Although we’re less than halfway into the year, 2022 has already seen a number of important developments in the Canadian employment law landscape. Below, we’ve prepared a brief overview of the top 5 developments of which Canadian employers should be aware:
Rollback of workplace mask (and potentially vaccination) mandates. Over the past several months, provinces across Canada, which generally have exclusive rights in relation to employment laws, have been easing mask mandates. While each Province’s remaining masking requirements vary, it is now almost universally the case that workers are not expressly required to wear masks when working in an office that is closed to the public. However, the province of Quebec still requires masking in elevators and when individuals are less than one meter apart from one another.
Additionally, mask mandates are generally still in place in certain occupational settings, such as public transit, hospitals and other healthcare environments.
Importantly, although blanket mask mandates have largely been lifted, employers may still be required to enforce masking in the workplace pursuant to their general obligation under occupational health and safety legislation to “take every precaution reasonable in the circumstances” for the protection of workers. Employers may also still be subject to mask mandates at the municipal level.
In addition to the rollback of mask mandates, we expect some employers to begin modifying their mandatory vaccination policies, especially in industries experiencing labour shortages that are adversely impacting employers.
Easing of Border Measures for Vaccinated Travellers. Fully vaccinated travellers are no longer required to obtain a pre-entry COVID-19 test prior to entering Canada. Similarly, fully vaccinated travellers are generally no longer required to quarantine for 14 days upon entry to Canada.
To date, there has not been any material loosening of Canadian border measures with respect to travellers who are not fully vaccinated. Most notably, such individuals may be denied entry into Canada if they are a foreign national. Further, travellers who are not fully vaccinated may still be subject to COVID-19 testing and quarantine requirements.
Ontario Passes Disconnecting from Work Legislation and Requires Development of New Workplace Policies. Pursuant to new legislation enacted in Ontario, employers in that province will soon be required to have both:
A written “Disconnecting from Work” policy, which must be in place by June 2, 2022; and
A “Electronic Monitoring of Employees” policy, which must be in place by October 11, 2022.
With respect to the policy on “Disconnecting from Work”, the term is legislatively defined to mean “not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work”. Importantly though, Ontario employers are not required to create any new rights with respect to disconnecting from work.
There are similarly minimal requirements with respect to an employer’s “Electronic Monitoring of Employees” policy. However, employers are required to develop a policy that indicates whether the employer electronically monitor employees, and if so, the policy must also specify i) how and in what circumstances the employer may electronically monitor employees, and ii) the purposes for which information obtained through electronic monitoring may be used by the employer.
Ontario Enacts Protections for Digital Platform Workers. Ontario recently enacted the Digital Platform Workers’ Rights Act, 2002 (the “DPWRA”), which provides certain protections for “digital platform workers” (e.g., “gig economy” workers such as those who perform work for Uber, Lyft, etc.). Importantly, these protections are available to digital platform workers regardless of whether they are an employee or an independent contractor.
Most notably, the DPWRA requires digital platform operators in Ontario to:
Pay workers minimum wage for each work assignment they perform;
Provide two weeks’ written notice of a worker’s removal from the platform if access is being removed for a period of 24 hours or longer, including a written explanation of why access to the platform was removed; and
Resolve all work-related disputes between operators and workers in Ontario.
Ontario Court of Appeal Finds that Buttocks Slap not “Willful Misconduct”. In an unusual recent development, the Ontario Court of Appeal ruled, in Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, that a managerial employee did not engage in “willful misconduct” when he purposely slapped the buttocks of a female employee in the presence of their coworkers. Pursuant to the Ontario Employment Standards Act, 2000 (the “ESA”), this finding meant that the manager, who had been discharged for cause, was entitled to statutory notice and severance payments (but not any common law notice payments).
Central to the Court’s ruling was the fact that the manager’s misconduct was not “preplanned”, which was not previously thought to be a requirement of the “willful misconduct” standard under the ESA.
As a result of this new requirement, we expect that it will be harder for employers in Ontario to justify depriving an employee of statutory notice and severance payments when the employee is discharged on a “for cause” basis.
Although statutory termination entitlements in Ontario are generally less generous than an employee’s presumptive entitlement to “common law” notice, these statutory entitlements are by no means inconsequential. Under the ESA, an employee could be entitled to as much as 34 weeks’ pay when they are discharged for reasons that do not meet the “willful misconduct” standard.
Takeaways for Employers
Overall, the above developments reflect the continuing trend of rapid workplace changes in the era of COVID-19. In particular, workers in some jurisdictions have been able to supplement the gains from a tight labour market with additional legislative and judicial protections aimed at addressing realities in the modern workplace.
As with many other trends over the past two years, the above developments are liable to evolve quickly. We recommend that Canadian employers continue to monitor them and seek legal advice as appropriate.