Recent Legislative and Case Law Developments
Date: November 22, 2022
We are back with another edition of Reaching Out. While we are still dealing with issues arising from the pandemic, there are a number of developments in legislation and case law which we wanted to bring to the attention of social services organizations.
Sean Reginio discusses the duty to accommodate employees and the issues that have arisen as a result of the return to in-person work. He identifies questions you should consider asking when faced with this type of accommodation request.
Jamie Burns considers the recent amendments made to the Occupational Health and Safety Act (OHSA) that require some employers to provide and maintain a naloxone kit in the workplace. She discusses the effect of these amendments and, for impacted employers, sets out some practical steps to follow to ensure compliance.
Labiba Chowdhury’s article provides an overview of the requirements for certain employers to establish written policies on disconnecting from work and electronic monitoring.
Finally, we link to two recent articles originally written as Case in Point articles. In the first, Jordynne Hislop and Lavan Narenthiran summarize an arbitral award of Robert Herman regarding a creed-based COVID-19 vaccine exemption. In the second, Chuck Hofley, Siobhan O’Brien and Shauna Bartlett cover a decision from the Divisional Court that overturned findings of the Human Rights Tribunal of Ontario regarding a group living home’s visitor policy during the COVID-19 outbreak.
We hope you find these articles helpful. As always, if you have any comments, would like more information on any of these articles or have requests for articles in future editions, please do not hesitate to contact us.
Michael Smyth, Editor
The Return to In-Person Work and the Issue of Accommodation
By: Sean Reginio
Given the current state of COVID-19 pandemic restrictions, employers are increasingly asking their employees to perform work in person, rather than remotely. As employers navigate these discussions with employees who have worked remotely for an extended period of time, they face yet another set of novel pandemic-related legal questions. It is essential for employers to think critically about when and how they can impose requirements regarding in-person work.
The Return to In-Person Work
Unless an employer has told its employees otherwise, an employer generally retains the right to change, modify or discontinue remote work arrangements at any time based on legitimate operational needs. While some employees may like to believe that the pandemic created a universal and indefinite entitlement to remote work, most remote work arrangements constitute an alternative temporary practice in response to the pandemic.
There are steps that employers can take to encourage cooperation with requests to return in person as well as to enhance the legal enforceability of these measures:
- provide sufficient advance notice of the return-to-work date
- implement a progressive return-to-work plan (e.g. start with two days in person, then progress to three or four days in person)
- subject to accommodations, apply the return-to-work measures in a consistent manner
If an employer is concerned that employees will not respond cooperatively to a request to return to in-person work, they may consider engaging in written correspondence outlining the temporary nature of remote work necessitated by the pandemic. If initial correspondence is ineffective, consider delivering follow-up written correspondence outlining specific expectations, expected date of compliance and consequences of a failure to comply. If follow-up correspondence is ineffective, an employer may be entitled to impose progressive discipline.
Employee Accommodation Requests
As employers encourage their employees to return to in-person work or increase their amount of in-person work, employers are frequently presented with accommodation requests. While the risks presented by the COVID-19 virus should form part of an employer’s determination of whether to grant an accommodation request, the standard accommodation process otherwise remains largely unchanged. The same goes for an employee’s duty to facilitate accommodation by providing the employer with relevant information regarding their needs.
Some accommodation requests will be related to an employee’s disability. Employers have a right to medical documentation establishing the workplace restrictions and limitations caused by the disability. This medical documentation may establish a legitimate need to provide personal protective equipment, make alternative worksite arrangements to enhance physical distancing or permit continued remote work.
Employers should remember they may also have a duty to accommodate an employee on the basis of a family member who is immunocompromised.
When accommodation requests are related to an employee’s family status needs such as childcare or eldercare obligations, employers are permitted to ask questions about the nature of the accommodation needs and whether alternatives to the requested accommodation have been explored:
- At what time and on which days of the week does the employee seek to be away from work?
- Are these family status obligations indefinite or are they expected to last only for a set period of time? (e.g. daycare availability, enrolment in school, availability of others to assist with family care needs)
- Are there special circumstances regarding the family member needing care that impact the accommodation request? (e.g. particular physical or cognitive needs of the family member, co-parenting arrangements)
- Is there a spouse or partner who is available to assist with these family status needs?
- Are there family, friends, neighbours, parents of classmates, or others who can assist with the family status needs?
