I was largely an employment COVID lawyer this year and a mandatory COVID vaccine policy lawyer for a part of the year. So, not surprisingly my top employment law stories for 2021 are all COVID related.
Under the Infectious Disease Emergency Leave (“IDEL”) regulation under the Employment Standards Act, a temporary layoff that took place during the “COVID 19 period” was deemed not to be a termination for termination pay purposes under the ESA. The COVID period has been extended a number of times, and the period is currently from March 1, 2020 to July 30, 2022. However, at common law, a temporary layoff is generally a termination (although there are exceptions).
Tens of thousands of employees were temporarily laid off during the COVID 19 period. So the question became whether these temporary layoffs constituted a termination at common law. Or did the IDEL change the common law? One judge has concluded that IDEL does not change the common law so that a temporary layoff under IDEL is still a constructive dismissal, whereas at least one judge has concluded the IDEL Regulation overrides the common law such that a layoff under the IDEL regulation is NOT a constructive dismissal. The resolution of this issue by Ontario’s Court of Appeal will have a significant financial impact on employers who laid off long service employees during the COVID pandemic.
Starting in the fall of 2021, many employers introduced mandatory vaccination policies or required employees to provide regular negative COVID tests as a condition of continued employment. Surprisingly, there was considerable resistance to mandatory vaccination policies in the health care sector. For example, the Quebec government backed down and did not implement a mandatory vaccine policy and instead required mandatory testing, and the Ontario government left it up to individual hospitals to decide. An employee can apply for a medical or religious exemption to a mandatory vaccination policy, but there are few medical exemptions and few religions/creeds that qualify. Most of my clients introduced mandatory vaccination policies and compliance rates have been very high. I think part of the reason for the high compliance rates was because vaccine passports were introduced in many aspects of everyday life. (ie to access restaurants and other retail locations, or as a condition of travel.)
Although the compliance rate for mandatory vaccine policies has been very high there is often at least one holdout at most workplaces. So, the employer had to decide whether to provide a non-required exemption, place the person on an unpaid leave or terminate their employment. Most of my employers initially placed the person on an unpaid leave and then gave the person one last chance to comply with the policy before terminating the employee. Usually the person was terminated for just cause, although in some cases, for short term employees providing notice of termination was an option considered. There have been few cases decided to date on whether refusal to comply with mandatory COVID vaccination policy is just cause for termination. Most of the terminations have only recently taken place. I predict there will be many more cases decided in 2022 and 2023. I believe judges will uphold some discharges and conclude the employer has not proven just cause in others; it will depend on the circumstances of each case. I think health and safety considerations in relation to the employee, other employees in the workplace, and members of the public will be an important – perhaps overriding – consideration. The bigger the health and safety risk the unvaccinated employee poses, the more likely the discharge will be upheld.
One of the factors a judge will consider when determining the appropriate reasonable notice period is the availability of comparable employment given the employee’s education and experience. So, the question is what is the impact of COVID on the availability of comparable employment? There have been a number of decisions addressing this issue. So far judges don’t seem to be awarding significantly higher notice periods because of COVID. Judges will look at exactly when during the COVID 19 pandemic the termination took place and what was known about the likely impact on the labour market at that particular time. At least one judge presumed that the job market was negatively impacted by COVID, such that the notice period in that case should be increased. Some industries however have been busier as a result of COVID, so employers in these industries should lead evidence to rebut this presumption.
Pre-COVID, an employee was generally required to repay some employment insurance benefits received if a subsequent settlement provides for termination pay attributed to the same period of time the employee collected EI benefits. During parts of the COVID pandemic, this requirement was changed so that an employee could collect EI benefits and termination pay in relation to the same period of time. There is no explicit requirement to repay CERB if a subsequent settlement provides for termination pay attributed to the same period of time the employee collected CERB. Nevertheless there is conflicting case law on whether CERB benefits should be repaid. It is not obvious to me why EI and CERB benefits should be treated differently especially since the federal government diverted EI claims to CERB for a period of time. I believe the resolution of the CERB issue will determine whether it makes economic sense for some employees to commence a wrongful dismissal action. For example, if an employee collected CERB for say 8 months, then an employee could be better off by $ 16 000, if EI or CERB benefits need not be repaid (assuming benefits were $ 2000 a month).
For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416-317-9894 or at firstname.lastname@example.org