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THE WEEK IN REVIEW #13: KEY COVID-19 DEVELOPMENTS FOR ONTARIO EMPLOYERS

June 22, 2020

This is the thirteenth bulletin in a weekly series that provides a recap of important COVID-19 developments and their impact on employers as they navigate these challenging times. This recap covers the week of June 15, 2020 and is current as of June 22, 2020.

During the week of June 15, 2020, the federal government announced the extension of the Canada Emergency Response Benefit (“CERB”) for an additional eight weeks, and more regions in Ontario proceeded to Stage 2 of the province’s reopening plan. Additionally, the Ontario government passed legislation temporarily banning commercial evictions, released a new workplace safety guide for employers, and published a safety plan for the 2020-2021 school year. Finally, the Ontario Court of Appeal released a new decision with major implications for the enforceability of termination clauses in employment agreements.

These key developments are set out below.

Canada Emergency Response Benefit (CERB) Extended for Another Eight Weeks

On June 16, 2020, Prime Minister Justin Trudeau announced that the Canada Emergency Response Benefit (“CERB”) will be extended for an additional eight weeks. The CERB will now be available for a period of 24 weeks, instead of 16 weeks, for individuals who stopped working due to COVID-19.

This eight-week extension will allow those who have been receiving the CERB since it was first launched in April and who are still out of work to remain eligible for the benefit beyond the first 16 weeks during which they received it. Employers that were expecting calls from employees who previously would no longer have been eligible for the CERB by early July to inquire about returning to work should expect far fewer of these calls now that those employees can now maintain income support for almost two more months.

For more details about this announcement, please see our recent article.

More Regions in Ontario Allowed to Proceed to Stage 2 of the Province’s Reopening Plan

On Friday, June 19, 2020, the regions of Durham, Hamilton, York, Halton, Niagara, Haldimand-Norfolk, and Sarnia-Lambton entered into Stage 2 of the province’s reopening plan.

The City of Toronto and Peel Region will be allowed to move to Stage 2 as of Wednesday, June 24, while Windsor-Essex will continue to remain in Stage 1.

For more details on what businesses and activities are permitted under Stage 2, please see our recent article.

New Ontario Legislation Bans Commercial Evictions

On June 17, 2020, the Ontario government passed the Protecting Small Business Act, which temporarily halts or reverses evictions of commercial tenants during COVID-19. This legislation protects businesses eligible for the Canada Emergency Commercial Rent Assistance (“CECRA”) program from being locked out, evicted, or having their assets seized by property owners. The legislation applies retroactively from May 1, 2020 until August 31, 2020.

This new legislation is good news for employers of small businesses that have been struggling to pay rent due to the economic impacts of COVID-19, and that are not currently benefiting from the CECRA program.

Ontario Government Released a New Workplace Safety Guide for Employers

On June 16, 2020, the Ontario government released a new toolkit to help employers develop workplace safety plans to protect workers and customers from the spread of COVID-19 as their businesses reopen. The COVID-19 Safety Plan guide builds on the provincial government’s numerous existing sector-specific guidance documents to support employers as business in most regions of Ontario begin their return to work process during Stage 2 of the province’s reopening.

The guide includes a template questionnaire to help employers identify, assess and mitigate COVID-19 risks and create and implement tailored safety plans for their workplaces.

On a general level, the guide encourages employers to minimize the risk of spreading COVID-19 in their workplaces by screening workers, supporting the self-isolation of those with symptoms, and ensuring physical distancing and hand hygiene, among other steps. It encourages employers to share their workplace safety plans not only with employees, but also with supervisors, unions, contractors, and suppliers.

The guide reaffirms the public health recommendation that individuals wear face coverings in public, but emphasizes that face coverings are not the same as personal protective equipment (“PPE”) and are not a proper substitute for physical distancing in the workplace.

Takeaways

Employers should take advantage of this new government guidance tool to ensure worker safety. As discussed in our earlier article, under the Occupational Health and Safety Act (“OHSA”), employers have an obligation to take every precaution reasonable in the circumstances to protect a worker. Failure to review and adopt government guidelines could be considered evidence that an employer has failed to meet its workplace health and safety obligations.

Although the guidelines are not technically “mandatory”, they help inform employers about what precautions the government considers reasonable in the context of COVID-19. For example, implementing the use of PPE without implementing other more effective measures where feasible, such as allowing employees to work from home and physical controls, may suggest that the employer has not taken every reasonable precaution to protect its workers.

However, to ensure that they are meeting their legal obligations under the OHSA, employers should ensure that they conduct risk assessments tailored to the particular context of their workplaces, and be willing to implement health and safety measures that may go beyond government guidelines and requirements. While these guidelines are helpful tools for employers to leverage, simply following the guidelines is not sufficient to ensure that the employer has done its due diligence with respect to meeting its health and safety obligations.

If they have not done so already, employers should begin the process of conducting risk assessments and developing workplace safety plans as soon as possible, as more businesses begin to reopen in most regions of the province. As the guide recommends, employers should regularly review and update their workplace safety plans as the COVID-19 situation and the conditions affecting their particular workplaces evolve.

Ontario Government Released a School Safety Plan for the 2020-21 School Year

On June 19, 2020, the Ontario government released its safety plan for the 2020-2021 school year. Some of the safety plan’s key elements include:

  • guidance for developing health and safety protocols, including the use of personal protective equipment;
  • professional development training for teachers on the new protocols and directions;
  • supports for students with special education needs;
  • enhanced mental health and well-being supports;
  • guidelines for student transportation systems;
  • regional options for reopening based on the advice of local public health authorities; and
  • a checklist to help boards in their reopening planning.

The plan outlines three possible alternate scenarios for how school will resume in September, depending on the public health situation at the time:

  1. A normal school day routine with enhanced public health protocols;
  2. A modified school day routine with alternate day or week in-person delivery, using a cohorting model with a limit of 15 students in a classroom at a time; or
  3. At home learning through remote education if the school closure is extended, and/or if some parents choose not to send their child back to school.

The Ontario government is asking school boards to plan for each of these scenarios and develop appropriate protocols specific for their regions. Parents will also be given the option to choose to send their children to school in-person or have them participate in remote learning.

A Major New Court of Appeal Decision Means Many Termination Clauses May Now Be Unenforceable

On June 17, 2020, the Ontario Court of Appeal (“ONCA”) released a major new decision on the enforceability of termination clauses, Waksdale v Swegon North America Inc , potentially making the majority of termination clauses in Ontario, chiefly those that have not been drafted or reviewed since 2018, unenforceable. For more information about the decision and its implications for termination clause enforceability, please read our recent blog.

This change in the law is particularly significant as many employers must make difficult termination decisions in the near future due to the economic impacts of COVID-19 on their businesses. In many cases, employers may no longer be able to rely on the termination clauses in those employees’ contracts, and many of those employees may, as a result, be entitled to the much greater common law reasonable notice termination entitlements. Given the tough economic times, having enforceable termination clauses in employment agreements that limit an employee’s termination entitlements and allow the employer to have predictability when considering the costs of ending the relationship is of utmost importance.

For more information or assistance in reviewing your existing employment agreements and/or in strategically implementing new employment agreements in your workplace, contact any of our lawyers.

This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.

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