- What is the availability of paid childcare and eldercare?
In summary, employers retain the right to mandate a return to in-person work as long as they do so in a reasonable manner and comply with their duty to accommodate. There are steps that employers can take to enforce compliance with in-person work requirements and employees are required to provide employers with certain information in order to gain entitlement to certain accommodations.
Naloxone in the Workplace
By: Jamie M. Burns
Does your workplace have a naloxone kit? Are you legally required to have one?
The opioid crisis across Canada continues to grow. According to Health Canada, between January 2016 and March 2022 there were more than 30,800 apparent opioid toxicity deaths. In 2021 alone, there were 7,902 deaths, which equates to approximately 22 deaths per day.
In light of the opioid crisis, the Ontario government passed Bill 88, Working for Workers Act, 2022 (Act), which amended, among other things, the OHSA to prescribe the inclusion of naloxone kits in select workplaces.
The OHSA now requires an employer who becomes aware, or ought reasonably to be aware, that there may be a risk of a worker having an opioid overdose at the workplace to provide and maintain a naloxone kit in the workplace.
The legislation also prescribes that the kit must remain in the charge of a trained worker who works in its vicinity, that the employer provide training for the worker, and that disclosure of personal information by the employer shall be limited to that necessary to comply with the legislation.
Effects of the Change
In a March 2022 announcement, the Ontario government provided a few examples of “high-risk” settings where the requirement to provide and maintain a naloxone kit may apply, including construction sites, bars and nightclubs. Notwithstanding this announcement, it is important to note that the Act does not identify any specific sectors of application, nor rule any out. Furthermore, the requirement is limited to an employer’s knowledge of a risk of a worker having an opioid overdose—not a member of the public, a client, etc.
However, it is not clear as of yet how broadly these amendments to the OHSA will be interpreted and applied, in particular, to workplaces where overdoses are not reasonably deemed to be a potential hazard to a worker.
To provide a few examples, if an employer (in any sector) has evidence of an opioid issue amongst its workers (e.g. a worker has overdosed on or off site, or opioids have been found within workplace areas restricted to workers) it is clear that the employer is aware, or ought reasonably to be aware, there may be a risk of a worker having an opioid overdose at work.
On the other hand, the amendments to the OHSA can broadly be read to include a circumstance where an employer is not aware, and has no cause to reasonably be aware, that its workers may overdose at work, but is aware that opioids may be, or have been, used in spaces within its workplace that are open to the public (e.g., a public bathroom). Here, there is a possibility—albeit potentially remote—that a worker “may” be at risk of having an opioid overdose at work by coming into contact with opioids through some means. A liberal interpretation of the amended language would likely require the employer to provide and maintain naloxone kits in the workplace and adhere to additional requirements set out below.
As such, it is prudent to understand the additional responsibilities which may be required of employers—despite the absence of a clear indication that an opioid overdose is a potential hazard to workers.
Practical Steps to Ensure Compliance
Employers with naloxone kits in the workplace may wish to consider:
- whether the kit(s) will be used solely for workers, or whether they will also be used for the public, clients, etc.
- which workers will be trained on the use of naloxone (e.g. first aiders, workers who are scheduled daily) and the topics to include in training (e.g. recognizing an opioid overdose, administering naloxone, hazards related to administering naloxone)
- how and when they will provide training for all workers on topics such as how to identify an opioid overdose
- the policies and procedures needed to address such issues as where the kit(s) will be stored, who will be trained on their use, how often the kit(s) will be checked and replaced, etc.
- how the program will be implemented and communicated to workers
Disconnecting from Work and Electronic Monitoring Policies: A Reminder of the Requirements
By: Labiba Chowdhury
In this article, we provide an overview of some of the requirements introduced by these bills; specifically, we examine the requirements for written policies with respect to disconnecting from work and electronic monitoring of employees.
The requirements relating to both policies apply to all employees and employers covered by the ESA except the Crown, a Crown agency, or an authority, board, commission or corporation whose members are all appointed by the Crown and their employees. These requirements apply to employers with 25 or more employees.
While the deadlines for 2022 have already passed (June 2, 2022 for disconnecting from work policies, and October 11, 2022 for electronic monitoring policies), these obligations are ongoing. Social service employers that did not meet the 25 or more employee threshold for 2022 should be aware that they may be subject to the requirements should their employee count increase above 25 in the future. Beginning in 2023, employers who meet the 25 or more employee threshold on January 1 of each year must have these policies in place before March 1 of that same year.
