Back to the Office, Back to Reality

The workplace in 2022 is far different than what it was in early 2020. The Covid-19 pandemic changed the way most offices function and the way most employees work. Now that restrictions are slowly ending and the “new normal” is established, many employers have questions about their new in-person work environment and what is expected of them and their employees.

This four-part Employment Law Series will discuss expectations, responsibilities and policies surrounding a return to in-person work including mask mandates and vaccination policies. We will also discuss the recent “Right to Disconnect” policy for all workplaces with over 25 employees.

PART 1 – But I Don’t Wanna Go! Rights and Responsibilities Surrounding a Return to In-Person Work

Can my employer force me to return to the office?

Generally speaking, yes. 

This will depend on the terms of your employment contract (whether written or oral).

For employees that had a pre-existing right to work from home, an attempt to change that may amount to constructive dismissal.

Before the pandemic, the Ontario Superior Court of Justice released its decision in Hagholm v. Coreio Inc., 2017. In that case, Ms. Hagholm began working full-time for her employer on the understanding that she could work from home three days per week. Following an ownership change, the employer attempted to force Ms. Hagholm to work five days a week at the office. The Court found that there was an oral agreement which permitted to the Plaintiff to work from home 60% of the time. By refusing to honour that agreement, the employer had effectively fired (constructively dismissed) Ms. Hagholm.

Where remote work was not part of an employee’s existing contract before the pandemic, that employee likely must return to work, subject to the employer’s duty to accommodate.

I was hired during the pandemic

Whether an employee hired to work remotely during the pandemic must return to the office may depend on the terms of their employment contract. If it was not made clear at the time of hiring that remote work was temporary, the employee might be able to claim they had an agreement to work from home, similar to Ms. Hagholm.

My child is sick and cannot pass the required screening for their childcare provider

An employee who has caregiving responsibilities has a right to be accommodated to the point of undue hardship. In the right circumstances, this might include a right to work from home to care for a sick child.

If an employer has accommodated this need for the past two years, it may be difficult for it to now claim it causes undue hardship.

How do we navigate all of these issues?

We strongly recommend that both employers and employees consider being flexible where feasible. 

For example, if an employee is required to self-isolate, employers should consider whether there are options for that employee to remain productive at home. Employers should also consider special circumstances such as an employee’s medical condition, or family status.

Likewise, employees should consider the impact of their behaviour on their co-workers. We encourage employees to continue staying home when self-isolation is appropriate, and to make use of other measures to protect their co-workers (for example masking, and regular handwashing) should they be well enough to pass the applicable screening, but still symptomatic.

PART 2 – The Masked Worker: What are the rules governing mask mandates in the workplace?

Ontario’s Removal of the Mandatory Mask Requirement

On Monday, March 21, 2022, the Government of Ontario lifted the mandatory masking requirement for many indoor settings (including most workplaces). 

As of now, the government plans to remove all mandatory COVID-19 safety measures in all workplaces by June 11, 2022.  This includes long-term care and retirement homes, heath-care settings, and other settings where vulnerable populations are serviced.

Although COVID-19 hospitalizations have been trending upwards, as have daily case counts, Health Minister Christine Elliot recently stated that the government is unlikely to reinstate widespread mask mandates.

Businesses will, however, remain able to institute their own requirements to keep their customers and workers safe.  These might include masking requirements, social distancing, and mandatory vaccination policies.

Ontario’s Chief Medical Officer of Health, Dr. Kieran Moore, has indicated that he will continue to wear a mask in crowded indoor settings.  While masks are no longer required in Ontario schools, they remain strongly encouraged by most school boards.  Locally, while the City of Ottawa has lifted its mask mandate, it continues to highly recommend mask use when indoors.

Employers in Ontario continue to have an ongoing duty to take reasonable precautions to protect their workers pursuant to the Occupational Health and Safety Act. 

This has left both employees and employers confused. 

Can I choose to wear a mask?

Yes.  In fact, as noted above, public health officials encourage you to do so. 

Can my employer force me to wear a mask?

Yes.  Given the comments from public health officials, it is open to employers to determine that masking is a reasonable precaution to protect their workers in most (if not all) settings, subject to the duty to accommodate under the Human Rights Code.

Of course, this may change as the situation evolves, as do public health guidelines.  Factors to consider might include the nature of the workplace, the ability to social distance, and COVID-19 case counts.  For example, mandatory masking might be a more reasonable precaution where workers share a vehicle as opposed to sharing a large indoor space.

What should I do if my employer does not mandate masking?

Whether a masking policy is required may depend on the nature of the workplace.  If your personal circumstances put you at higher risk for contracting COVID-19, this is an issue that you should raise with your employer to see if other accommodations are applicable (i.e. social distancing, telecommuting, etc.).

Once Ontario reaches a point where protection such as masking is no longer mandated at all, even in settings where a vulnerable population is being serviced, it will likely be very difficult to argue that a mandatory masking policy is required to protect employees.

What should employers watch for?

Be mindful of the potential for conflict between those in favour of continued masking, and those opposed.  Businesses could face frustration from customers who do not wish to wear a mask.  There is also the potential for workplace conflict between employees.  We encourage employers to be clear and consistent with their expectations, and to remind employees of any applicable workplace violence and harassment policies.

