Update on Recent Changes: IDEL and Vaccinations

There was yet another change made by the Ontario government as it relates to the Infections Disease Emergency Leave (“IDEL”).

Previously, we had advised many of you that the deemed IDEL leave was to expire on January 2, 2021.  However, on December 16, 2020, the Province of Ontario, through regulation, has extended the expiry date of the IDEL from March 1, 2020 to July 3, 2021. This is good news, and yes this means that any employees on a deemed IDEL due to a temporary lay off continue to be on IDEL. So, what does this mean?

1. If you decide to move forward with permanent terminations on January 2, then as long as the terminations were based upon economic circumstances, and had nothing to do with the IDEL itself, then you should be ok, and those terminations will be dealt with in accordance with the contract and common law rules that apply to all terminations.  Any permanent terminations during this period do carry the residual risk of a "reprisal complaint" - employees arguing that they are being punished for being on IDEL.

2. If by July 3, 2021, you are still not ready to bring IDEL employees back to work, you will be able to proceed with temporary lay-offs as of that date, subject all the applicable rules that apply to lay-offs.

3. Remember, if your employees are in a benefit plan, you are required to maintain benefits for them during the IDEL as well.

The Province has simply provided more time for employers before having to terminate or having to lay-off - in the hope that by July 3, 2021, employers in Ontario will be in a better position to bring as many of their employees as possible back to active work.

Vaccinations

We have been getting many questions related to vaccinations and COVID-19 testing in the workplaces. As we prepare for the COVID-19 vaccination process, it is anticipated most Canadians who want to will be vaccinated by the end of 2021. Many employers are interested in knowing what their rights and obligations are with respect to vaccinations and testing.

We will be exploring this with you further (likely in a webinar), but here are a few things to keep in mind with respect to vaccinations:

• Currently, the law does not legally require adults to take vaccines (Ontario does provide for mandatory vaccination for school age children).  

• Generally, an employer cannot compel an employee to take a vaccine as it exposes the employer to liability for the following reasons:

  1. An intrusion on the employee’s security of person.

  2. May give rise human rights violations as it may be discriminatory on the basis of disability, or religious or political beliefs.

  3. Exposes the employer to liability should the employee suffer an adverse reaction from the vaccine.

• Generally, an employer cannot terminate an employee for not taking the COVID-19 vaccine.

• However, employers do have an obligation under the Occupational Health and Safety Act to promote and provide a safe working environment. Employers have a positive duty to protect employees from work-related illness (or injury). As such, employers can encourage employees to get vaccinated just like many do with the flu shot. Further, employers may consider policies which state that an employee who does not provide proof of vaccination cannot come back to work until the COVID-19 risk is decreased where the safety of the work environment is paramount. Testing protocols may be adopted as well. This is very fact specific, so careful attention must be paid to such policies.

Despite the foregoing, we have seen cases which have allowed employers in the healthcare sector to impose COVID-19 testing in the workplace. In Christian Labour Association of Canada v Caressant Care Nursing & Retirement Homes, a very recent labour arbitration decision dated December 9, 2020, the arbitrator upheld the employer’s right to impose mandatory COVID testing on employees. In this case the employer was a retirement home (different from a long term care facility). The arbitrator ruled that the testing policy was reasonable. It’s unclear how this would apply in a non-health care setting or in a non-unionized environment.   We are paying very close attention to this issue, as there will be more legal developments especially as vaccines are available and deployed into the broader population.

So it looks like 2021 will be quite active on the legal front.  We will continue to monitor and provide updates. Here’s is to a brighter 2021! Stay safe.