Topic: North America

Speculation in Human Rights Claims – A Recent Decision

One of the challenging circumstances often facing an employer is having to make a tough decision (e.g. termination) with respect to an employee who is known to have a protected characteristic under human rights law. Whether the employee is elderly, has a disability, is gay, or has another protected characteristic, the concern is that the employee will allege that the decision was discriminatory. Even if the employer is comfortable that the protected ground was not a factor in the adverse decision, the threat or commencement of a complaint will add costs, time and stress.

Thankfully, the BC Human Rights Tribunal … Continue Reading

COVID-19 Safety Plans vs. Communicable Disease Plans: Have you Caught the Differences?

By Taryn Mackie and Alex Farrant on August 10, 2021 Posted in Canada, Coronavirus, North America

On July 1, 2021, British Columbia enthusiastically took the next step in its four-step COVID-19 Restart Plan. The transition to Step 3 brought several changes, including the transition for employers to move away from the previously required COVID-19 Safety Plan to the now required Communicable Disease Plan (“CDP”).

WorkSafeBC has published detailed guidance for employers on what is expected in a CDP, including a Communicable Disease Prevention: A Guide for Employers as well as new Guidelines for the Workers Compensation Act on communicable disease prevention at work.

Although many of the expectations for employers in a COVID-19 Safety Plan continue … Continue Reading

Retrait préventif : la COVID-19 ne constitue pas un contaminant au sens de la LSST

By Geneviève Lay (CA) and Megda Belkacemi on July 23, 2021 Posted in Canada, North America, Québec

Dans une affaire récente – Piché et Entreprises Y. Bouchard & Fils inc. – le Tribunal administratif du Travail (Tribunal) a rejeté la demande de retrait préventif d’un travailleur en vertu de l’article 32 de la Loi sur la santé et la sécurité du travail (LSST) car il considère que la COVID-19 ne constitue pas un contaminant au sens de la LSST.

Le contexte

Le travailleur est un technicien ambulancier paramédic atteint d’un psoriasis sévère en gouttes depuis 2015 pour lequel il reçoit des injections de Cosentyx, un agent immunomodulateur. En mars 2020, son médecin … Continue Reading

Ontario Moves to Step 3 of the Roadmap to Reopen on July 16

By Conrad Flaczyk on July 15, 2021 Posted in Canada, North America, Québec

On July 16, 2021, all regions in Ontario will move to Step 3 of the province’s Roadmap to Reopen, and the province will remain at Step 3 for at least 21 days. In this post, we analyze the legal instrument that will bring the Step 3 rules into force on July 16 and the implication of the new rules for Ontario businesses.

Key Legal Instruments

Reopening Ontario (A Flexible Response to COVID-19) Act

Ontario Regulation 364/20, Rules for Areas at Step 3

Key Take-Aways

Requirement to Work From Home “Except Where Necessary” is Relaxed

Unlike the rules for areas

Developing a Long-Term Remote Work Policy

By Margaret McConnell on July 5, 2021 Posted in Canada, North America

As restrictions related to COVID-19 continue to ease in British Columbia and employers are given the green light to return employees to the workplace, the ability to continue working remotely is top of mind for employers and employees alike. For those employers that wish to maintain some level of remote working, now is the time to begin developing a clear and comprehensive long-term remote work policy. While non-exhaustive, the following may serve as a starting point in terms of what to include:

Eligibility: a remote work policy should frame remote work as a privilege and include clear eligibility requirements

Ontario Divisional Court expands statutory severance pay threshold

By Salma Gilani on June 30, 2021 Posted in Canada, North America

In Hawkes v. Max Aicher (North America) Limited, the Ontario Divisional Court held that the calculation of an employer’s payroll for the purposes of determining its severance pay obligations under the Ontario Employment Standards Act, 2000 (ESA) must include its payroll outside of Ontario and Canada.

Background

The employee was employed by Max Aicher (North America) Limited (Aicher), a wholly owned subsidiary of Max Aicher GmbH & Co KG (MAG), which was headquartered in Germany. Following the termination of his employment, the employee filed a complaint with the Ministry of Labour alleging that … Continue Reading

La Fête nationale et la Fête du Canada : quelles obligations ont les employeurs?

