Many workers have had their vacation plans put on hold by the COVID-19 pandemic, but still have vacation time to use. Here are the answers to some of the most frequently asked questions about taking vacations with pay.

How much vacation does my employer have to give me?

Your employment contract and any applicable employer policies may outline your vacation entitlements. If you’re a unionized worker, check your collective agreement.

In Ontario, the Employment Standards Act sets the bare minimum terms and conditions of employment for most workers. It guarantees an employee who has worked for an employer for less than five years at least two weeks of paid vacation after each year of employment. An employee who has worked for an employer for more than five years is guaranteed at least three weeks of paid vacation a year. These are minimums. An employer may provide more vacation to its employees, and some employees, including those represented by a trade union, may be able to negotiate greater vacation entitlements.

Some Ontario workers are exempt from this and other parts of the Employment Standards Act. The list includes lawyers, registered massage therapists and commissioned salespersons as well as workers employed in commercial fishing and on most farms. If you are one of these workers, your vacation entitlement is subject only to negotiation with the employer.

Other Ontario workers are employed by federally regulated employers such as banks, telecommunications companies and First Nations band councils. For these workers, the Canada Labour Code guarantees similar entitlements as the Ontario legislation, except that the federal legislation additionally entitles employees with 10 or more years of service to at least four weeks of vacation with pay.

What if I’ve been on leave because of COVID-19?

Some workers are eligible for infectious disease emergency leave under the Employment Standards Act or leave related to COVID-19 under Canada Labour Code as a result of the coronavirus pandemic. Workers can postpone their vacations until after the end of this leave, even if they were required to have taken it within the duration of the leave.

Is it the same for other types of leaves, too?

Yes. The Employment Standards Act entitles employees to various unpaid leaves of absence like pregnancy and parental leave, family responsibility leave and sick leave. Federally regulated employees are guaranteed similar entitlements under the Canada Labour Code, in addition to leave that enables Métis, Inuit and First Nations workers to engage traditional practices including hunting, fishing and harvesting.

Workers can defer their vacation during any such leaves. An employer cannot force employees to take vacation instead of any other leave entitlements.

I’m working from home. Can I wait until my office reopens to schedule vacation?

That may be up to your employer. An employer has the right to determine when any of its employees take vacation, unless an employee’s contract of employment or collective agreement says otherwise.

The only limit on this discretion is that employer’s must allow employees to take their vacation within ten months after the year in which it was earned.

You also cannot be forced to split up your vacation. An employer has to assign vacation in a single period of at least one week, under the Employment Standards Act, unless the employee agrees otherwise. The Canada Labour Code requires employer to approve vacation in a single period unless the employee asks to take it in more than one period.

If work has slowed down because of the coronavirus, employers may want employees to use up vacation while lockdown measures are in place. That said, an employer will typically attempt to agree with their employees when their vacation will be scheduled. In unionized workplaces, vacation may be scheduled on the basis of seniority.

What if I travel for vacation this summer?

You may want to stick close to home due to the COVID-19 public health precautions, even if lockdown restrictions are easing up in some places. The Ontario government is still advising residents to stay at home as much as possible and practice physical distancing to limit the spread of COVID-19. Anyone who may have been exposed to COVID-19 is advised to get tested and self-isolate for at least 14 days. The federal government is advising that we avoid all non-essential travel outside of Canada. It is presently mandatory for all travellers entering Canada to isolate or quarantine themselves for 14 days to limit the spread of COVD-19.

 If I don’t use it, can I lose it?

Your employment contract may limit the amount of vacation with pay you can carry over from one year to the next. If that is the case, then you may be required to forfeit any unused vacation entitlements beyond the minimum guarantees in the Employment Standards Act or Canada Labour Code. An employer can never deprive employees of these minimum statutory entitlements.

When do I get my vacation pay?

Vacation pay is due at the start of your vacation or the next regular pay day, although in some cases Ontario employers will pay their employees the vacation pay that has accrued in each pay period. Workers entitled to two weeks’ vacation must receive vacation pay of at least 4% of their gross wages in the prior year. Workers entitled to three weeks’ vacation must receive at least 6% of their gross wages in the prior year. Federally regulated employees entitled to four weeks of vacation with pay must receive at least 8% of their gross wages in the prior year.

