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LeClair & Associates Newsletter: Dec 13, 2021

Monday, December 13, 2021 - 13:28

NEW: Ontario Extending COVID-19 Paid Sick Days and IDEL Provisions ALSO: Arbitral Precedents and Legislative Developments

  • A recent announcement from the Ontario Government provides for extensions to the three days of paid infectious disease emergency leave for reasons related to COVID-19, which will be available until July 31, 2022. These reasons include:
    • Going for a COVID-19 test;
    • Staying home awaiting the results of a COVID-19 test;
    • Being sick with COVID-19;
    • Getting individual medical treatment for mental health reasons related to COVID-19;
    • Going to get vaccinated;
    • Experiencing a side effect from a COVID-19 vaccination;
    • Having been advised to self isolate due to COVID-19 by an employer or medical practitioner; or
    • Providing care or support to certain relatives for COVID-19 related reasons.
  • Additionally, the Ontario Government has announced an extension to the COVID-19 period, deeming temporary layoffs of non-unionized employees as Infectious Disease Emergency Leave (“IDEL”) until July 30, 2022, meaning these temporary layoffs do not constitute deemed terminations or constructive dismissals under the Employment Standards Act (“ESA”).

NEW: Arbitral Precedents — Mandatory Vaccine Policies in the Unionized Context:

  • In the matter of Arbitration between Electrical Safety Authority (“ESA”) and Power Workers Union (“PWU”), Arbitrator Stout declared that the employer’s mandatory policy was unreasonable as the company was unable to demonstrate a real risk which would otherwise call for the strict enforcement provisions therein. The employer’s policy also did not allow for the alternative of testing if employees sought to opt out of vaccination and featured disciplinary measures up to and including termination for failure to vaccinate. This decision strongly suggests that where available, and depending on the type of workplace and its relative risks, vaccination policies should feature the least intrusive measures possible and that vaccination policies are not a one size fits all.
  • Contrarily, in the arbitration between United Food and Commercial Workers Union, Canada Local 333 and Paragon Protection Ltd., Arbitrator Von Vogh upheld the employer’s mandatory vaccination policy as it struck an appropriate balance between the rights of those who wished to remain unvaccinated, and the safety of staff, clients, and the public. This decision, however, also came in the context of a collective agreement which stated that where a specific inoculation was required by law, the employee was required to be vaccinated and therefore the case is fact specific.
  • In another recent arbitration, Arbitrator Murray ruled that costs of COVID-19 testing for unvaccinated individuals are to be borne by the employer which is a position supported by the Ontario Human Rights Commission. With that said, however, it was declared reasonable that employees were required to take time before work to administer the test, for which time they would not be remunerated.
  • In this decision, Arbitrator Murray also found that so long as employees were provided clear notice that failure to become vaccinated would likely and eventually result in their termination, placing employees on leave, and eventually terminating their employment for failure to vaccinate was within the realm of acceptable disciplinary measures in the employer’s arsenal. These early decisions are certainly indicative of how the jurisprudence is starting to develop in the unionized context and we will be keeping an eye out for similar developments in the non-union sector.

Bill 27: Working For Workers Act Receives Royal Assent

  • Bill 27, which we have previously written about, places a wide ranging cluster of new obligations on employers pertaining to employment contracts and the “always on” work-culture. Of note:
    • Non-compete clauses are now prohibited in contracts of employment, save and except for in the context of a recent sale of business, or in contracts with C-suite executive employees; and
    • Employers with 25 or more workers will now be required to have a “Disconnect From Work Policy”, prescribing that employees are not required to engage in work-related communications outside working hours.

Until next time:

We wish you and each of you families a very happy holidays and will continue will to share updates and insights in the coming weeks, however, for specific questions, please feel free to reach out to us directly at – (519) 859 6015.

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