By Geneviève Lay (CA) on June 18, 2021 Posted in Canada, North America, Québec

L’approche de la période estivale rime avec l’arrivée des vacances annuelles, mais aussi l’enchaînement de deux jours fériés en l’espace de 8 jours. La Fête nationale (le 24 juin – jour de la St-Jean Baptiste) et la Fête du Canada (le 1^er juillet) tombent cette année toutes les deux un jeudi.

Afin de dissiper les doutes que les employeurs de juridiction provinciale pourraient avoir, vous trouverez ci-dessous un survol des questions (avec réponses) les plus courantes.

Il est important de mentionner que les obligations découlant des lois sont le strict minimum à respecter. Les conventions collectives, contrats de travail … Continue Reading

US: New HERO Act Imposes Significant Obligations on New York Employers

By Rachel Kurth (US) on June 15, 2021 Posted in Coronavirus, North America, United States

New York State employers should be aware of a recent law aimed at protecting workers from COVID-19 and other airborne infectious diseases, the New York Health and Essential Rights Act (HERO Act), which imposes significant obligations on covered employers. Among other things, the HERO Act requires the New York State Department of Labor (NYSDOL) to develop industry-specific model safety standards, requires private New York State employers of all sizes to implement and distribute health and safety plans that meet specified requirements, and requires certain employers to permit the creation of joint employer-employee workplace health and safety committees.

Model Safety Standards

US: OSHA Issues COVID-19 Workplace Safety Rule

By Rachel Kurth (US) on June 10, 2021 Posted in Coronavirus, North America, United States

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued a mandatory workplace safety rule requiring employers to take specified steps to protect workers from COVID-19. However, the rule applies only to health care settings. Referred to as an emergency temporary standard (ETS), the rule exempts fully vaccinated workers from masking, distancing, and barrier requirements when in well-defined areas where there is no reasonable expectation that any person with suspected or confirmed COVID-19 will be present.

OSHA has also updated its Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace guidance for workplaces … Continue Reading

US: Labor Department Sets Occupational Safety & Health Meeting

By Kevin Mayer (US) on June 4, 2021 Posted in Coronavirus, North America, United States

The National Advisory Committee on Occupational Safety and Health will conduct a virtual meeting on June 22, 2021, to address current workplace issues and its prior work. The details are set forth in today’s U.S. Department of Labor announcement. The DOL and federal OSHA have been shifting priorities since the initiation of the Biden Administration, and are now focusing on enhanced workplace health and safety inspections and enforcement, notably including COVID-related worker protection issues. There has been talk of increasing the amount of monetary civil penalties and potentially triggering associated criminal indictments for particularly egregious employer misfeasance.… Continue Reading

US: Cal/OSHA publishes new standard that causes confusion for California employers

By Josh Henderson (US) and Kevin Mayer (US) on June 1, 2021 Posted in Coronavirus, North America, United States

On May 28, 2021, the employer community got its first glimpse of a revised Cal/OSHA emergency, temporary standard (ETS) for COVID-19 that may become law by June 15, 2021. That day—June 15—is significant because it is the date the governor set as a goal for California to “fully open its economy.” In addition, the CDC’s new guidance allowing fully vaccinated persons to go maskless in some settings was another encouraging sign that normalcy was just around the corner. Indeed, Cal/OSHA had promised to tweak the existing COVID-19 standard with these developments in mind. Instead, the revised standard simply whittles … Continue Reading

US: OSHA Notices HazCom Hearing

By Kevin Mayer (US) on May 20, 2021 Posted in General, North America, United States

We reported previously on federal OSHA’s efforts to revise and update various provisions of the Hazard Communication Standard in order to pursue greater workplace safety. On May 20, 2021, OSHA announced an informal public hearing commencing on September 21, 2021 for the purpose of entertaining stakeholder comments and recommendations. For more information, please see this Trade Release, or reach out to us with any questions.… Continue Reading

COVID-19 vaccination leaves : which provinces require employers to provide paid time off?