If I don’t take vacation, do I still get vacation pay?

 Vacation pay accrues on wages earned as soon as you start working. The employer holds onto it until you take vacation. You can agree to forego vacation, if the Director of Employment Standards approves, but your employer cannot forego paying your vacation pay. But, really, you should take your vacation.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

The COVID-19 pandemic gave most Canadians a renewed understanding and appreciation for the essential, life-saving work performed by healthcare professionals. However, early on in the crisis, this appreciation felt empty to many workers who were being denied access to adequate personal protective equipment (PPE) and other measures to protect themselves and their patients.

One particularly stark example led the Ontario Superior Court to take the very rare step of intervening in the midst of a labour dispute, and ordering a group of employers to ensure that nurses had access to adequate PPE and other protective measures.

Background

At the height of the spread of the coronavirus in Canada, the Ontario Nurses Association presented grievances against four employers operating long-term care homes. The union maintained that these employers had violated the Collective Agreements, as well as health and safety legislation and public health directives, by withholding PPE from nurses and failing to implement necessary controls to prevent the spread of COVID-19 among residents and staff.

Because of the length of time it would take for those grievances to reach arbitration, the union also applied for an injunction in the Ontario Superior Court, seeking urgent relief while the grievances remained pending. The union asked for an Order that the employers allow nurses to make PPE decisions on an ongoing basis at the point of care, and that they isolate and cohort residents and the staff attending to them so that those who were infectious were kept separate from and treated by different nurses than those who were not. The Court heard the injunction request on April 22, and released its decision the following day.

Injunction decision

The Court’s decision paints a very grim picture of what was occurring in the long-term care homes. All four had experienced COVID-19 outbreaks, with over a hundred residents infected and more than fifty deaths. At least seven nurses had also contracted COVID-19, with one requiring hospitalization.

Despite this dire situation, the evidence before the Court was that nurses were being denied access to PPE, including N95 masks, on the grounds that they were scarce and needed to be conserved. This was clearly contrary to public health directives, which stated that, if a health care worker determines at point of care that N95 masks are necessary, they must be provided. The homes were also not isolating and cohorting infected residents and were allowing infected and non-infected residents to be cared for by the same nurses.

At the injunction hearing, the employers conceded that two of the three elements of the test for an injunction were satisfied—there was a serious issue to be tried in the underlying grievances, and there was a risk of irreparable harm if an injunction was not granted. They argued, however, that the balance of convenience favoured dismissing the application, because the risk to the nurses had to be balanced against the risks to all other staff and residents. The employers essentially argued that the nurses were trying to secure PPE for themselves to protect their own self-interest, at the expense of others.

The Court was unimpressed, to say the least, with this argument:

“I can imagine that the irony of that submission is not lost on the Applicants. One need only read the affidavits of the individual nurses in this Application record to understand that they spend their working days, in particular during the current emergency situation, sacrificing their personal interests to those of the people under their care. And given the nature of the pandemic, they do this not only for the immediate benefit of their patients but for the benefit of society at large. To suggest that their quest for the masks, protective gear, and cohorting that they view as crucial to the lives and health of themselves and their patients represents a narrow, private interest seems to sorely miss the mark.”

The Court concluded: “Where the lives of nurses and patients are placed at risk, the balance of convenience favours those measures that give primacy to the health and safety of medical personnel and those that they treat.” The Court ordered that the employers comply with the public health directives, including providing nurses with access to fitted N95 facial respirators and other appropriate PPE when assessed by a nurse at point of care to be appropriate and required.

Extraordinary measures for extraordinary times

An injunction is a very unusual legal remedy, and the injunction in this case was particularly unusual. The fact that the Court felt compelled to intervene in the middle of a labour dispute—something it is generally reluctant to do—and order the employers to take active steps to protect staff and residents is a reflection of what exceptional times were are currently living in.

It is also a testament to the seriousness of COVID-19 and the importance of frontline workers during the unprecedented crisis that virus has caused. On that topic, two important points are worth noting.

