, store, and use private information – below, we have summarized and highlighted privacy-related best practices with respect to personal information, employee information, and data collection tips to pass onto your employees.


Best practices for organizations that collect, use, and disclose “personal information”

During the COVID-19 health crisis, all organizations must continue to comply with privacy laws and act responsibly, particularly with respect to handling personal information, and information about individuals’ health, travel, movements and contacts or association. As “personal information” is broadly defined within legislation, and generally includes all recorded information about an identifiable individual, organizations must be well aware of their statutory obligations relating to collecting personal information.

There exists privacy legislation at both the federal and provincial levels that govern the collection, use, and disclosure of personal information. Most private sector Ontario-based organizations that collect personal information must continue to operate in accordance with the Personal Information Protection and Electronic Documents Act (“PIPEDA”), which allows organizations to collect, use, or disclose information only for purposes that a reasonable person would consider to be appropriate in the circumstances. In most cases, personal information can only be collected, used, or disclosed after obtaining meaningful consent from the individual in question. Key privacy principles that organizations should keep in mind when collecting, using, or disclosing personal information include:

  1. Privacy laws apply to all personal information even when using public sources such as social media.
  2. Personal information collected, used or disclosed with respect to COVID-19 issues must not be used for other reasons. Individuals would not reasonably expect that their information collected for COVID-19 related issues could become available for commercial purposes.
  3. Any personal information collected with respect to COVID-19 issues ought to be properly destroyed following the end of the COVID-19 crisis.
  4. De-identify personal information/data whenever possible.
  5. Ensure physical (e.g. a secure safe) and/or electronic safeguards (e.g. encryption methods) are in place to protect personal information collected.
  6. Ensure there are strict time limits on measures implemented to collect personal information in response to the crisis.


Best practices relating to privacy of employees’ information (e.g. temperature testing results)

There is no private sector privacy legislation that is directly applicable to employee privacy in Ontario, save and except for those private sector organizations that qualify as “federal works” (e.g. banks, airlines, telecom companies). While there is provincial legislation relating to “personal health information”, generally speaking, employers who hold personal health information are not governed by these laws, unless they receive personal health information from a defined health information custodian – such as a physician. When an employer receives personal health information from a defined health information custodian, the employer may, in general, only use or disclose the information for the authorized purpose for which the information was disclosed or for the purpose of carrying out a statutory or legal duty. 

While privacy laws are not meant to prevent an employer taking reasonable precautions to ensure the health and safety of its employees, in order to avoid privacy violations at common law, any COVID-related information directly obtained from employees (e.g. temperature testing results, other health screening information) should not be collected, recorded, stored, used or disclosed for any purpose aside from determining whether the employee should be permitted to enter and/or stay within the workplace. 

What is clear is that employers have a legal obligation to provide a safe workplace for employees. While the Information and Privacy Commissioner of Ontario (the “IPC”) has not provided specific guidance with respect to obtaining and storing COVID-related employee information, some best practices to follow include:

  1. Obtaining employees’ consent before having their temperature checked.
  2. Make clear why the information collected is needed and explain how the information will be stored then destroyed by the organization.
  3. Anonymizing information collected.
  4. Limiting access to any information collected to only designated individuals who are well informed about the privacy-related obligations of the employer.
  5. Only obtaining as little information as needed to fulfill the purpose of maintaining a safe work environment. Do not ask general questions relating to an employee’s disability that is not related to COVID-19.
  6. Ensuring electronic encryption of stored information.

In addition, employers should consider human rights related issues when conducting medical tests and safeguarding employees’ information. The position of the Ontario Human Rights Commission, a provincial government agency that administers human rights legislation, is that medical tests (such as temperature testing) in determining an employee’s fitness to perform their job duties may be permissible, if employers only obtain information that is reasonably necessary to determining the employee’s fitness to perform on the job. At the same time, organizations should not seek information from medical testing that may identify a pre-existing disability and employees’ test results must not lead to automatic negative consequences such as termination.