By Geneviève Lay (CA) and Conrad Flaczyk on May 20, 2021 Posted in Canada, North America

Vaccination efforts across the country have ramped up significantly. A number of provinces have recently amended existing legislation to allow employees paid time off to receive their COVID-19 vaccine. We provide you with a brief summary of these legislative amendments.

Province	Legislation	Paid Time Off	Other Relevant Information
British Columbia	s. 52.13 of the Employment Standards Act, R.S.B.C. 1996, c. 113	Up to three hours of paid leave for each request made for leave for the COVID-19 vaccine.	The employer can request reasonably sufficient proof that the employee is entitled to the leave. The employer must not request

New US federal OSHA pamphlet issued

By Kevin Mayer (US) on May 17, 2021 Posted in North America, United States

A new federal OSHA pamphlet has been issued.

The OSHA pamphlet, “PPE for Emergency Response and Recovery Workers,” provides guidance to employers on the proper selection and use of and training concerning personal protective equipment in responding to emergencies and other incidents requiring it.

Among other advice, OSHA reminds employers of the four levels (A – D) of PPE available.

If you are an employer and need guidance on US Occupational Safety and Health Administration regulations, please do not hesitate to reach out.

Our OSHA team

Our global health and safety law team provides clients with comprehensive legal advice on … Continue Reading

La réforme de la Loi 101 : avis aux employeurs

By Geneviève Lay (CA) and Sébastien Beauregard on May 14, 2021 Posted in North America

Le gouvernement du Québec a déposé hier son projet de loi 96 : Loi sur la langue officielle et commune du Québec, le français qui apporterait, si adopté, des modifications importantes à la Charte de la langue française (Charte) et à plusieurs autres lois.

Nous vous résumons les changements les plus significatifs pour les employeurs au Québec:

Communication et contrats de travail

L’employeur devra respecter le droit du travailleur d’exercer ses activités en français. Il devra donc s’assurer que les offres d’emplois ou de promotion sont diffusées en français et que les formulaires de demande d’emploi, les documents

Reform of Bill 101: Notice to Employers

By Geneviève Lay (CA) and Sébastien Beauregard on May 14, 2021 Posted in Canada, North America, Québec

Recently, the Quebec government tabled Bill No. 96, An Act respecting French, the official and common language of Québec (Bill) which, if adopted, will make sweeping changes to the Charter of the French language (Charter) and several other laws.

Here is a summary of the changes that will have the most impact on Quebec employers.

Communications and contracts of employment

Employers will be required to respect the rights of workers to carry on their activities in French. They will therefore need to ensure that offers of employment or promotion are published in French and that

US: DOL issues COBRA premium subsidy guidance and model notices

By Josh Owing (US) and Thomas Reddin (US) on May 12, 2021 Posted in North America, United States

The US Department of Labor recently published answers to frequently asked questions (FAQs) and model notices for the new COBRA premium subsidy made available to many employees and their dependents under the American Rescue Plan Act. As explained in an earlier post, the new law allows “assistance eligible individuals” (AEIs) – defined as COBRA qualified beneficiaries who had a qualifying event due to a reduction in hours or an involuntary termination of employment, and who elect coverage – to receive fully subsidized COBRA continuation coverage for periods covering April 1 through September 30, 2021. The new law also extends … Continue Reading

Employee’s receipt of CERB doesn’t change employer’s obligations

By John Schudlo on May 6, 2021 Posted in Canada, North America

The Ontario Superior Court recently held that a dismissed employee who received Canada Emergency Response Benefit (CERB) payments immediately following his dismissal should not receive less in wrongful dismissal damages on account of the fact he received the emergency benefit.

The decision underscores the point that CERB does not affect an employer’s post-termination obligations.

In Iriotakis v Peninsula Employment Services Limited, the Court ordered an employer to pay its former employee damages in lieu of three months’ reasonable notice.

The employee had been dismissed without cause in March of 2020. Shortly thereafter, he began receiving CERB.