Determining whether an employer has 25 or more employees as of January 1 is a point-in-time assessment. This means that if the employer has fewer than 25 employees as of January 1 then the ESA does not require it to have policies in place for that year, even if that number increases to 25 or more after January 1. Conversely, if an employer has 25 or more employees as of January 1 and that number decreases later within the same year, the requirement to have these policies in place still exists throughout the remainder of the calendar year.
It is also important to note that the employees to be included in the count are not limited to full-time equivalents but also include probationary employees, some trainees, employees on definite term or specific task contracts of any length, employees who are on lay-off and employees at multiple locations, among others.
Disconnecting From Work Policy
The ESA defines “disconnecting from work” as “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.” The Guide to the Employment Standards Act (Guide) states that this definition is not exhaustive and other types of work-related communications could also fall under it.
Examples of what the disconnecting form work policy may address include:
- the employer’s expectations, if any, of employees to read or reply to work-related emails or answer work-related phone calls after their shift is over
- the employer’s expectations for different situations; for example, the policy may contain different expectations depending on the time of day of the communication, the subject matter of the communication or who is contacting the employee (e.g. the client, supervisor, colleague)
- the employer’s requirements for employees turning on out-of-office notifications and/or changing their voicemail messages when they are not scheduled to work in order to communicate that they will not be responding until the next scheduled work day
The Guide confirms that the “obligation to have a policy does not require an employer to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications in its policies” but that employee rights under the ESA to not perform work are established through other ESA rules (e.g. hours of work and eating periods, vacation with pay, public holidays).
For more information on disconnecting from work policies, please also see our Human Resources Legislative Update of May 18, 2022, Reminder: Employers to Have Disconnecting from Work Policies in Place by June 2, 2022.
Electronic Monitoring Policy
An electronic monitoring policy must include certain information including whether the employer electronically monitors employees—and, if so, a description of how and in what circumstances the employer may monitor employees and the purposes for which information obtained through electronic monitoring may be used by the employer—and the date the policy was prepared as well as the date any changes were made to the policy.
While the ESA does not define “electronic monitoring,” the Guide states that electronic monitoring includes “all forms of employee and assignment employee monitoring that is done electronically.”
Of note, the Guide clarifies that the new requirements “do not establish a right for employees not to be electronically monitored by their employer,” “do not create any new privacy rights for employees,” and “do not affect or limit an employer’s ability to use information obtained through the electronic monitoring of its employees in any way it sees fit.”
For more information on electronic monitoring policies, please also see our Human Resources Legislative Update of September 28, 2022, Reminder: Employers to Have Electronic Monitoring Policies in Place by October 11, 2022.
Arbitrator Finds Grievor was Prima Facie Discriminated Against when Employer Denied her Requested Exemption to the COVID-19 Vaccine
Labour arbitrators have carefully walked the line between an employer’s right to govern the workplace and an employee’s right to be accommodated for legitimate religious/creed grounds. This remains the case with the rise in prominence of employers’ mandatory COVID-19 vaccination policies and employees’ subsequent requests for exemption.
In Public Health Sudbury & Districts v Ontario Nurses’ Association, Arbitrator Robert Herman sheds some light on how this issue may be interpreted.
The Arbitrator accepted that an employee may be entitled to an exemption from an employer’s mandatory COVID-19 vaccination policy on the basis of creed where they held a sincere belief that the relationship between the COVID-19 vaccines and fetal cell lines was contrary to their religious convictions.
Ontario Divisional Court Finds Group Living Home Did Not Discriminate Against Disabled Resident by Enforcing a No Visitor Policy During the COVID-19 Outbreak
On September 22, 2022, the Ontario Divisional Court (Court) released Empower Simcoe v. JL, in which the Court set aside decisions of the Human Rights Tribunal of Ontario (Tribunal).
The Court held that Empower Simcoe’s COVID-19 visitor policy (Policy), which temporarily limited visits to essential personnel and was later updated to allow outdoor family visits with physical distancing measures in place, was not prima facie discriminatory.
In coming to this conclusion, the Court observed that reasonable public health measures, like that of Empower Simcoe’s Policy, could not be seen as presenting an affront to dignity. The Court also accepted that the Policy was founded on available medical opinion and was established as a recommended precaution against “a threatening and mysterious viral pandemic.”
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©