Privacy/data collection tips to pass down to your employees

The COVID-19 pandemic has led to the creation of numerous remote workplaces across the province, and it is inevitable that a significant portion of the Ontario workforce will continue to be encouraged to work from home, until a vaccine for COVID-19 is found. When employees are working from home, employers must be aware of their obligations to ensure that their employees use secure and appropriate remote work procedures and that the privacy and the security of personal/confidential information (e.g. client information, trade secrets) is not put at risk.

In particular, Ontario employers and organizations should be aware of what the IPC has recommended with respect to best practices during the COVID-19 pandemic, which we have summarized below. 

  1. Ensure that USB drives containing work-related information are encrypted and password protected.
  2. Protect all mobile devices with strong passwords and lock your device when not using them.
  3. Remove information from physical offices only if absolutely necessary to carry out work tasks and duties.
  4. Keep the organization’s anti-virus software up-to-date.
  5. Make it clear that personal email inboxes are not to be used for work purposes.
  6. Encourage your employees to check that they are sending their emails to the correct recipient, particularly for emails involving personal data, prior to sending the email.
  7. Securely store electronic devices and paper records in public spaces.

Issues relating to privacy and data collection can be complicated and can lead to potential complaints and legal proceedings relating to privacy breaches or unauthorized access to personal information. We encourage you to consult a member of Brazeau Seller’s employment law team when you learn of privacy and data collection related issues within your workplace.

Our Team

David Spears
613.237.4000 x207

Download the COVID-19 Privacy and Data Collection PDF

    Note to readers:

    The above-noted information does not constitute legal advice and is of general application only. The information regarding COVID-19 is rapidly evolving and the recommendations contained herein are accurate only up to the date of publishing (June 18, 2020).

    Covid-19: Return to Work Playbook

    City scape of law firm buildings

    100 Queen Street
    Suite 700
    Ottawa, ON
    K1P 1J9
    T: 613.237.4000
    F: 613.237.4001

    1. The Ontario Framework:  Re-opening Amid Uncertainty

    The progress we make regarding reducing the spread of COVID-19 in Ontario will determine how and when a return to the workplace is permitted. The Ontario government created a province-wide framework and workplace specific guidelines to assist employers in planning a return to the workplace. As the framework and guidelines are subject to change, it is important to regularly monitor official information provided by the government. Specifically, the following are suggestions for employers:

    Communicate with your management team and employees – ask for input and ideas for creating a safe working environment.

    • Review and understand the current Ontario framework. Identify where your business fits in:

    • Evaluate your workplace taking into consideration the official guidelines and plan to adapt your workplace as best as possible within them. The Ontario government has published workplace guidelines to assist re-opening:

    • The Ontario government will announce when specific businesses can open in accordance with its framework and guidelines. 
    • Follow the latest public health authority advice for best practices. 
    • Remain flexible and be creative.
    • Communicate with your management team and employees – ask for input and ideas for creating a safe working environment.
    • Consider which workplace modifications are short-term and which are here to stay for the foreseeable future.

    2. Health and Safety Considerations

    As many employers are considering the various ramifications of re-starting or ramping up their businesses in the age of COVID-19, an obviously important consideration is the health and safety of their employees. Employers have an obligation to take all reasonable steps to keep workers and workplaces safe and free of hazards, including those related to COVID-19. These obligations are codified in the Occupational Health and Safety Act (OHSA) for Ontario employers (or similar legislation for those that fall under Federal jurisdiction or that of other provinces). Employers should be familiar with legislative requirements specific to their workplace and work with their health and safety committee or worker representative to ensure compliance.

    Every workplace is unique, and it is important for every employer to conduct a thorough analysis of risks in their workplace related to COVID-19, and how those risks can be mitigated. These mitigation strategies may take a variety of forms, some that will be common across industries and workplaces, and some that will be unique to the dynamics within an employer’s particular workplace.

