Ravenlaw gratefully acknowledges the contribution of this post by articling student Simcha Walfish.

Although we may live and work in “unprecedented” times, your rights to unionize your workplace have not changed. In several cases across the country, labour relations boards have rejected employers’ claims that the COVID-19 pandemic is no time to unionize. Even where it is unsafe to hold an in-person vote, the staff was laid off, or the employer is facing economic difficulties, boards have been clear that employees’ rights to collective bargaining are not on hold.

a) You can unionize even though it isn’t safe to hold an in-person certification vote

The Ontario Labour Relations Board has repeatedly ruled that the danger of in-person voting during the COVID-19 pandemic does not mean that certification votes should be delayed. In one case, the employer, a waste management company, argued that the Board should hold an in-person vote at its premises, over a single polling period of three hours. It claimed that its employees might not have the technology or skills to vote electronically. It suggested that if the Board was concerned about the safety of an in-person vote, the vote should be delayed until it is safe.

The Board rejected these arguments. While it found that an in-person vote would be unsafe and violate regulations, there was no reason not to hold an electronic vote because “employees have a right to determine whether or not they wish to be represented in their employment and to do so as soon as the electronic vote can be arranged.” Further, the electronic vote was not too difficult for employees to access and could be done by phone or computer.

In a similar case, the OLRB reasoned that delaying the vote until after the state of emergency is lifted could delay certification by months, “which would be prejudicial to the applicant and the affected employees.”

b) You may be able to unionize even though you and your coworkers were laid off

In a case from British Columbia, a theatre company argued that its employees could not unionize because it had laid them all off due to the pandemic.

The Board noted that, generally, employees who were laid off after an application can vote and those who were laid off before cannot. However, these are exceptional circumstances. The theatre had three categories of workers: regular full-time, regular part-time, and casual employees. The Board held that the test for whether employees who have been laid off can vote is whether they have a “sufficient continuing interest in the bargaining unit.”

The Board found that the regular full-time employees and regular part-time employees did have that connection and had not been laid off until after the application. Because of the timing of the layoff, they were eligible to vote.

Most of the regular part-time workers had been laid off before the application. Nonetheless, the Board found that they had a sufficient continuing interest in the bargaining unit. The Employer had emailed staff, committing to bringing as many people as possible back, as soon as possible. Although the Employer was not able to predict when it would reopen, it had not indicated that it would be ceasing operations. Because the closure was temporary, the Board found that “there is a continuing, tangible, felt relationship between the part-time employees and the Employer and a reasonable expectation of recall.”

However, the Board found that “the casual employees’ connection to the Employer was more tenuous.” They worked on an on-call basis and the Employer would only call them if their particular skill set would be useful for a production. They didn’t have the “reasonable expectation of recall” necessary to show that they had a sufficient continuing interest in the bargaining unit, and so were not eligible to vote.

Unfortunately for the employees, the fact that the casual employees were not eligible to vote meant that they didn’t have the support required to go forward with the application.

c) You can unionize even though your employer is experiencing economic uncertainty

In a case from the Alberta Labour Relations Board, an Employer in the not-for-profit childcare sector argued that the Board should not certify a bargaining agent during the COVID-19 pandemic due to the “business uncertainty” facing the Employer. It argued that unionization would increase its “administrative and financial burden” and set the collective bargaining process up to fail.

The Board soundly rejected this argument, finding no legal authority for the proposition that certification can be refused because of the employer’s economic circumstances. It rejected the Employer’s suggestion that we are in a “historically unique” situation. It found no precedent for refusing certification, despite the fact “the COVID-19 pandemic is not the first time in Alberta’s history when employers have faced significant, even existential, economic uncertainty.”

The Board noted that “the Code is clear: certification under the Code is an employee choice.” The Board concluded that, “put bluntly, the suggestion the Board should refuse to permit certification at times when an employer faces economic uncertainty is anathema to the purpose of the Code and its certification sections.” The Employer’s argument went against the basic principles of labour relations: “to ask why the Board would ‘bother’ with a certification in economic circumstances where that bargaining may be difficult takes a dim view of labour relations indeed.”

The Board reasoned that the Code creates a process for employees to freely select their bargaining agents in order to satisfy the constitutional requirements of “meaningful collective bargaining.” Nothing in the process asks whether the employer favours certification. It noted that while employers face difficult choices, so too do employees and “those uncertainties may well be a factor in employees making the choice, through the certification process, to pursue workplace goals through a bargaining agent at that time.”

