In this article, I discuss major shifts and the most noteworthy employment-related decisions of 2020. Although COVID-19 demanded significant attention from both employers and lawmakers, there were several significant judicial developments which were independent of the pandemic.
- Responding to COVID-19
Through 2020, the COVID-19 pandemic necessitated a significant amount of changes to business operations and workplaces, including with respect to occupational health and safety requirements, new employment standards measures, assistance with renumeration through the Canada Emergency Wage Subsidy (CEWS) and how to address temporary layoffs as the pandemic failed to subside. Below is a short summary of some of the key changes that evolved throughout the course of the year.
- Occupational Health and Safety
In response to the pandemic, Ontario released sector-specific safety guidelines and requirements to help employers protect workers, customers, and the general public from COVID-19. Ontario required most of its businesses and organizations to implement a workplace screening tool that requires staff members and essential visitors to complete a screening questionnaire before entering the workplace each day.
As a result of the most recent stay-at-home order at the end of 2020, issued alongside the declaration of a second provincial emergency in Ontario, the province promised to ramp up its enforcement against individuals and organizations not complying with orders.
- Infectious Disease Emergency Leave
In May, the Ontario government passed O. Reg 228/20, which temporarily modified the Employment Standards Act, 2000 (the “ESA”) to help employers and employees cope with temporary business interruptions caused by COVID-19 and related restrictions. Under the regulation, non-union employees whose wages or hours were temporarily reduced or eliminated due to COVID-19 were deemed to be on a job-protected Infectious Disease Emergency Leave (“IDEL”). Therefore, despite an employer unilaterally reducing an employee’s wages or hours as a result of COVID-19, the employee would not be considered statutorily laid off or constructively dismissed. Originally, the applicable “COVID-19 period” was scheduled to end on September 4, 2020, but the Regulation has been subsequently amended on two occasions, with the current “COVID-19 period” set to expire on July 3, 2021.
Absent judicial guidance, there remains ongoing tension between employers and employees regarding what impact, if any, the Regulation has or had on an employee’s entitlement to bring a common law constructive dismissal action if they were placed on a layoff that was not contemplated by their employment agreement. COVID-era cases are presently making their way through litigation processes, and we await judicial guidance on temporary layoffs that were precipitated by the pandemic, including government orders to close or significantly reduce the operations of private businesses.
- Impact on notice periods
Although we have yet to see the full weight that the pandemic will have on courts’ assessments of reasonable notice and mitigation, in the recent decision Yee v Hudson’s Bay Company, 2021 ONSC 387, the Ontario Superior Court held that the relevance of the COVID-19 period varies depending on whether the employee was terminated before or after the beginning of the pandemic. The Court held that the pandemic is less relevant when the termination occurred before the pandemic began, therefore applying the logic of “taking the termination when you find it” and determining an employee’s entitlements based on the circumstances that existed at the time of termination.
Given that employees still bear the burden of mitigation regardless of when they were terminated, it is likely that courts will take COVID-19 into effect when considering if mitigation was possible and assessing notice periods, even in situations when the termination occurred pre-pandemic. This is especially true given that “the reasonableness of the notice must be decided with reference to each particular case” and as a whole, as per Bardal v. Globe and Mail.