    Every workplace is unique, and it is important for every employer to conduct a thorough analysis of risks in their workplace related to COVID-19, and how those risks can be mitigated.

    With time, information with respect to COVID-19 and its impact on the workplace will continue to be updated. It is important therefore to be consistently monitoring reliable websites – for example, those of the Federal and Provincial Governments, Public Health Authorities, and relevant industry publications – to ensure that you are armed with the most current information. It is also important to constantly monitor your current health and safety mitigation strategies to ensure they remain up to date with best practices, are effective, and are being consistently enforced.

    We set out below several suggestions and considerations.


    (i)     Communication 

    It is critical to be intentional and clear with all communications with staff during the COVID-19 pandemic to not only address concerns but to ensure that staff understand their obligations and entitlements, and the employer’s expectations as the workplace re-opens.

    • Plan – create a communication plan, and update it continually, giving thought to what needs to be communicated to different levels within the organization.
    • Method – ensure that your employees know how information will be provided (e.g. company email, website, portal, postings or even text message).
    • Accuracy – ensure the information provided is accurate. Rely on appropriate authorities – government, health authorities, industry regulators etc.
    • Message – Be clear and concise about plans for re-opening the business, steps the business is taking to protect workers, training requirements, timing etc. Ensure that the employees understand that their health is a top priority.
    • Feedback – Create a way for employees to ask questions, seek clarity and raise concerns or share suggestions that they may have.
    • Point Person – Advise staff of the individual (e.g. health and safety representative) who is responsible for implementation of health and safety program.
    • Repeat – Reinforce key message points by repeating them within your frequent updates.


    (ii)     Education and Training

    As part of their obligation to protect workers, employers must ensure that employees are trained on safety practices, precautions and procedures relating to COVID-19.

    Employers must ensure that employees are trained on safety practices, precautions and procedures relating to COVID-19.

    • Best Practices – Ensure your staff are advised and that they understand the employer’s policies and practices relating to COVID-19 health and safety.
    • Timing – Consider a general re-orientation for staff as they return to work.
    • Checklists – Provide staff a simple and clear checklist to refer to on an ongoing basis.
    • Responsibilities and Rights – Ensure that each employee understands his/her responsibilities and rights in the workplace.
    • Records – Keep a record confirming that the employee has received COVID-19 orientation and training.
    • Updates – Have a plan to communicate new policies or practices or changes to them.

    (iii)    Business Assessment

    As part of your health and safety analysis, consider different ways to conduct your business and create new working norms in the new COVID-19 context. Such an analysis should consider not only the down-side risks, but also the up-side benefits.

    Consider adjustments in staffing levels. Identify those positions that are critical and those that may become redundant. Make difficult decisions carefully, but don’t delay.

    • Alternatives – Consider whether there are alternative business strategies allowing you to deliver your product or service in a more COVID-19 safe way (e.g. delivery services rather than in-shop, electronic meetings rather than face-to-face, eliminate business travel, innovative use of technology).
    • Work from Home – Consider whether it is possible to implement or continue work-from-home practices.
    • Workplace Shutdowns – Be prepared for periodic government mandated business closures and lockdowns. There is concern that local and regional outbreaks could force further closures and businesses need to be prepared to respond from a human resources perspective.
    • Staffing Adjustments – Consider adjustments to staffing levels in light of changes in product demand etc. Identify those positions that are critical and those that may become redundant. Make difficult decisions carefully, but don’t delay.

    (iv)  Hygiene and Cleaning

    It cannot be overstated: basic hygiene and cleaning practices are fundamental to mitigating COVID-19 risks in the workplace.