In other words, while employers are facing difficult times, so are workers. And workers’ rights to unionize have not changed, even in these “unprecedented” times. Now, more than ever, may be a good time to unionize your workplace and face those uncertainties together.

On August 19, 2020, Morgan Rowe will present a seminar on returning to work during the COVID-19 pandemic. Morgan will discuss employees’ rights while returning to work, with a specific focus on the disability rights of employees and their family members.

The workshop is presented by Reach Canada. Reach provides educational programs and independent legal referral services that address the rights and interests of persons with disabilities

Pre-registration is required for this videoconference seminar. More information, including on how to register, may be found here.

Ravenlaw gratefully acknowledges the contribution of this post by articling student Claire Michela.

Regulated in Ontario since 1993, midwives are an overwhelmingly female-dominated profession represented by their Association of Midwives (AOM). Regulation was a proud moment for midwives, as it was a public recognition of their contributions to Ontario’s health care system. Recently, the Divisional Court found that the Ministry of Health (MOH)’s decision to raise the wages of midwives slowly, compared to other health care workers, amounts to systemic pay discrimination.

In 1993, the MOH and AOM worked together to develop funding principles to guide midwives’ future pay increases. Based on a third-party assessment, the AOM and MOH decided that doctors working in Community Health Centres (CHCs) had comparable levels of skill, effort, responsibility, and working conditions to Midwives, and the two groups should be paid on par.

But, starting in 2004, midwives’ wages were frozen and negotiations became strained. As similarly situated CHC doctors’ wages continued to increase, midwives’ pay was minimally increased for a number of years. As the pay gap broadened, the AOM filed a human rights complaint for gender discrimination in 2013.

In 2018, the Human Rights Tribunal of Ontario concluded that the MOH’s refusal to negotiate fair pay increases was discriminatory. This finding of discrimination meant that gender was a factor in midwives’ lower pay compared to similarly situated health care workers.

Despite the Tribunal’s decision, the MOH still could not agree on an appropriate amount to compensate midwives for years of discriminatory under-payment. The case returned to the Tribunal, which decided that the MOH must provide a 20% pay increase retroactive to 2011, human rights damages for those who signed on to the complaint, and interest to compensate midwives for lost time.

The MOH was unsatisfied and brought both Tribunal decisions to the Divisional Court for judicial review. At the Divisional Court, the MOH tried to argue that there was no pay discrimination because the midwives’ gender was not a factor in the MOH’s decision to pay midwives less than CHC doctors. However, the Court’s decision reminds the MOH that in human rights cases, intent to discriminate is never required.

The Divisional Court found the MOH’s arguments about why the Tribunal decisions were unreasonable to be “disingenuous” because they “fail to engage with the allegations of adverse gender impacts on midwives and ignore the systemic dimensions of the claim.”

Discrimination is systemic when the policies or practices of organizations result in an adverse impact for a protected group. In this case, the MOH’s pay policies were discriminatory toward midwives because their pay was raised remarkably slowly (an adverse impact) compared to similarly situated health care workers.

Systemic discrimination has been a topic of public debate recently, as the Black Lives Matter movement has gained traction around the world. The case of the pay of midwives in Ontario demonstrates how systemic discrimination is a subtle form of discrimination that can creep in over time and that it may be unintentional. However, as noted by the court, in human rights law, intention is not required for systemic discrimination to exist.

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

The implementation of physical distancing measures in the face of the global COVID-19 pandemic has raised a number of issues for workers with family obligations. Many workers are now being asked to work from home on a regular basis. At the same time, schools and childcare institutions have been closed and are only in the process of reopening, with the future success of these efforts remaining uncertain. Other workers face the need to care for sick family members, preventing them from fully meeting their work obligations.

Human Rights law, which has been found to provide certain protections to allow workers to balance their family and work obligations, can play an important role in navigating these issues.

How am I protected as a parent and an employee?

Human Rights law seeks to protect people from adverse consequences flowing from the fact that they exhibit one of the protected characteristics enumerated by the legislation. In this case, the protected characteristic is called “family status”.

The protection from discrimination on the basis of family status has been interpreted to protect people from adverse consequences in their employment flowing from their family care obligations. What is protected, however, may depend on whether your employer is federally or provincially regulated.

In Ontario, it is generally enough to show that the employer’s rule has a substantial negative effect on the parent/child or family care relationship and the responsibilities that attach to it. In assessing whether there a prima facie case of discrimination has been made out, the decision maker can look at the supports available to the claimant, but the claimant is not required to exhaust all options in attempting to self-accommodate.

