Last year, three of my top five stories were COVID related. This year all five stories are COVID related.
1. COVID 19 – Temporary layoffs
This issue remains my number one story. Some judges have concluded that a temporary layoff under the Infectious Disease Emergency Leave (“IDEL”) regulation under the Employment Standards Act does not change the common law so that a temporary layoff under this regulation 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. Under IDEL, some employers have laid off employees from March 2020 to December 31, 2021 without any prior notice and without providing the person with any termination pay. The resolution of this issue will have a significant financial impact on employers who laid off long service employees during the COVID pandemic.
2. COVID – Mandatory vaccination policies
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.)
3. COVID – Is the failure to comply with a mandatory vaccine policy just cause for termination?
Although the compliance rate for mandatory vaccine policies was very high there is often at least one holdout at many workplaces. So the employer had to decide whether to provide a non-required exemption, put the person on a leave, or terminate. 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. 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. I hate to sound like a lawyer, but it will depend on the circumstances of each case. I think health & 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 & safety risk the unvaccinated employee poses the more likely the discharge will be upheld. I predict unionized employers will have less luck justifying a “reasonable” policy under the collective agreement than non-union employers will have proved just cause.
4. COVID 19 – Impact on common law reasonable notice periods
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.
5. COVID – Impact of EI benefits and CERB benefits on wrongful dismissal damages
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. If an employee collected EI or 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.) I believe the resolution of the CERB issue will determine whether it makes economic sense for some employees to commence a wrongful dismissal action. If it goes in favour of employees, then I can see some employees commencing small claims court actions where an employee can claim up to $ 35 000 in damages.
Latest posts by Doug MacLeod, MacLeod Law Firm (see all)
- Doug’s top 5 employment law stories of 2021 - December 14, 2021
- Enforcing mandatory COVID vaccination policies - November 9, 2021
- Human rights exemptions to mandatory COVID vaccine policies - October 14, 2021