First, the nurses who sought this injunction, as well as other public sector workers in Ontario, are all currently subject to Bill 124, legislation that caps increases to pay and benefits to a total of 1% per year for a period of three years. The Ontario government has disingenuously claimed it is unable to intervene and override this cap. However, in addition to obviously having the power to repeal the legislation, Bill 124 authorizes the government to exempt any collective agreement from the cap. Given the consensus that healthcare workers are nothing short of heroes in the current context, the government should clearly grant exemptions and allow these workers to be paid what they deserve.

Second, the Ontario government recently announced that it will allow agricultural workers to continue working even if they test positive for COVID-19, provided they are asymptomatic. Like the situation the nurses faced in these long-term care homes, this decision appears to be clearly guided by societal, economic considerations, rather than the best interests of the workers. The agricultural workers and their advocates may want to explore whether similar extraordinary legal action is appropriate to protect themselves, and the Ontario government should heed the lesson from the Court’s decision in the ONA case—the broader public good cannot come at the expense of the health and safety of workers.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

That doesn’t seem like a shocking proposition, but Uber fought up to the Supreme Court of Canada to argue Canadian courts had no jurisdiction to determine whether it had acted improperly. The Supreme Court of Canada said Uber was wrong. Now a major class action on behalf of drivers can go ahead.

Uber thought it had covered itself when it required drivers to agree that they had to make any claims by going to an arbitration in Europe, leaving them with no access to justice through Canadian courts. A strong majority decision of the Supreme Court of Canada rejected that argument and said the clause was unenforceable.

It said that the clause was unconscionable.

The Court held that the idea of going to arbitration, rather than the courts, is acceptable when it is freely negotiated between the parties.  Where unfair bargains are linked to unfair bargaining, however, the courts can protect vulnerable people in the agreements they are given to sign. The courts will look to whether one party to a deal was unable to protect their interests when the person agreed to the terms. The Supreme Court also said Canadian courts can intervene where one party is disadvantaged by terms they did not understand or appreciate. Not every standard contract can be ignored by the courts, but when they are hard to understand and lopsidedly in favour of one party, there is a good chance that some of their terms can’t be enforced.

In the Uber case, a driver would have been required to pay an up-front US$14,500 administration fee just to start the arbitration process.  For the driver in question, that was a sizeable percentage of the amount he earned in a year.  He would have to use the law of the Netherlands and was left with the impression he would have to go to Amsterdam to argue his case.  The Court found that the arbitration clause made any of the driver’s rights unenforceable in the real world.

As a result, the Court said Uber drivers can make their claims in Canadian courts. A proposed $400M claim involving the misclassification of Uber drivers can finally now proceed.

Ravenlaw gratefully acknowledges the contribution of this post by summer student Emily McBain-Ashfield.

Asked to work but feeling ill? Your job is protected

As some regions in Ontario enter Phase 2 of re-opening, more people will be asked to return to work. If you are one of those people being asked to return to work, you may be wondering: what will happen to my job if I feel sick, but do not have any sick days?

Even without sick days, your employer cannot fire you for taking a leave due to COVID-19 related symptoms. You do not have to choose between following public health guidelines when you feel ill and keeping your job.

COVID-19 Related Emergency Leave Without Pay

Whether you work in a provincially or federally regulated industry, workers in Ontario have access to job-protected COVID-19 related leave.

Under the Employment Standards Act, 2000 (ESA), provincially regulated workers can take leave without pay if they are isolating because they have, or are suspected to have, COVID-19. Furthermore, employees can use this leave to care for others with suspected or confirmed COVID-19. Once you return to work, your employer must reinstate you to the same position with the same pay as before you took leave.

You do not need to provide a medical certificate to take COVID-19 related leave under the ESA. However, your employer can require evidence that you qualify for leave, as long as the request is reasonable in the circumstances and at the time of the leave. For example, as testing in Ontario becomes more accessible, asking for evidence of COVID-19 testing may become more reasonable.

Federally regulated employees also have job protected leave for up to 16 weeks under the Canada Labour Code (CLC) if they cannot work because of COVID-19. You must notify your employer as soon as possible about the leave, including the expected length of leave. You do not need a medical certificate to take COVID-19 related leave under the CLC.