    • Hand hygiene – Communicate expectations with respect to frequent and proper hand washing and use of alcohol-based hand sanitizer. Ensure that there is access to hand washing sinks for both employees and customers.
    • Sanitizers and wipes – Ensure that the workplace is supplied with enough sanitizers and wipes to allow employees and customers to clean hands and workstations frequently.
    • Surfaces and Equipment – Ensure that surfaces and equipment – particularly those that are high use or shared (doorknobs, light switches etc.) – are cleaned regularly and frequently. Where possible, limit the sharing of phones, computers, desks, offices and work tools.
    • Reminders – Post reminders throughout the workplace with respect to hygiene and cleaning.
    • Housekeeping – Establish and maintain regular and frequent housekeeping procedures. Keep checklists and records to ensure compliance.

    (v)  Personal Protective Equipment and Barriers

    As part of your mitigation strategies, consider the use of personal protective equipment (PPE) – e.g. masks, gloves, goggles, face shields etc.

    Consider the use of personal protective equipment (PPE) as part of your mitigation strategies. (e.g. Masks, Gloves, Goggles, Face Shields, etc.)

    • PPE Supplies – Ensure they are sourced and supplied so that all employees have access to PPE that are effective in mitigating risk and appropriate for the employee’s tasks. If the PPE is reusable, ensure that it is properly cleaned and sanitized.
    • Monitor – Ensure that employees are trained with respect to, and faithfully complying with, PPE policies.
    • Cautions – Remind employees regularly, and within various workplace postings and policies, that PPE is not a failsafe solution, but only one of a variety of strategies that need to be employed in the workplace (e.g. it does not permit the relaxing of cleaning or physical distancing measures).
    • Barriers – Where physical distancing is not practical or effective, consider physical barriers, such as plexiglass, or other engineered structures that would afford employees protection.

    (vi)   Physical Distancing

    It is important to minimize close contact within the workplace. Public Health recommendations for physical distancing should be continued within the workplace – two metre distance between employees.

    • Office Layout – Evaluate workplace layout and configurations to ensure greatest compliance with physical distancing. Where the workplace has narrow aisles or hallways, consider making them unidirectional if possible, with floor markings at two metres for reference.
    • Remote Work – Encourage remote work and virtual meetings where possible.
    • Stagger or Alternate Shifts – Consider staggering workdays so the number of employees within the office or workplace is minimized.
    • Use of Common Rooms – Limit the use of common rooms, such as lunchrooms or reception areas, in order to maintain distance. Where needed, consider staggered use with a fixed number of employees or clients at one time, with cleaning between each use.

    (vii)   Employee Monitoring and Screening

    As part of an employer’s risk mitigation strategies, consider appropriate policies for employee monitoring and health screening to ensure that employees who have symptoms stay home.

    Evaluate sick leave policies to ensure that they are adequate in light of COVID-19 – more flexibility with time off with or without pay is expected.

    • Symptomatic Employees and Families – Any employee who has symptoms – fever, cough, shortness of breath – should stay at home and not attend the workplace. If an employee has a family member or housemate who has symptoms, they should advise the employer.
    • Separate Sick Employees – If an employee appears to have symptoms when he or she arrives at work, or they develop during the day, the employee should be separated from other workers as soon as possible and sent home.
    • Work Fitness Questionnaire – Consider mandatory questionnaires to confirm employee fitness. Ensure that the questionnaire complies with human rights legislation.
    • Sick Leave Policies – Evaluate sick leave policies to ensure that they are adequate in light of COVID-19 – more flexibility with time off with or without pay is expected. Do not insist on doctor’s notes confirming the symptoms or need for absence.
    • Mental Health – Monitor signs for increased anxiety and stress within the workplace and address it in an appropriate and confidential way.
    • Records – Keep records of employee absences and reports of COVID-19 symptoms. Ensure any such records are kept confidential.

