Grant Machum, ICD.D and Mark Tector

2020 was a challenging year for many people and businesses. And while we are all happy to have 2020 in the rearview mirror, we anticipate that there will continue to be challenges going forward, including in employment law. Below are five legal questions we expect employers will have in 2021, along with our answers:

1. Once available, can I require employees to take the COVID-19 vaccine as a term of employment?

Yes, in certain circumstances, an employer can introduce a reasonable policy requiring vaccinations. The extent and terms of the policy will depend, in part, on the industry and should be crafted with input from legal counsel. Employers dealing with high risk populations (e.g. health care and nursing homes) and the public (e.g. retail) may have more extensive policies and requirements for their employees. Employers have statutory obligations to ensure the health and safety of their employees along with others who may be in the workplace. Any policy should:

• have terms to address potential bona fide refusals (such as on the basis of legitimate health considerations);
• consider the consequences for an employee who refuses the vaccine, including accommodation to the point of undue hardship of an employee who may refuse on grounds protected by human rights legislation;
• remain flexible and allow for adjustment(s) as the pandemic and vaccination rollout evolves, including as the requirements and advice from Public Health may change; and
• ensure reasonable measures and procedures are in place to address employee privacy requirements and considerations.

2. Can I terminate an employee for cause who disregards COVID-19 protocols and puts others at risk?

Yes. At law, each termination for cause must be considered on its own particular merits and circumstances. However, in a recent Ontario decision (a unionized workplace) an employee went to work during the mandatory self-isolation period after testing positive for COVID-19. The employer terminated the employee for cause as she had breached the safety requirements. The arbitrator hearing the matter upheld the termination.

3. Can I keep employees on lay-off?

With the second (or third) wave hitting much of the Canadian population, some businesses have continued to see drastic reductions in business or have had to again reduce their businesses after having opened up during the summer and fall. Some provinces have extended the ability under applicable legislation to continue lay-offs (e.g. Ontario converted statutory lay-offs into leaves and has now extended this until July 3, 2021). Nova Scotia also has a statutory exemption in relation to notice of termination (or pay in lieu of such notice) where the circumstances giving rise to the termination or lay-off are, in part, “beyond the control” of the employer. The pandemic is certainly beyond everyone’s control, unfortunately. Employers will generally also have to consider employment contracts to determine whether a lay-off or continued lay-off is permitted.

4. Given the impact on my business, can I modify the terms of employment for my employees?

The impact of COVID-19 on many businesses has been unprecedented. Accordingly, in these unprecedented times, employers generally have the ability to make changes to duties and terms, including the duties of those who may be returning from lay-off. The law recognizes that most employment relationships are not static and evolve. However, depending on the extent of the changes, some larger or more significant changes may require that an employer provide advance notice of the changes. An employers’ existing employment agreements or policies may also already have “baked in” terms that allow for changes, or require a stipulated amount of notice before changes can be implemented. Therefore employers should review any existing employment agreements and policies.

5. What should I do to be proactive and minimize employment-related issues going into 2021?

Update your employment agreements and policies, including occupational health and safety policies. By doing so, and being proactive, you may reduce employment-related issues and associated costs going forward. Understandably, COVID-19 was the main issue in 2020. However, in employment law there were some significant developments unrelated to the pandemic, including a number of key court decisions (see our earlier client updates, including in relation to the Supreme Court of Canada decision in Matthews v. Ocean Nutrition concerning employee bonus/incentive plans). Many of our clients are taking the opportunity to review and update their employment agreements, including in relation to termination provisions, lay-off provisions, and bonus/incentive entitlements.

This update is intended for general information only. If you have questions about the above, please contact a member of our Labour & Employment group.

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