Your job is further protected under the Human Rights Code

Disability is a protected ground under the Human Rights Code and your employer cannot discriminate against you because of a disability. The Ontario Human Rights Commission considers COVID-19 status as a protected ground under disability.  This means is you cannot be fired because of your COVID-19 status, up to the point of undue hardship on your employer. In addition, the need to care for ill family members engages the protected ground of family status. So, you cannot be fired for taking leave to care for a family member. Unless your employer can demonstrate that accommodating you causes undue hardship, your employer must accommodate you by either providing leave or an alternative working arrangement.

How will I afford unpaid leave?

Currently, your employer does not have to pay for sick or COVID-19 related leave. The Federal Government recently announced they are discussing with provinces the possibility of giving workers 10 paid sick days. However, access to 10 paid sick days is not going to happen overnight, and each province may respond differently.

If you need to take a COVID-19 related leave you have some options to receive support. You may be eligible to apply for the Canada Emergency Response Benefit or EI Sickness Benefits.

We are here to help you navigate workplace issues. Consult one of our experienced lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are facing difficulty in your workplace due to taking COVID-19 leave.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

News publications have officially declared the “death of the office”, as most of us adjust to the realities of working from home. While working from home, often referred to as telework or telecommuting, had been steadily increasing in recent years, the amount of people working from home has obviously exploded in response to the COVID-19 pandemic. With unprecedented numbers of employees working from somewhere other than their employer’s physical premises, an important question arises: if you are injured while working at home, is that injury covered by workers’ compensation?

Surprisingly, given how common telework has become, the Ontario Workplace Safety and Insurance Board has not published a formal policy addressing injuries that arise while working at home. However, WSIB’s general law and policy, as well as its few cases adjudicating claims for telework injuries, confirm that an injury sustained while working at home will be treated like any other injury—all the circumstances will be considered to determine if the injury is work-related.

Ontario’s workers’ compensation legislation, the Workplace Safety and Insurance Act, only allows for compensation for accidents that occur on an employer’s premises. However, that term is defined very broadly, as “ the building, plant, or location in which the worker is entitled to be…” To be eligible for compensation, an accident must also have occurred while the worker was performing an act incidental to her work or employment obligations.

The Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) has adjudicated very few claims for injuries sustained during telework. However, in the few cases it has decided, it has effectively taken for granted that a telework injury is not excluded from the workers’ compensation regime.

The WSIAT has granted compensation to workers who were injured in their home offices. For example, in 2019 ONWSIAT 1873, a customer service worker performed her job in her home office and developed carpal tunnel syndrome due to an increased workload. The WSIAT found that the claim had the necessary five points to be eligible for compensation: “an employer, a worker, personal work-related injury, proof of accident, and compatibility of diagnosis to accident history.”

This is similar to the approach taken by workers’ compensation boards in other jurisdictions. Some, like WorkSafeNB in New Brunswick, and the Workers’ Compensation Board – Alberta, have published policies or fact sheets specifically addressing when a telework injury will be considered eligible for benefits.

While telework injuries clearly can be eligible for workers’ compensation, the fact that your injury occurred while working from home may, in some cases, make it more difficult to establish that the injury is work-related. There are a wide variety of situations that are on the borderline between work and personal activities. That line between your work and personal life is likely even harder to define when you are working at home.

The Workers Compensation Appeals Tribunal of British Columbia commented on this difficulty in a 2010 decision:

…work activities and home life do not always occur in a clearly defined and distinct sequence.  It might be that a worker is at one moment in the course of employment while in the home office, but at another moment in the role of homeowner when responding to a neighbor knocking at the front door.  It is where an injury occurs in the transition between work life and personal life that coverage under the Act may be at its most complex.

So, while the fact that your injury occurred while working from home does not, in itself, disqualify you from workers’ compensation coverage, you may face added challenges in your claim, particularly if the injury occurred somewhere in that “transition” between your work life and your personal life. If you have such a borderline claim, you may want to receive advice and assistance from an employment lawyer.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without an assessment of your individual circumstances.]