    3. Recalling Employees to Work

    If an employer has temporarily laid off employees for reasons relating to COVID-19, the employer has obligations that it must abide by when recalling these employees back to the workplace, in accordance with the Employment Standards Act (ESA) for Ontario employers (or similar legislation for those that fall under Federal jurisdiction or that of other provinces). We have outlined certain obligations and best practices below – we encourage you to seek advice prior to recalling employees, to ensure that your business does not face increased legal exposure by failing to abide by your statutory obligations, and to encourage employee compliance with recall procedures.

    (i)   Complying with section 56 of the ESA

    • The ESA provides that temporary lay offs can only last for:
      • (a) not more than 13 weeks in any period of 20 consecutive weeks; or
      • (b) less than 35 weeks in any period of 52 consecutive weeks, if the employer continues to meet certain conditions (e.g. continued payments under benefits plan)
    • Employees and employers may also agree, in writing, to extend the temporary lay-off period to up to 35 weeks, without continuing any payments under a benefits plan. The agreement in writing must be in accordance with the ESA, and employers should obtain legal advice with respect to this option.
    • If a lay-off is continued beyond the period contemplated in the ESA, the employer is considered to have terminated the employment relationship and may be liable to pay out termination entitlements (e.g. notice of termination/pay in lieu, severance pay, benefits).
    • Employees should be recalled prior to the end of the ESA statutory lay-off period, so that the employment relationship continues.

    (ii)   Communicating the recall process to employees

    • Follow Policies – Employers should follow existing workplace policies relating to lay-offs, if any.
    • Communication – Employers should ensure they have employees’ latest contact information.
    • Setting a Deadline – Employers should send out written correspondence to employees and give them a deadline to respond to a recall request.
    • Service Canada concerns – Employers should advise employees of potential changes to CERB/EI status, as a result of the recall.
    • Mitigating Exposure – It may not be practical to recall the entire workforce at once, whether because the volume of work does not justify it or the workplace is simply not prepared for all of the employees at once. Careful consideration should be given to the order of recall. To minimize the risk of claims of unlawfully preferring one employee over another, it is helpful to focus on objective considerations rather than subjective ones – e.g. needs of the organization, qualifications of the employees vis-à-vis those needs, years of service etc.
      • In order to mitigate litigation exposure relating to constructive dismissal claims, employers need to be careful when preparing their communications to employees, both during the layoff, and when the employees are being recalled to work.

    (iii)   What to do with employees who do not return within reasonable amount of time

    • Reasonableness – Employers have a right to expect their employees to return to work upon recall. There may be reasons why an employee is not willing or able to do so. Employers should make efforts to confirm the reason the employee has not returned when expected – e.g. childcare obligations, health concerns. It is recommended that employers be reasonable and flexible in these situations, exploring whether reasonable accommodations can be made; doing so will decrease their level of exposure to potential human rights claims, or Ministry of Labour complaints:
      • Employers cannot recall employees for brief periods of time, solely for purposes of avoiding ESA-related issues.
      • If an employee refuses to return to work within a “reasonable” amount of time after the recall request, assuming they have no valid basis to refuse, they risk loss of employment and any termination entitlements.
        • Consult a member of Brazeau Seller’s employment law team with respect to this issue.

    (iv)   Continued employment terms upon recall (position, scheduling, pay)

    • Ideally, a lay-off letter would have outlined continuing employment terms.
    • Maintain Employment Terms – Employers should aim to place recalled employees in the same positions they held prior to being placed on temporary layoff.
      • If not feasible, then parties should aim to reach an agreement.
    • Mitigating against exposure – If any terms must change, then employers may want to create a plan regarding how the changes will be communicated/offered to the employees.
      • Beware of changing certain “fundamental” employment terms, such as rate of pay, hours of work, position etc.
      • Amending employment terms (e.g. reducing employees’ hours and pay) upon recall to work could trigger potential constructive dismissal claims from affected employees. Employers should obtain advice on what to do with employees who do not consent to amended terms, as it may make sense to recall employees, even if they have filed a claim for constructive dismissal.
      • An employee may be expected to mitigate their damages by returning to work for the employer, even in a reduced capacity; however, courts likely will not look favourably on employers who recall employees under unfavourable terms that could be considered embarrassing, humiliating or degrading. Employers should obtain advice on a case-by-case basis.

