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As of 12:01 a.m. Friday July 17, 2020,
Masks / face coverings are required inside enclosed public
The Regional Municipality of York has endorsed a recommendation from York Region Medical Officer of Health Dr. Karim Kurji to issue an instruction requiring operators of enclosed public spaces in York Region to have a policy in place that prohibits persons from entering premises of the establishment if the person is not wearing a face mask or covering, subject to appropriate exemptions.
Effective Friday, July 17, 2020 as of 12:01 a.m., business owners and operators in York Region must have a policy in place to prohibit people from entering if they are not wearing a face mask or covering. Customers, employees and visitors who enter enclosed public spaces must wear a face mask or covering.
This Instruction applies to the following establishments:
BACK TO BASICS: THE DUTY TO ACCOMMODATE
By Cristina Tomaino, CCPartners
As employers begin to turn their minds to reopening, it is an ideal time to revisit some basics of employment law best practices. This week, we’ll review another key issue for employers – the duty to accommodate.
Most employers are well aware of their duty under the Ontario Human Rights Code (“OHRC”) to accommodate protected characteristics of employees, such as disability or family status, to the point of undue hardship. However, any employer who has been involved in the accommodation process knows that it can be difficult to successfully navigate.
One area where employers often fall short is the procedural duty to accommodate. In Ontario, a procedural failure on the part of the employer can lead to a finding that there has been a breach of the OHRC, even if there was no substantive accommodation that could have been provided short of undue hardship. In order to satisfy this procedural obligation, employers are required to inquire into an employee's accommodation needs, obtain any relevant documentation, and conduct an individualized assessment of possible accommodation measures to address those needs. Applying a “one size fits all” approach to accommodation is not sufficient. In a unionized workplace, it may be appropriate to involve the union in assessing available accommodations and seek their input as to possible alternatives.
The substantive component to accommodation considers the reasonableness of the accommodation offered. It is the duty of the employer to demonstrate what considerations, assessments, and steps were undertaken to accommodate the employee to the point of undue hardship. Importantly, employers are not required provide employees with a perfect accommodation, or even with their preferred accommodation, they are only required to provide an accommodation that is appropriate in the circumstances.
Undue hardship is a legitimate defense that an employer may raise to justify why it was unable to successfully accommodate an employee in the workplace. This standard requires the employer to demonstrate that significant difficulties – beyond mere inconvenience – would result if it had to accommodate the employee. Common factors to determine whether undue hardship exists include safety, the size and nature of the employer’s operations, and the cost of the accommodation. Again, an individualized approach is key in determining whether undue hardship exists in a particular accommodation case!
As more employers begin to transition their employees back into the workplace it is important to keep these obligations in mind, especially if individuals express that they are unwilling or unable to return. While a general fear of contracting COVID-19 will not typically justify a refusal to return to work, employers should be mindful that a refusal may trigger the duty to accommodate if protected characteristics are at play – for example, an employee with a mental health disability may require accommodation in the form of a graduated return to work program. Another important area that employers will need to address is the accommodation of childcare needs as parents of young children struggle to find safe and reliable childcare as our economy slowly re-opens with limited daycare and summer camp resources. Employers will need to be flexible in addressing childcare concerns in the coming months.
Of course, employees must do their part in the accommodation process as well! The timely provision of appropriate information and, if necessary, medical documentation is an integral element of the accommodation process. An employee’s failure to participate in the accommodation process may ultimately amount to job abandonment; however, that approach should only be taken after careful consideration, and, ideally, consultation with counsel.
BACK TO BASICS: THE IMPORTANCE OF EMPLOYMENT CONTRACTS
By Cristina Tomaino, CCPartners
As employers begin to turn their minds to reopening, it is an ideal time to revisit some basics of employment law best practices. A natural place to start is the importance of contracts – an employer’s best friend!
Enforceable termination clauses in valid employment agreements are a key tool of employers in limiting liability to employees both during employment, for example in the event of a temporary layoff, and at the time of dismissal. The importance of a properly drafted employment contract was made readily apparent by the COVID-19 crisis. As businesses were forced to shut their doors in the name of public health, many employers grappled and continue to grapple with implications of putting employees on a temporary layoff. Many of our regular readers may have seen dire warning from local news sources claiming that employers are “breaking the law” when laying off employees. While perhaps overstated, there is a risk of triggering a constructive dismissal claim by placing an employee on temporary layoff, even if in accordance with the Employment Standards Act, 2000, if there is no contractual entitlement to same.
Most importantly, we regularly and strongly recommend that employers implement contracts with enforceable termination clauses. This can be readily addressed in the case of new employees – simply seek out legal advice from experts in employment law and make sure your contract meets the rigorous requirements mandated by the courts before you offer employment to anyone. However, for employers who may be considering implementing contracts for existing employees there are additional factors to consider.
One common misstep by employers is simply drafting a new contract and presenting it to new employees. Unfortunately, these new agreements are unenforceable as they lack proper legal consideration. In a new employment relationship the legal consideration necessary to create a binding agreement is already present – the employer offering employment and getting a signed agreement reducing its liability in return. Similarly, employees must “give” something to existing employees to “get” an enforceable employment contract. That said, it is certainly possible to move existing employees onto employment agreements in the event that they did not sign one when they were initially hired or the contract they did sign proves to be unenforceable.
Changes to an Employee’s Terms and Conditions of Employment
Where an employer promotes an employee, or moves them from part-time to full-time or from contract to permanent status, the change in employment status can be “fresh consideration” for an employment contract with enforceable termination provisions. Employers must be careful to present the employment agreement as a condition of the promotion or change in status, must provide the contract to the employee before the change takes place, and the employee must be given enough time to seek independent legal advice if they so choose. Other changes such as the introduction of a group benefit plan, pension plan or non-discretionary bonus plan can also provide the necessary consideration for a new employment agreement.
In certain circumstances, providing employees with signing bonuses in return for new termination language in their agreements can provide the fresh consideration necessary to create an enforceable agreement. Employers need to be clear that the signing bonus is conditional on agreeing to the new terms and make sure the transaction is properly documented. Once again, employees should be given time to consider their options and seek independent legal advice on the terms of the new termination language.
Giving Notice of the New Terms
In our opinion, the best way to implement or amend employment contracts for existing employees is to give proper notice of the change to the terms and conditions of employment. This can be done on an individual basis by giving common law reasonable notice of the change, or it can be done with one effective date for all the employees based on the employee with the longest service in your organization. For example, if you have three employees with 10, 12 and 14 years’ service, you would take the employee with the most service (14 years), determine their common law reasonable notice entitlement and then advise all of the employees that the new agreements will become effective on that date. Effective communication is critical if providing working notice of a change in contractual terms, including communication of the repercussions of not agreeing to the changes (termination of employment at the end of the notice period).