With the COVID-19 outbreak, circumstances are changing by the hour. These are unsettling times and there is uncertainty for employees, employers and unions alike. What is important is that all have to be committed to the health, safety, and well-being of both workers and management.

Many workplaces are issuing a work from home policy to avoid the spread of COVID-19. You may be able to continue to perform work through alternate arrangements (work from home, shifting work hours, heightened safety measures). Employers will be required to take reasonable steps, to the point of undue hardship, to accommodate employees required to stay home because they are ill, caring for someone who is ill, or caring for children.

However, this is only an option if you are able to work productively from home or through alternate arrangements. Some workplaces have work where it is not possible to work remotely or to shift the working hours. This, combined with the decreased demand in some industries, means that employers are closing or laying off employees, and it can be difficult to know your entitlements.

Can I Be Laid Off or Fired?

You cannot be laid off or fired for having COVID-19. But while the government has not said that people shouldn’t go to work, some businesses are being forced to close (either by the government due to their industry or due to lack of customers).

If your employer must shut down its business, they should notify you when they start work again. As the Ontario government has stated, nobody will be penalized for complying with government mandated emergency measures.

Whether or not you can be laid off, and your entitlements if you are laid off, depend on a variety of factors:

1. Are you unionized?

a. If the answer is yes, contact your union. Your entitlements will likely be governed by your collective agreement.
b. If the answer is no, go to number 2.

2. Do you have an employment contract?

a. If the answer is no, go to number 5.
b. If the answer is yes, check if the contract has a clause about temporary lay offs where it specifically allows the employer to lay you off temporarily and recall you (this is different than a termination provision that talks about your entitlements when the employment ends):

i. If the answer is no, go to number 5.
ii. If the answer is yes, read it. Check if it complies with the temporary layoff provisions of the legislation that apply to you.
For provincial employees, see number 3.
For federal employees, see number 4.
If the provision complies with the legislation, then it will govern your temporary lay off.
If the provision does not comply with the legislation, go to number 5.

3. Under the Employment Standards Act, 2000, for provincial employees there are temporary layoff provisions at s. 56. If your contract allows for temporary layoffs, the contract must comply with the provision in the legislation:

a. It cannot be more than 13 weeks in any 20-week period.
b. If it is more than 13 weeks in a 20-week period, then it may still be a temporary lay off if it is not more than 35 weeks in a 52-week period and:

Pension and/or benefits were continued;
i. The employee was still being paid;
ii. The employee worked somewhere else during that time;
iii. The employer recalled the employee during that time;
iv. The employer recalled the employee within the time set out in an agreement between the employer and employee; or
v. The employee received supplementary unemployment benefits.

Even if the provision in your contract is valid, if your temporary layoff exceeds the timelines set out in the legislation, you may be entitled to notice, or pay in lieu of notice.

4. The Canada Labour Code for federal employees dictates that a layoff is not a termination of employment so long as:

a. The layoff is less than 3 months;
b. The layoff is more than 3 months and less than 12 months and the employee has recall rights under a collective agreement;
c. The layoff is more than 3 months and:

i. The employee is still being paid;
ii. The employer continues to pay into the employee’s pension;
iii. The employee received supplementary unemployment benefits;
iv. The employee would be entitled to supplementary unemployment benefits but is disqualified; or
v. The employee is given a fixed date of recall at the time of layoff, that date is within six months of the layoff, and the employee is actually recalled on that date.

Under the Code, any periods of re-employment that are less than two weeks in duration are not included in calculating the length of the layoff.

Even if the provision in your contract is valid, if your temporary layoff exceeds the timelines set out in the legislation, you may be entitled to notice, or pay in lieu of notice.

5. If you do not have an employment contract, or the contract does not have a temporary lay off provision and temporary lay offs are not an industry norm, or if the temporary layoff provision in your contract does not comply with the legislation, then your employment regarding temporary lay off is governed by the common law. At common law, there is no right for the employer to “temporarily” lay you off. Therefore, if you are laid off by your employer, this may be a constructive dismissal and you may be entitled to notice, or pay in lieu of notice.