    Employers should aim to place recalled employees in the same positions they held prior to being placed on temporary layoff.

    (v)    Fluidity of recalls

    • A second period of layoff may be required if there is a second wave of COVID-19.
    • Clarity – Employers should provide clarity with respect to whether terms of original lay-off will apply on second lay-off term.
    • Continue Benefits – Employers may have to continue benefits/make payments to the employees during the second layoff period to comply with section 56 of the ESA
    • Changing Laws – Keep an eye out for potential amendments to ESA if second wave of COVID-19 happens (BC has already amended layoff provisions of its ESA).

    (vi)    What happens to Federal government benefits (CERB/EI)

    • ROE Update – Employers have an obligation to prepare and issue new ROEs to employees upon recall.
    • Federal Government Payments – Employers should advise employees that their CERB/EI payments may end.
      • It is preferable to advise employees to contact Service Canada directly if they have questions rather than attempt to answer CERB/EI questions directly.

    (vii)    Work safety upon recall

    • Apply Universal Policies – Employers should develop clear workplace policies regarding distancing within the workplace, using PPE, limiting meetings, staggering employees’ schedules, limiting non-essential work travel, etc.
    • Point Person – Employers should prepare HR personnel to be able to answer COVID-19 related questions from employees.

    Employers should develop clear policies regarding distancing within the workplace, using PPE, limiting meetings, staggering employees’ schedules, limiting non-essential work travel.

    (viii)    What to do with employees with medical issues upon recall

    • Accommodation – Employers should consider accommodation requests on a case-by-case basis:
      • Employers must comply with Ontario Human Rights Code to accommodate employees to point of undue hardship.
    •  Message – Employers may want to inform employees of the efforts made to minimize risk of COVID-19 transmission in workplace (e.g. physical distancing within the workplace, providing masks/hand sanitizers to employees).

    (x)     Various Ontario government guidelines, announced April 30, 2020

    (ix)     Privacy issues relating to temperature/thermal screening

    • Protocol – Employers should develop a workplace policy relating to temperature screening if necessary, within that industry.
    • Legal Compliance – As of right now, there are no clear statutory privacy-related concerns with respect to implementing and conducting thermal testing in Ontario; however, employers still need to be cautious of privacy violations (e.g. at common law).
    • Maintain Privacy – Employers should consider certain best practices for avoiding potential privacy violations – for example, the information obtained through temperature screening should not be collected, recorded, stored, used or disclosed for any purpose aside from determining whether the employee should be permitted to enter the workplace.
    • Training – May want to retain third parties with expertise to conduct thermal testing. At minimum, employers will need to train an employee on how to conduct thermal testing while wearing appropriate PPE if it is not feasible to retain a third-party vendor.

    4. Work from Home Protocols

    Many employees are currently working from home in this age of COVID-19, and it is inevitable that a significant portion of the Canadian workforce will continue to be encouraged to work from home, until a vaccine for COVID-19 is found. While all workplaces are unique, and certain industries are better suited to having work done from home compared to others, it is critical for employers to create and implement clear work from home policies, and to mitigate any risks related to employees working from home.

    In addition, employers will need to consider what sorts of accommodations are necessary for employees who do not feel safe to return to work in the current climate, and whether any constructive dismissal claims will arise as a result of working from home becoming a fundamental term of any individual’s employment. We set out below certain issues and best practices for you to consider:

    Employees must remain available to work during all regular work hours.

    (i)   WFH policies

    • Plan – If one is not already in place, now is the time to develop and implement one.
    • Set Out Expectations – Need to ensure that employees must remain available to work during all regular working hours – clearly set out employer expectations within policies.

    Employers will likely have to deal with employees wanting to continue to work from home, especially if schools do not re-open before the economy.

