What the Easing of COVID-19 Restrictions Means for Employers in Ontario
The Government of Ontario recently announced the next steps in the province’s reopening plan.
Effective January 31, 2022:
all contact tracing requirements (including record keeping) have been removed.
Employers are no longer required to collect (or record) the contact information of employees and other individuals entering their business.
Employers are still required to use employee screening questionnaires and are required to post the COVID-19 screening signs in plain sight for those entering their business.
the remote work requirement has been lifted.
Previously, businesses were required to work remotely unless employees were required to work in person due to the nature of their position.
Effective February 17, 2022:
capacity limits in certain indoor public settings will be eliminated (i.e. restaurants, meetings and event spaces, cinemas, and casinos).
capacity limits in certain indoor public settings will be increased (i.e. indoor weddings, concert venues, sports arenas).
Effective March 1, 2022:
capacity limits will be lifted in all remaining indoor public settings.
proof of vaccination requirements for all settings will be lifted.
The Government of Ontario has made it clear that despite the easing of these restrictions, businesses and other settings may choose to continue to require proof of vaccination and that all masking requirements will remain in place.
While these changes are significant, employers must remember that their obligation to keep their employees safe in all circumstances under the Occupational Health and Safety Act, 1990 has not changed or been lifted. Social distancing, masking, proof of vaccination and remote work are all tools that remain available to employers to ensure employees remain protected against COVID-19.
Employers should assess their own circumstances and the realities of their workplace before implementing any significant changes based on the government’s new reopening plan.
Mandatory Vaccination Policies
We previously wrote about mandatory-ish vaccination policies in a blog post found here.
Recently, labour arbitrators have considered several challenges from unions to mandatory vaccination policies in unionized workplaces. While these decisions make good headlines and have been circulating online, it’s important to remember that each decision is fact-specific and has been decided with the unique wording of the relevant collective agreement and policies in mind.
However, these cases include principles that are helpful for employers in non-unionized settings:
Mandatory vaccination policies should be reasonable, clear and unequivocal.
There is no “off-the-shelf” mandatory vaccination policy. Employers must take the time to consider what makes sense in their workplace and for their employees.
Mandatory vaccination policies should be clearly communicated to employees and provide employees with the opportunity to take action (i.e. getting a vaccination or obtaining necessary documentation) before its implementation.
The consequences of non-compliance with the policy should be clear.
Employers must ensure that employees’ personal health records are properly recorded and stored, and that the relevant privacy legislation is complied with.
Update on Non-Competition Agreements
Bill 27, Working for Workers Act, 2021 (the “Act”) received Royal Assent in December 2021. One of the most talked-about elements of the Act was an amendment to the Employment Standards Act, 2000 (ESA) which prohibits the use of non-competition clauses and agreements in Ontario (with a few exceptions). This prohibition has an effective date of October 25, 2021.
The most frequent question we received about the non-competition provision was how the Act impacts non-competition clauses or agreements that were entered into before October 25, 2021. As the Act did not explicitly answer this question, we had to wait for the government or the courts to shed some light on this question. We now have some clarity from the Ontario Superior Court of Justice in the recent decision of Parekh et al v. Schecter et al, 2022 ONSC 302.
In this decision, the court considered the case of a dentist who had entered into a non-competition agreement in 2020, which prohibited him from practicing dentistry within a 5km radius of the dental practice until October 27, 2023. However, in 2021 the dentist left the practice to provide dental services at a different dental practice within the 5km radius. The dentist argued that the Act rendered his non-competition restriction unenforceable, while his former dentistry practice disagreed.
In reaching its decision, the court conducted a plain reading of the legislation wherein it concluded that “Faced with this express legislative intent to make the ESA amendments applicable as of October 25, 2021, and not earlier, it cannot be said the provisions with respect to non-compete clause applies to contracts of employment with non-compete clauses entered into before October 25, 2021.”
While this decision certainly provides clarity to employers about non-competition agreements entered into before the effective date, employers are reminded that the courts will only enforce non-competition agreements in narrow circumstances.
For additional information about the Act, see Cynthia Ingram’s previous post here.
Ministry of Labour Orders: A Cautionary Tale for Employers
The Ministry of Labour is reminding employers that non-compliance with orders from Employment Standards Officers (“ESO”), including orders to pay wages, can be costly.
An Ontario company was recently fined $90,000 by a Justice of the Peace for a failure to comply with an ESO’s order to pay wages. The court also fined the director of the company $10,000.
Luckily, imprisonment did not form part of the fine, but it could have. Employers are reminded that the Ministry of Labour (“MOL”) has powers to prosecute under the Provincial Offences Act which can result in significant fines or imprisonment of directors, officers and agents.
We recommend that employers:
Know their obligations under the ESA.
According to the MOL, the top claims investigated relate to the payment of wages, termination pay, vacation pay and overtime. Calculating, tracking and paying these entitlements to employees correctly can limit your exposure to an employee filing a claim.
Be proactive and keep records.
The Ministry of Labour initiates proactive blitzes and inspections each year.
If employers already comply with the ESA and keep detailed records of things like wages, vacation pay and overtime, they can rest assured that they will be prepared if the MOL comes knocking.
Take Ministry of Labour complaints and ESO orders seriously.
As can be seen in this case, ignoring MOL orders or not taking them seriously can result in serious and potentially costly consequences.
These orders do not disappear and will only get worse if employers fail to act or respond to them.
Ministry of Labour – What’s New:
Check out the MOL’s recent newsletter, which includes the following: