Learning from the Pandemic: Considerations for Ontario Employers

COVID-19 seemingly came from nowhere and fundamentally altered our lives. It has brought challenges to many Ontario workplaces, exposing deficiencies in employment agreements and emphasizing the need for strategic planning and preparedness. 

When the dust settles and employers have a chance to reflect on their operations, there are several steps they may wish to consider to better protect their businesses on a go-forward basis.

Implement Pandemic Planning and Policy

Ontario employers may wish to develop and implement a workplace pandemic plan to protect their business and staff. While requirements will differ from workplace to workplace, pandemic plans should provide:

• a clear communication strategy;

• leadership and accountability (i.e. an organizational structure to respond to the pandemic, with designated key employees performing core functional responsibilities);

• risk management strategy (to both protect staff from illness and ensure continuity of business). This may include a remote work policy and/or anticipation for an increase/decrease in the service/product your business provides; and

• a plan to transition back to normal. While an employer’s initial response to a pandemic is critical, equally important is how operations will resume once the threat has passed. Consider whether a phased re-opening may be necessary while taking into consideration the impact of the surrounding legislative framework.

Revisit Employee Leave/Vacation Entitlements

While the federal government has introduced a number of programs and payments in response to COVID-19, many of the initial questions we received from employers and employees related to entitlements to paid leave, the viability of temporary lay-offs and/or whether accrued vacation could be applied to offset an otherwise unpaid absence.

When the pandemic subsides, employers may wish to revisit the types of paid leave they offer. This review should consider the wording of the underlying employment agreements and/or policies that set out the nature and duration of these entitlements (or, if necessary, to put in place such policies).

Remote Work Arrangements

While perhaps not ideal, the pandemic has highlighted the viability of working from home for many employees. Employees working remotely, however, raises a host of new issues for employers. Effectively, the employee’s home becomes an extension of the workplace. As such, it is critical for employers to ensure employees are working safely, while being able to monitor and assess productivity and ongoing staff needs.

To further this goal, employers may wish to introduce a comprehensive work from home policy, addressing:

• the importance of setting up a safe ergonomic workspace. Some staff may not be properly set up to work from home. As such, employers may consider communicating guidelines for setting up a functional workspace and requiring employees to report deficiencies in this respect so that they may be addressed (i.e. if possible, providing an office chair). In addition, employers should remain cognizant of the need to provide reasonable accommodation to staff working from home. For example, if employees are contending with childcare obligations or experiencing back pain (a commonly reported issue during the pandemic), employers should remain mindful of their human rights obligations and seek to provide reasonable accommodation;

• the use of video conferencing services. Employers will want to consider introducing clear instruction on how services such as Zoom are used, monitoring appropriate usage, etiquette and employee privacy;

• reimbursement of costs incurred by employees in performing their duties at home. For example, allowing employees to claim back additional costs associated with increased WiFi usage (upon the provision of receipts);

• the blurring of work and personal time. There is a risk that when employees are working from home, the workday may creep beyond the regular 9-5, and expectations for immediate responses could become normalized. In addition to raising interesting questions about overtime pay entitlements, it is important to set clear parameters on the workday to avoid employee burnout; and

• the employer’s obligation to monitor and respond to issues surrounding mental health, addictions and domestic violence. With more employees working from home during the pandemic (and videoconferencing services providing a window into peoples’ homes), employers should be aware of, and provide assistance and support to, employees dealing with these issues.

Media reports have highlighted an increase during the pandemic in alcohol consumption, reports of domestic violence and depression. These are complex problems for employers to navigate remotely. As such, a comprehensive work from home policy should clearly address the requirement for sober work, communicate supports in place for employees dealing with mental health concerns and emphasize the employer’s commitment to protecting its staff from domestic violence.

Beyond that, employers should ensure that any new policies are clearly communicated to all staff.

Revising Employment Agreements

COVID-19 has exposed the limitations of some employment contracts. Many employers have had to take drastic measures in response to the economic hardship brought by the pandemic. This has included turning to statutory provisions permitting temporary unpaid lay-offs or proposing that staff only continue working at a reduced pay rate.

Generally speaking, Ontario employers are prohibited from placing employees on temporary lay-off (even when otherwise authorized by the Employment Standards Act) or reducing compensation absent either the employee’s express agreement or a contractual clause permitting the same.

Unilaterally placing an employee on an unpaid temporary lay-off or reducing salary can trigger a constructive dismissal from employment, exposing the employer to potentially significant unanticipated liability (in the form of severance payments). While we suggest that employees proceed cautiously in asserting a constructive dismissal in the present climate (and to seek legal advice prior to doing so), employers should look to learn from these deficiencies and:

• institute policies addressing both temporary unpaid lay-offs and the ability to reduce working hours/compensation without triggering a constructive dismissal. Any such policies should be drafted with the assistance of an experienced employment lawyer, be brought to the attention of all affected staff (having them sign off on receipt of the same) and, where possible, introduced with advance prior notice; and

• amend employment agreements to address temporary lay-offs and changes to terms of employment. Use these revised contracts for all new employees as well as those that change roles.

We are in uncharted legal waters, which employers and employees continue to navigate as best they can. Taking time now to plan proactively will allow employers to better contend with this new reality, ensuring business continuity while limiting potential liability and protecting their employees. If you have concerns about your workplace, please contact our employment lawyers directly.

Vey Willetts LLP is an Ottawa-based employment and labour law boutique that provides timely and cost-effective legal advice to help employees and employers resolve workplace issues in Ottawa and across Ontario. To speak with an employment lawyer, contact us at: 613-238-4430 or info@vwlawyers.ca.