The pandemic has wreaked devastation on various sectors in the economy with an estimated 355,000 jobs lost in 2020, and one in six businesses closed in the province of Ontario. As employers and workers navigate the re-opening of the workplace, it is worth considering certain key principles in employment law and their application in the return to work.

The law

Employers in Ontario are governed by the Occupational Health and Safety Act (OHSA), the Employment Standards Act, the Human Rights Code and, in unionized settings, the Labour Relations Act. In addition to these statutes, employers are bound by the terms of their employment agreements (or in the case of unionized workplaces, a collective agreement), as well as certain common law principles.

Work refusals: an abundance of caution

Under OHSA, employers are obligated to take every precaution reasonable for the protection of the worker. Employees (except those working in specific industries to whom OHSA does not apply) can refuse work where they believe that “the physical condition of the workplace or part thereof is likely to endanger himself or herself” (Section 43).

Once a worker refuses work, the employer must conduct an internal investigation and render a decision. If the employee disagrees with the outcome of the investigation, the Ministry of Labour conducts a further investigation and renders a decision in writing. If either party disputes the findings of the ministry, the next step is an appeal to the Ontario Labour Relations Board.

While there are few reported decisions on work refusals during the pandemic, the available rulings indicate a strong reliance on risk mitigation, even where the evidence is not entirely clear. In a case involving Inovata Food Corp, a frozen food manufacturer appealed a Ministry of Labour order that required workers in a production line to wear face masks throughout the day.

In the employer’s view, face shields (which were mandated) provided adequate protection and masks caused workers to touch their faces to adjust the mask or prevent their glasses from fogging up, creating a further risk. Ultimately, the labour relations board concluded that “while it would be preferable to have more reliable and definitive evidence,” the risks of not masking at all clearly outweighed the risk of masking.

In another decision, the labour relations board considered an application by nurses in four long-term care homes in Ontario requiring their employer to provide them with appropriate access to personal protective equipment (PPE) to protect themselves and their residents. There, the board ordered the long-term care homes to provide nurses working in their facilities with access to N95 facial respirators, and other appropriate PPE, and to implement the isolation of residents and staff as protective measures pending the full hearing of the union’s grievances.

Mandatory vaccines: yay or nay?

As the supply and distribution of vaccines improves, the ability to mandate vaccines in the workplace is front of mind. While this question has not yet been put to the courts, the treatment of mandatory vaccines for influenza provides a helpful comparison.

In a 2008 decision, the Ontario Labour Relations Board considered a complaint filed by the nurses’ union that a mandatory vaccine program violated the collective agreement. Ultimately, the tribunal confirmed that nurses could be placed on an unpaid leave of absence during an influenza outbreak in the hospital. Their decision rested, in part, on past findings that unilaterally implemented vaccination policies were reasonable and enforceable because they were “designed to meet the legitimate and crucial objectives of the employer.”

Mandatory vaccination policies will likely be upheld in industries or establishments where health and safety are critical to the employer’s objectives — for instance, hospitals, long-term care homes, or other front-line positions. In other settings, it is unclear whether an employer could discipline staff, or find cause for termination, for a failure to get the vaccine.

Employers would do well to include language in their employment agreements and policies going forward to require employees to follow all public health guidance to prevent the spread of COVID-19, recognizing, of course, that there may be human rights considerations that require accommodation.

Changing roles: get consent!

By law, an employer who unilaterally changes the role of an employee without consent may be subject to a claim of constructive dismissal: the idea is that, by fundamentally altering the position, the employer has effectively terminated the worker and is liable for notice or pay in lieu of notice. To pursue a claim, employees must reject the proposed changes, resign from their position, and sue the employer for those amounts to which they would have been entitled had they been dismissed from their roles.

At the start of the pandemic, there were countless lay-offs, reductions to staff hours, and other changes that might have given rise to claims of constructive dismissal. The province subsequently enacted Ontario Regulation 228/20 which states that any elimination of work or reduction of wages between March 1, 2020 and July 3, 2021 could not be considered a constructive dismissal where the impetus for the change was COVID-19.

While these amendments likely gave some comfort to employers, a 2021 court decision has confirmed that employees whose roles were fundamentally altered may still have a claim for constructive dismissal under the common law, even if such a claim no longer exists under the Employment Standards Act. In that case, an ophthalmic technician and officer manager who was placed on a temporary lay-off in May 2020 was able to pursue a claim for constructive dismissal against her employer, despite amendments to the Employment Standards Act.

The case suggests that workers whose positions were fundamentally altered over the course of the pandemic may have recourse against their employers. It also serves as an important reminder to employers that fundamental changes to any role must be made consensually and, that employment agreements ought to account for potential changes to mitigate against the risks of such claims.

Expanding the location of the workplace to include remote work, where possible, and including language around lay-offs are examples of key terms that should be included in employment documentation in this climate of uncertainty.

What next?

The pandemic has ushered in myriad changes to our day-to-day lives. It has also fundamentally altered our working lives. Employers and employees ought to be aware of their respective rights and obligations as we navigate the new normal.