One Year In - Lessons from the Pandemic – Workplace Law Update

March 19, 2021 Bren de LeeuwBC Lower Mainland 288 Views

EMC BC: Virtual Networking Event Summary

As we think about everything that has transpired in the past year, it’s safe to say without a doubt that we have all witnessed considerable change in our businesses and personal lives and with all of this, there are bound to be lessons learned along the way!  In an effort to stay abreast of the ever-changing legislative landscape, particularly in a year of incredible change and adaptation, this session focused on the long-term impact of the pandemic on our labour force and other issues related to the complexities of moving forward with our businesses during these unusual times!

Our Workplace Law Update was extremely timely, as it marked the one-year anniversary of the first recorded death from COVID in Canada.  We were very pleased to welcome back Eric Ito, a Lawyer with Cooperwilliams Law in Vancouver to share insight on the lessons learned and how Employers might best prepare for certain risks as we move forward in 2021.  We were grateful to have Eric’s insight early on in the pandemic allowing us to make sure we adopted proper protocols and safety measures.  In the Fall, he re-visited with our Manufacturers and we focused on other aspects that were beginning to surface from the pandemic at that time.

Now, with one year officially behind us, this very legal update provided us with an opportunity to appreciate where we have been and where we are going – and the best place to start was with Lessons Learned.  Supplementing this we focused on Bonus Plans and Adverse Impact Discrimination through two Supreme Court of Canada Case Studies.  Eric finished with a brief recap on Government Aid Programs as well.  Some highlights from his presentation follow below:

COVID-19 Lessons for Employers

#1 – Temporary Layoffs

  • As a result of the narrowness of the law regarding temporary layoffs, there is the possibility of lingering claims for employers because of constructive dismissal
  • It is important to update your employment agreements to include express provisions permitting for temporary layoffs
  • Since it is possible for even those who have returned to work to have a claim for lost wages, conduct a liability assessment to determine whether and to what extent there may be such claims
  • This will allow employers to respond to unexpected, temporary declines in business without incurring the legal risk of constructive dismissal

#2 – Get Employment Agreements in Order

  • Properly drafted termination provisions will provide certainty and considerable cost savings
  • Now is a good time to review the content of your Agreements and make sure they have valid enforceable provisions
  • Leave the definition of “just cause” for your Employment Policies only

#3 – Pay Closer Attention to Mental Health

  • Eric reviewed the concepts of mental health, the workplace and the law sharing some very insightful statistics.
  • The pandemic has taken a significant toll on mental health
  • The past year has highlighted a large increase in cases of employee discrimination claims based on mental health disorders, failures to inquire, and insufficient accommodation
  • Employers should be aware, and supervisors trained, of the duties to inquire and accommodate.
  • Employers should take a concerted, proactive approach to helping employee mental health including:
    • Training supervisory staff
    • Developing or improving Employee Assistance Programs
    • Developing or improving accommodation policies
    • Employee Assistance Programs
    • Supporting employee participation and decision making
    • Defining employee’s duties and responsibilities
    • Promoting work-life balance
    • Managing workloads
    • Have conflict resolution practices in place (investigation and resolution)
  • Resources were also provided for the Canadian Mental Health Association and Employment and Social Development Canada
  • Mental health is really starting to sky rocket – Employers need to do the right thing to minimize risks – it can be a huge cost for business and needs to be addressed

Canadian Mental Health Association (CMHA)

Employment and Social Development Canada

#4 – Develop a Remote Work Policy

  • Remote work is here to stay in one way or another
  • There are a host of potential issues that have developed during the past year as a result of working from home including:
    • Confidential and intellectual property security
    • Occupational health and safety issues (home is part of this aspect)
    • Positive and negative impacts on mental health
    • Overtime liability (harder to control as there is no Supervisor)
    • Equipment issues
    • There needs to be a developed and clearly communicated remote work policy to mitigate risks before they arise including confidential data protection, workplace safety, mental health promotion and sustainable work practices, etc.

Bonus Programs and Policy Discrimination:

Following up from the Lessons Learned over the course of the pandemic, our Guest Speaker then turned attention to Bonus Programs and Policy Discrimination reviewing two big cases from the Supreme Court of Canada – Matthews v Ocean Nutrition Canada Inc. (bonus and incentive programs) and Fraser v. Attorney-General of Canada (stepping forward in the concept of systemic discrimination).

A poll was provided for participants asking who currently have performance or retention-based incentives.  Just over half of the respondents currently have something in place.  A small percentage were in the middle – thinking about implementing something - and the remainder did not have a program.

Current Federal Aid Programs:

Eric completed his presentation with a brief recap on current Federal Aid Programs for business including:

For Businesses:

  • Canada Emergency Wage Subsidy (CEWS)
  • Temporary Wage Subsidy (TWS)
  • Canada Emergency Rent Subsidy (CERS)
  • Canada Emergency Business Account (CEBA)

For Employees:

  • Canada Recovery Benefit (CRB)
  • Canada Recovery Sickness Benefit (CRSB)
  • Canada Recovery Caregiver Benefit (CRCB)
  • BC Recovery Benefit

There were lots of questions that followed Eric’s very informative presentation touching on the concept of mandatory vaccinations, working from home responsibilities, policy language and so forth.

If you should have any questions regarding our session and the discussion that followed, we can certainly share the presentation and there is a recording available as well.  Eric too would be happy to assist and I have added his contact information below:

Cooperwilliams Law, Vancouver
Eric Ito, Lawyer
Telephone - 236 317 4152

It has definitely been a year of change and adaption and no doubt the lessons learned to date will continue to grow as we move forward away from the pandemic – all helping us to have much stronger, enforceable Agreements and Policies in place to the benefit of both Business and their Employees!

On behalf of EMC Members and Guests, special thanks to our Guest Speaker, Eric Ito with Cooperwilliams Law for such an insightful and valuable presentation!

All the best as always!

Bren de Leeuw

Western Canada Operations and
Vice President – Community Partnerships & Stakeholder Relations
Excellence In Manufacturing Consortium - - 519-372-6009