Canadian Employment Law Today

September 9, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: It is an employer's prerogative to es- tablish policies and procedures, and it is its legal obligation to take all reasonable steps to ensure a safe workplace. During the COVID-19 pandemic, that means mandating the use of PPE and physical distancing in many cases. Various provincial governments, such as those of Ontario and Alberta, have published guidelines for returning to work during COV- ID-19. These include a hierarchy of controls to address identified hazards related to the virus in the workplace: • Engineering controls, such as physical distancing and barriers • Administrative controls, such as adjusting policies and procedures • The use of personal protective equipment (PPE) This hierarchy requires all mitigation mea- sures to be taken before requiring the use of PPE. Employees must also be trained to correctly use PPE and have necessary equipment provided to them by an employer requiring its use. Breach of a policy will warrant discipline, as will insubordination (refusal to follow direc- tion) if the rules or directions are reasonable. Whether they will warrant summary dismissal is an entirely different question. This would be evaluated using a contextual approach. You would have to assess the need for the policy in question and the potential conse- quences of a failure to comply. For example, if an employer in a high-risk environment man- dates the wearing of masks in the workplace and an employee refuses to comply without a valid reason, it is more likely that dismissal will be warranted. Alternatively, in a low-risk situation, such as an isolated office capable of complete social distancing, this might not be the case. If a re- quirement or rule is found not to be justifiable, then breaching it will not generate the same consequences. Courts will also consider all relevant factors, and one such factor will be the importance of the policy. Our judiciary is particularly inclined to support the enforcement of safety rules and regulations, and that will undoubtedly be even more true during the COVID-19 pandemic. As long as the requirement is defensible and employees are properly advised of the expecta- tions and warned of the consequences of fail- ing to comply, then all else being equal, it is more likely that dismissal will be upheld. It is vital that employers craft and commu- nicate valid and reasonable policies and pro- cedures relevant to the specific conditions of their workplaces in order to have the ability to enforce them. Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He can be reached at stuart@rudnerlaw.ca or (416) 864-8500. Answer: Contrary to popular belief, most em- ployers do not have the right to temporarily lay employees off, and doing so can lead to a constructive dismissal claim. Some of the confusion in this regard stems from the fact that employment standards legislation refers to temporary layoffs. However, those statutes set out the parameters for implementing tem- porary layoffs; they do not give employers the right to do so, which must come from the contract. When an employee is temporarily laid off, they are off work and are not being paid; lay- offs effectively pause the employment rela- tionship. Employers are generally not required to continue benefits during a temporary layoff period, although specific rules vary from ju- risdiction to jurisdiction. For example, under the Canada Labour Code, a temporary layoff for federal employees can be: • a layoff of three months or less, or • a period of more than three months and: • the employee is notified of the date they will be recalled (within six months), • the employee continues to receive benefits or pension or insurance plan contributions or • the employee receives or could be en- titled to receive supplementary unem- ployment benefits. In Ontario, temporary layoffs are governed by the Employment Standards Act (ESA), which provides that layoffs cannot last for more than 13 weeks in any period of 20 consecutive weeks, unless: • the employee continues to receive sub- stantial payments from the employer, • the employer continues to make pay- ments for the benefit of the employee under a pension or insurance plan, • the employee receives supplementary unemployment benefits, • the employee would be entitled to supple- mentary unemployment benefits but isn't receiving them because they are employed elsewhere, • the employer recalls the employee within the time approved by the director, • in the case of an employee who is not rep- resented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee, or • where the employee is represented, as set out in an agreement with the trade union. If those criteria are met, a layoff can last up to 35 weeks in any period of a 52-week pe- riod. It is important to note that some of these time limits have been adjusted where the lay- off relates to the COVID-19 pandemic. On- tario enacted Regulation 228/20, which effec- tively changed all COVID-19-related layoffs to leaves of absence. Normally, employees on a statutory leave of absence are entitled to continuation of their benefits, but an excep- tion was carved out for those already on leave where benefits had already been suspended. In most cases, employers are not required by statute to continue benefits or pension plan contributions during temporary layoffs. Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com RUDNER LAW, TORONTO with Stuart Rudner Benefits and vacation time during temporary layoffs Question: What are the employer's obligations regarding benefits, vacations, service time accrual, etc., for employees on temporary layoff? Canadian HR Reporter, 2020 2 | | September 9, 2020 September 9, 2020 Employee refusing to follow safety protocols Question: Is an employee's refusal to follow safety procedures related to wearing PPE or physical distancing serious enough to warrant dismissal? Breach of a policy will warrant discipline. Whether it warrants dismissal depends on the context of the situation.

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