    (ii)    Continued WFH schedules post-COVID-19

    • Physical Distancing – Government guidelines will likely include staggering employees’ schedule to ensure physical/temporal distancing within workplace.
      • If you will require employees to attend the workplace at non-regular hours to maximize physical distancing, you should provide them with notice of this requirement.
    • Job-Protected Statutory Leaves – Employers will likely have to deal with employees wanting to continue to work from home, especially if schools do not re-open before the economy.
      • The ESA currently provides for job-protected, unpaid leave for parents who can’t attend work because they have to provide childcare due to school/day care closures. This measure will continue until the Ontario government states otherwise.
    • Mandatory Meetings – If you are going to mandate attendance at certain meetings/dates (e.g. at key client meetings), provide notice to your employees as soon as possible.
    • Ending WFH – Policies should set out employers’ right to terminate WFH privileges.

    (iii)    Privacy/Security/Technology issues

    • Confidentiality – Employees must be advised that confidentiality of company documents/information must be maintained even from home.
    • Maintain Safeguards – Require employees to abide by physical and electronic safeguards (e.g. connecting to private VPNs).

    (iv)    Insurance/WSIB issues

    • Appropriate Work Environment – The location of employees telework environment should be appropriate from an operational and a health and safety perspective.
    • Ergonomics – Employers may need to respond to requests for ergonomic equipment.
    • Workplace Assessment – Employers may want to reserve the right to complete a workplace assessment.
    • Employee Responsibilities – Employers should notify employees that it is their responsibility to ensure that they are not violating tenant insurance policies.

    (v)    Potential constructive dismissal claims

    • Potential Exposure – Employers may face constructive dismissal claims if an employee is “forced” back to work, instead of being able to WFH.
      • This reinforces the importance of implementing policies that state how employers may end WFH privileges.
      • At the same time, employers need to act reasonably to reduce potential exposure to employees’ claims (e.g. with respect to employees who request WFH due to human rights related grounds).
      • Consult a member of Brazeau Seller’s employment law team when you learn of potential constructive dismissal issues.

    5.  Amending Terms and Conditions of Employment

    As our workplaces adapt to operating in the age of COVID-19, it may become necessary to change certain terms and conditions for existing employees. Also, employers may seek certainty in having written employment agreements where no written contract existed before. Written employment agreements are useful in limiting entitlements upon termination of employment or providing the employer with a contractual right to layoff the employee should business slow down, among other things.

    However, making significant changes to working conditions, including employee schedules and locations of work, are potentially a change in a material term and condition of employment and should be implemented carefully and with appropriate documentation.

    (i)    Introducing written employment agreements

    An employee without a written employment agreement is still under a contract of employment, albeit one that has been determined by the parties’ practice and potentially verbal agreements. To modify and reduce the terms and conditions to writing, it will be necessary to speak with affected employees and discuss formalizing the terms and conditions. As a first step, employers should identify what, if any, changes to the current terms and conditions of employment will be in the new written agreement.

    It certainly is possible to implement written employment agreements for the first time without interrupting operations, but this must be done carefully as unilateral changes to terms and conditions of employment can trigger constructive dismissal claims. In addition, not providing adequate notice of or consideration for a material change may render the written employment agreement unenforceable.

    (ii)    Permanently changing terms and conditions for existing employees

    This process begins with determining whether a change in terms and conditions of employment is material (i.e. fundamentally alters the previous agreement). If the change is material, then identify the affected employee(s) and communicate with each employee to potentially obtain the employee’s agreement; it may still be necessary to provide something of value in exchange for accepting the amended terms and conditions.

    Should the employee reject a material change in terms and conditions of employment, then it may be necessary to end the employment relationship on the existing terms and conditions and continue the employment relationship on new terms and conditions. This can be accomplished by providing notice in accordance with the contract of employment (either at common law or pursuant to the termination provision of a written employment agreement) and/or provide something of value to the employee in consideration of accepting the new terms and conditions.