The amount of notice will depend on a number of factors (including if your employment contract has a termination provision laying out your entitlements when your employment ends).

It should be noted that in these uncertain times, courts and tribunals may deal with layoffs and terminations differently. While this is the current state of the common law, it is hard to know how courts will proceed.

What Happens if I Cannot Work?

You should inform your employer immediately if you are not able to work for any of the following reasons:

• You are taking care of children or an elderly at risk person.
• You have symptoms of coronavirus.
• You have been in contact with someone who has the symptoms of corona virus.
• You have returned from another country.

No disciplinary measures should be taken if an employee cannot come to work, as was outlined by the Government of Ontario in a statement on Monday.

However, an employer is not obligated to pay you if you are self-isolating or not working. If you are able to continue to work through alternate arrangements, your employer must continue to pay you. As noted above, employers will be required to take reasonable steps, to the point of undue hardship, to accommodate employees required to stay home because they are ill, caring for someone who is ill, or caring for children. This can include working remotely or working alternate hours. The alternate arrangement does require that the employee is engaging in productive work. It is only if there are truly no alternate options available that an employer can stop paying the employee.

If no alternate arrangements can be made, employees should try to access sick days or other types of leave. Employees may also want to make inquiries into the short-term disability plan, if they are covered by one through their employer. Employers are being asked to not insist on a doctor’s note, in order to avoid overloading the already extremely busy health care system. 

How do I Apply for EI?

If an employee is not covered by a short-term disability plan at work, they can apply for sick-leave through Employment Insurance (“EI”). For up to 15 weeks, EI benefits will pay up to 55% of your weekly salary, to a maximum of $537 per week. The Government is working to expand EI benefits to cover those affected by the COVID-19 pandemic. You will qualify for EI if:

• You pay EI premiums (usually a deduction made by your employer) or you are self-employed and have opted into EI;
• You have lost at least 40% of your usual weekly pay; and
• You worked at least 600 hours in the 12 months prior to the claim.

A medical certificate is normally required to access EI sick-leave benefits. The government has waived this requirement for those ordered to go into quarantine by law or a health official. The requirement for a note for other applicants is still up in the air, as the Government continues to adjust the system to adapt to the changing circumstances.

There is also usually a waiting period (one week) after an EI application, but that one week waiting period is currently being waived.

Conclusion

If you can, you should speak to an employment lawyer to understand your rights during a lay-off or termination, as your entitlements will be very fact-specific to your circumstances. This is always true, and in these uncertain times courts and tribunals may deal with layoffs and terminations differently.

It is important to keep up to date with federal, provincial, and municipal government instructions on how to act during this COVID-19 state of emergency. Federal and provincial governments are issuing updates daily – sometimes several times a day.

Unions and coronavirus. Some may wonder what the connection could be between these two words.

The connection is not so strange as you might think. Unions have worked for a century or more to improve terms and conditions of employment. That has included championing sick and disability leave benefits. When quarantine was a more common practice, unions negotiated pay maintenance provisions for people who were quarantined. Unions themselves are also employers whose employees get sick from time to time. The list goes on.

At a time when the extent, seriousness and consequences of the current coronavirus outbreak are not yet fully known, it is important for unions to turn their minds to the problems potentially caused by the virus and its spread and what measures to take to make sure employees are protected.

For some time, unions have been trying to help employers understand the pitfalls of presenteeism. That’s the phenomenon where someone attends work because they can’t afford to miss a day’s pay, because they are afraid of the consequences when they take time off work during a probationary period, or they misread the employer’s signals about loyalty and dragging yourself into work when you just don’t feel up to it.

The goal for unions is to protect the employee from wage loss if they become ill or are required to care for a family worker. It is also to protect co-workers from infection. The reason employers should listen is that it is a classic case where the benefits mentioned above may also prevent significant losses to the employer’s operation.

Unions should speak with employers to deal with issues raised by COVID-19. Those discussions should be happening now.