PART 3 – Context is Key: What Will Happen to Mandatory Vaccination Policies?

Ontario and Ottawa’s mandatory vaccination requirements

As of March 1, 2022, Ontario no longer requires businesses and organizations to check proof of vaccination.

On April 4, 2022, the City of Ottawa ended its mandatory vaccination requirement for most employees and contractors. Vaccination is still required for workers in high-risk settings, for example employees working in long-term care homes.

As of now, the government plans to remove all mandatory COVID-19 safety measures in all workplaces by June 11, 2022. This includes long-term care and retirement homes, heath-care settings, and other settings where vulnerable populations are serviced.

Does this mean that all mandatory vaccination policies are now moot?

No. Employers in Ontario continue to have an ongoing duty to take reasonable precautions to protect their workers pursuant to the Occupational Health and Safety Act. Several recent labour arbitration cases have found that mandatory vaccination policies in a unionized workplace are reasonable and enforceable in appropriate circumstances. In each of these cases, context was key. 

But we implemented the policy because we were required to by the City of Ottawa

Whether a vaccination policy was put in place because a customer required visitors to be fully vaccinated, is only one consideration.  We recommend that employers consider the totality of the circumstances, and the nature of their workplace, when making any decisions about mandatory vaccination policies.

What are some of the relevant considerations?

• The wording of the collective agreement or employment contract, and whether the agreement contemplated some form of discipline should an employee not obtain a required vaccination
• The nature of current government mandates and recommendations
• Whether the employees deal with a high-risk, or vulnerable population
• The nature of the risk related to an outbreak, including whether employees can work remotely or outside, and whether other less intrusive means (i.e. rapid antigen testing) would be sufficient to protect worker health and safety

Can we enforce a “vaccinate or terminate” policy?^*

The closer we are to COVID-19 becoming an endemic disease, the more difficult it may become to enforce a suspension without pay or termination for an employee who refuses to be vaccinated. In many workplaces, regular rapid antigen COVID-19 testing might be a reasonable alternative. Employers run the risk of being exposed to a wrongful dismissal claim if the disciplinary action taken for failure to vaccinate is found to be unreasonable. 

What about booster shots?^*

Depending on the nature of the workplace, a policy requiring employees to receive booster shots as recommended may also be reasonable.

At present, however, there are very few public health requirements with respect to mandatory booster shots. Unless this changes, it may be very difficult for an employer to enforce a termination based on an employee’s failure to obtain a booster shot.

PART 4 – The Right to Disconnect

On December 2, 2021, the Ontario government passed Bill 27, the Working for Workers Act, 2021, amending various pieces of legislation, including the Employment Standards Act, 2000. One of those changes includes the employee’s “right to disconnect”, explained below.

Right to Disconnect

Employers that have 25 or more employees must now have a written policy with respect to disconnecting from work. “Disconnecting from work” means not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other work-related messages.

Employers have a grace period of six months to implement such a policy (i.e., June 2, 2022).

Unfortunately, the government has not yet provided any guidance in terms of what these policies must contain. The legislation only establishes that the policy shall “contain such information as may be prescribed.” 

Workplace policies might include restrictions on responding to communications after work hours. For example, France has introduced legislation which grants workers the right not to respond to work-related communications after their core hours.

Non-compete agreement

The amendments also prohibit employers from entering into employment contracts which are, or include, a non-compete agreement. These prohibitions are now in force, retroactive to October 25, 2021. The legislation includes exemptions pertaining to the sale of a business, as well as for “executives.” 

What does this mean for employers?

Employers will need to review and update their workplace policies. This may be a good time to begin a conversation about how the workplace is changing, and what is expected of employees in a hybrid work environment. Employers should also review their existing employee agreements. Some restrictive covenants may need to be removed or rewritten.

What does this mean for employees?

It is difficult to know whether these policies will have any “teeth” until further information is provided.  Nothing in the legislation as drafted prohibits employers from establishing an employment relationship where employees are “on call.” How your workplace deals with the right to disconnect may vary greatly depending on the type of industry you work in.

Update – April 2022

The Ontario Ministry of Labour has updated its online guide to the Employment Standards Act (the “ESA”) to include sections on a written policy with respect disconnecting from work.

There are still no legally prescribed requirements for such a policy. The employer must only include the date the policy was prepared and the date any changes were made to the policy. The guide confirms that the ESA does not require an employer to create a new right for employees to disconnect from work and be free from the obligation to engage in work-related communications.

The guide primarily provides information regarding how to arrive at the “count” when determining whether the 25-employee threshold has been met. It also confirms that the employer can have a different Policy (or different sections of the same Policy) for different groups of employees.

Reader’s Digest Version?  Don’t panic!

We remain of the opinion that this offers employers an opportunity to begin a conversation about how the workplace is changing, and what is expected of employees in a hybrid work environment.  It may also be a good time to revisit other workplace policies including your Work From Home policy, and your Sick Leave Policy.

How we can help

If you are an employer or employee with any questions regarding a return to in-person work including masking and vaccinations please contact the Employment Law lawyers at Merovitz Potechin LLP. If you are an employer looking for tips and advice on drafting or reviewing workplace policies, or more information regarding the Right to Disconnect policy, we can help. Contact us to set up a consultation.