    Once an agreement is reached, document the new terms and conditions of employment in either a fresh employment agreement or an addendum to the existing written employment agreement.

    Note – As the impact that COVID-19 becomes clearer, employers may need to assess whether the size of the workforce needs to be adjusted. Any downsizing decisions must be considered carefully. It is important to get the advice of counsel to minimize your legal exposure.

    (iii)    What to do with temporary changes to terms and conditions upon return to work

    Some employees may have accepted layoffs and temporary changes to their employment terms and conditions. If an employee has agreed to the change for a fixed period (e.g. when the workplace is authorized to re-open by health authorities), the employer ought to communicate with the employee(s) to arrive at an agreement on working conditions for when there is a return to work. It is important to seek agreement and document the terms and conditions upon which the employee will return to work when operations resume or normalize, the anticipated duration of any changes, and a process for re-visiting the arrangement as things develop.

    Some employees may refuse to accept changes to their pre-COVID-19 working conditions, particularly if those changes are permanent or even indefinite; if an employee refuses a temporary or permanent change, seek legal advice as uncertainty remains as to how courts will interpret constructive dismissal principles in our current context.

    (iv)    New COVID-19 workplace policies

    As employers work to keep employees safe, certain changes to everyone’s behavior in the workplace may be necessary. It is important to have these new workplace rules reflected in official workplace policies.

    If COVID-19 specific changes and policies are required to reinitiate operations, advise employees early and before a return to the workplace. In any event, provide as much notice as possible and if it is not obvious, the rationale for the change.

    • Key policies which may be needed:
      • Physical Distancing in the Workplace
      • Staying at Home When Sick
      • Communal Space (kitchen/lunchrooms/waiting areas)
      • Mandatory Sanitizing for Shared Use Items (photocopiers, tools, machinery, vehicles etc.)
      • Children in the Workplace
      • Business Travel in the Age of COVID-19
      • Vehicle Use Policy
      • Client/Customer/Public Interaction

    Communication is vital to a successful employment relationship and communicating changes in workplace policies should be done early and with clarity. Best practices for circulating new workplace policies include:

    • Circulate them by Email or on the workplace employee platform in advance of the policy taking effect
    • Offer the opportunity for employees to ask questions about the policies
    • Be clear about consequences relating to non-compliance

    As employers work to keep employees safe, certain changes to everyone’s behaviour in the workplace may be necessary. It is important to have these new workplace rules reflected in official workplace policies.

    (iii)    Non-compliance with new workplace policies

    Employees have the obligation to follow the employer’s reasonable and lawful instructions. Some employees may have difficulty adjusting and it is therefore important to have some patience as the changes take effect. However, as the ultimate responsibility for keeping the workplace safe rests with the employer, conduct which unnecessarily places people at risk or is in violation of policies designed to curb the spread of COVID-19 ought not to be tolerated.

    The following are steps which can be taken in the face of employee non-compliance:

    • Document any non-compliance and provide verbal and, if necessary, written warnings
    • Consider the use of Performance Improvement Plans
    • Seek legal advice prior to any termination of employment relating to non-compliance or other performance related issues

    Our Team

    David Spears
    613.237.4000 x207

    Jay Kim
    613.237.4000 x241

    Mario Torres
    613.237.4000 x249

    Juliette Faubert
    Clerk / Administrative Assistant
    613.237.4000 x256

    image of a window

    Download the COVID-19 Return To Work Playbook PDF

      Note to readers:

      The following information does not constitute legal advice and is of general application only. The information regarding COVID-19 is rapidly evolving and the recommendations contained herein are accurate only up to the date of publishing (May 25, 2020). For specific concerns and on-going updates, please contact a member of Brazeau Seller’s Employment Law Group.


      © 2020 Brazeau Seller Law and affiliated entities