The … Continue Reading

Télétravail obligatoire en contexte de pandémie : l’exception demeure les employés dont la présence est essentielle à la poursuite des activités de l’employeur

By Megda Belkacemi on May 6, 2021 Posted in Canada, North America, Québec

Dans une décision récente – Syndicat canadien de la fonction publique, section locale 1108 et CHU de Québec – Université Laval (grief syndical), 2021 QCTA 187 – l’arbitre Me Nathalie Faucher a rejeté la demande d’ordonnance de sauvegarde du Syndicat canadien de la fonction publique (le Syndicat) visant à forcer le CHU de Québec (l’Employeur) à se conformer à l’arrêté ministériel 2020-105 (l’Arrêté) afin que les salariés concernés puissent effectuer leurs tâches en télétravail.

Cette décision s’inscrit dans la même veine qu’une décision récente que l’on avait précédemment commentée laquelle concernait plutôt le … Continue Reading

DOL independent contractor rule withdrawn

By Rachel Kurth (US) on May 6, 2021 Posted in North America, United States

Trump-era independent contractor rule withdrawn

Effective today, May 6, 2021, the Department of Labor’s (DOL’s) Trump-era independent contractor rule has been officially withdrawn. The Trump-era independent contractor rule, which never went into effect due to the change between presidential administrations, would have made it easier for companies to classify workers as independent contractors.

Trump-era independent contractor rule

The Trump-era independent contractor rule expressly adopted and clarified the “economic realities test” for worker classification, and would have narrowed the focus of the inquiry to five distinct factors: (1) the nature and degree of the individual’s control over the work; (2) … Continue Reading

Ontario introduces paid COVID-19 sick leave

By Natasha Hyppolite and Conrad Flaczyk on April 30, 2021 Posted in Canada

On April 29, 2021, the Ontario government enacted Bill 284, COVID-19 Putting Workers First Act, 2021 (Act). The legislation amends the Employment Standards Act (ESA) to require employers to provide employees covered by the ESA with up to three paid days of sick leave for certain reasons relating to COVID-19. In this update, we review the scope of the new pay entitlement and corresponding obligations for employers.

What if employees were already entitled to paid leave under their employment contracts?

Employees who were already entitled to at least three paid leave days for certain reasons … Continue Reading

US: Mandatory COVID-19 vaccines and employer health and safety obligations

By Kevin Mayer (US) on April 29, 2021 Posted in Coronavirus, North America, United States

Federal OSHA has recently released guidance advising on employer health and safety obligations when employers require employees to receive the COVID-19 vaccination as a condition of employment. Specifically, OSHA addresses the potential (albeit rare to date) of an employee who incurs an adverse reaction to a mandated vaccination. In such a situation, the reaction will be deemed “work-related.”

The ultimate effect of this guidance is that if the adverse reaction involves days away from work, restricted work, transfer to another job or medical treatment beyond first aid, it will be considered a “recordable” incident. In other words, the reaction will … Continue Reading

US: Why a Mandatory Vaccination Policy May Not Restore Business as Usual for Companies

By Josh Henderson (US) on April 23, 2021 Posted in Coronavirus, North America, United States

Throughout the United States, employers are weighing whether to have a mandatory vaccination policy for COVID-19. The objective is to bring employees back to work safely and the understandable desire to return to our pre-pandemic status quo.

Mandatory vaccination policy

This post does not advocate in favor or against a mandatory vaccination policy—except to note there may be good reasons not to require it; the law requires accommodation from such a requirement in some circumstances; and there is no clear legal authority to compel employees as a condition of employment to receive a vaccine which has only FDA Emergency Use Authorization. Rather, it’s … Continue Reading

US: New York employers must provide paid time off for COVID-19 vaccinations

By Rachel Kurth (US) on April 1, 2021 Posted in Coronavirus, North America, United States

New COVID-19 vaccine paid time off requirement for New York employers

New York employers should be aware of a recently enacted New York State law that entitles employees to paid time off from work to receive COVID-19 vaccinations.

COVID-19 vaccine

Under this new law, New York employers must grant each employee a sufficient period of time, not to exceed four hours per vaccine injection, to take leave for purposes of obtaining a COVID-19 vaccine.

For employees who will receive a two-dose COVID-19 vaccine such as the Pfizer or Moderna vaccine, this means that such employees will be entitled to up to eight … Continue Reading