The following is a preliminary checklist for that discussion:

• If the employer can’t be persuaded to make permanent changes to sick leave or other benefits, discuss having a temporary protocol that expires on a fixed date or event.
• One of the goals of the protocol should be to provide an incentive to employees with symptoms of influenza not to come to work.
• Discuss what medical information is required and at what stage. Who will pay for any medical certificates?
• If the collective agreement does not provide for benefits during a quarantine, then discuss what happens in the case of an employee who cannot report to work during quarantine.
• What measures are available to allow the person to work from home? What salary maintenance is available?
• What if the person is required to care for a person who is diagnosed with the virus? There are statutory rights to some days with pay in many jurisdictions, but none of them would provide enough available paid days for a virus to run its course. That is even more true if the caregiver becomes the patient at some point.
• These issues may present both health and safety issues and worker’s compensation issues in the workplace. An employer that deals inappropriately with the problem may find that there are consequences that go beyond the losses that go along with an infected workforce.
• If an employer is not responsive to any of the above, the issues may be raised in a health and safety committee.
• Does the protocol have to say that it is in addition to any provisions of the collective agreement?
• The employer should be explicit and clear about expectations for employees who have or are concerned they have symptoms of influenza. They should do so even if they believe there may be some individuals who may err on the side of staying home.
• There have been concerns about comments about people appearing to come from countries where there have been outbreaks. It is important to reinforce the importance of human rights in every workplace.

Most employers do some level of emergency preparedness planning. It just makes good sense. Planning is something you do before there is a problem.

It may be that there are no serious problems in the majority of workplaces. On the other hand, it is easy to see that, if there is a more serious problem, it will likely be too late to get appropriate measures in place.

Anyone tried to buy an N-95 mask recently?

In Walker v Canada (Attorney General), the Federal Court of Appeal set aside a decision of the Federal Public Sector Labour Relations and Employment Board upholding the dismissal of a longer-service and discipline-free public service employee because the Board decision-maker failed to consider whether the employee’s state of mind mitigated her alleged misconduct.

The employee’s union, the Public Service Alliance of Canada, argued that “many of the actions for which [the employee] was disciplined were motivated by a desire to protect herself and other employees from threatening and possibly dangerous acts of her subordinate” whom she genuinely feared.

It is well-established, the Federal Court of Appeal concluded, that a labour adjudicator’s inquiry into the appropriate penalty for alleged misconduct “requires review of all the relevant surrounding circumstances, including mitigating factor’s such as the employee’s state of mind, which has a direct bearing on culpability.” Yet, the decision-maker in this case not only failed to address this issue but went so far as to state, on a related issue, that it was “not my role to determine whether … [the employee] had a legitimate fear for her safety.”

This judicial review decision represents one of the first times where the Federal Court of Appeal has applied the Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov. Vavilov instructed that an administrative decision-maker’s failure to address fundamental arguments raised before it may result in the decision being unreasonable due to a lack of transparency and intelligibility.

As the employee’s fear of her co-worker was central to her defence, the Court of Appeal found that it was directly relevant to the issues the decision-maker was required to determine and could have changed the outcome of the case. The Court of Appeal concluded that the Board decision-maker’s “failure to consider whether such fear constituted a mitigating factor renders it decision … unreasonable as it is impossible to discern from the decision what weight would have been attributed to this factor by the Board, had it considered it.”

The Federal Court of Appeal returned the matter to a different Board decision-maker for redetermination.

Andrew Raven and Michael Fisher appeared for the Applicant.

On March 5, 2020, Anna Lichty and Megan Fultz represented Ravenlaw at the 2020 uOttawa Career Day at the Ottawa Conference and Event Centre.

Anna and Megan hosted four Community & Public Lawyering Roundtables, conducted a series of mock interviews with students interested in labour and employment law, and had the opportunity to meet and discuss our firm’s work with many first and second-year law students at a networking lunch. Thank you to the organizers for putting on this great event, and thank you to the uOttawa students for your engagement and enthusiasm!

If you’re a student looking for more information about the summer or articling experience at Ravenlaw, please contact us at studentrecruitment@ravenlaw.com.

On March 4, 2020, Morgan Rowe presented a workshop on human rights law, worker’s rights, and how these two sets of rights can be used to help individuals with disabilities challenge barriers in employment. The workshop was hosted by CUPE Local 2626.