Case law from the Human Rights Tribunal of Ontario provides a helpful foundation for parents juggling work and family obligations, including the obligation to assist their children with e-learning and other activities meant to replace school while schools are closed in response to COVID-19. Parents will be expected to make reasonable efforts to meet all of their obligations, but employers will also be expected to make reasonable concessions and allow for accommodations that will help parents to meet their obligations.

Employees who are federally regulated may have a more onerous test to meet. The Federal Court of Appeal has stated that an employer is only obligated to accommodate a family obligation when it arises from a “legal obligation”, as opposed to a “personal choice”. The implications of this requirement in the COVID-19 context remain to be seen, particularly given decisions from arbitrators and human rights tribunals, such as the arbitration award in SMS Equipment, indicating that additional requirements in the family status context are not appropriate.

A Recent Example

Arbitrator Jesin recently dealt with a COVID-19-related family status grievance. The grievor, who works in Sault-St. Marie and lives in Michigan, had a unique situation brought on by COVID-19. While he was not required to self-isolate for fourteen days after entering Canada due to an exemption in the regulations, the employer had a rule that required it, effectively making it impossible to both work and see his young children.

Arbitrator Jesin held that it was unreasonable for the employer to apply its policy without accommodating the grievor’s family status. He suggested that the employer adapt the policy to fit better with the grievor’s circumstances and that it might consider other precautions such as increased PPE or restricting him from going to COVID-19 “hot spots” in the US.

This decision is notable for the fact that it does not consider the issue of whether it was the grievor’s choice to maintain his custody arrangement or take up residence in Canada. The duty to accommodate was taken as a given. The decision is an example of Ontario arbitrators’ willingness to go straight to the question of accommodation where an employee has experienced adverse consequences as a result of a work rule and their family realities.

Addressing Family Status Concerns

If you are having difficulty keeping up with both work and childcare obligations, you can ask your employer to accommodate you. This may mean a later start time, more reduced hours, or other accommodation measures that may be necessary in the circumstances. If the employer refuses to provide any accommodation, though not necessarily the requested accommodation, it will have to show that not only does the requested accommodation would interfere with a bona fide occupational requirement and that it would experience undue hardship if forced to accommodate.

If you have any questions about these issues or your employer has refused to provide an accommodation it may be time to contact an employment lawyer or your union.

[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, its economic impact, and the recent protests regarding the systemic oppression of people of colour have all highlighted the need for robust protections for workers in Canada. As protests continue around the world, we must reflect on systemic racism in Canada. Throughout Canadian society, structural inequalities create vulnerability that manifests in precarious employment. Precarious employment has many definitions, but generally references employment that is uncertain, low paying, and with limited benefits and protections. If we hope to eliminate precarious employment, we need additional protections for workers.

Ontario Reduces Protections for Employees During the Pandemic

The early socio-demographic data in Ottawa shows that racialized groups and immigrants are over-represented in COVID-19 diagnoses compared to their relative population size. Diverse communities in Ottawa have rates of COVID-19 almost twice of those communities with the least diversity. Similar trends are being reported across the country. The economic effects of coronavirus are also being borne by precarious workers.

The existing legislation governing employment relationships in Canada does not prevent precarious employment. As a result, many employers rely on precarious employment as part of their business model. While there has been some progress in holding employers accountable, many businesses that form part of the ‘gig’ economy have exploited this model. We saw this recently with Foodora’s exit from Canada following an Ontario Labour Relations Board decision that would have allowed its employees to unionize.

While gaps already existed in employment legislation, some protections for workers have been removed in response to the COVID-19 pandemic.  For example, the Ontario government recently amended the Employment Standards Act with a new regulation creating Infectious Disease Emergency Leave. This regulation essentially prevents employees from claiming constructive dismissal under the Employment Standards Act when their hours are reduced or eliminated for an extended period due to COVID-19.

Migrant Workers: A Case Study in Precarious Employment

While precarious employment can create vulnerability, it also compounds vulnerability that may already exist. The spread of COVID-19 within the migrant worker community is an example of compounded vulnerability: Migrant workers are an essential component of Ontario’s commercial agriculture, but they have long been a vulnerable and marginalized community as a result of several factors, including their immigration status, employment conditions, and exclusion from some labour relations legislation. In Ontario, agricultural workers are governed by a separate labour relations statute with fewer protections than the one that covers most Ontario employees. In late May 2020, an outbreak of COVID-19 began in southwestern Ontario, and by June, at least 187 migrant workers across southwestern Ontario had tested positive for COVID-19. By July, it was reported that almost 1,000 migrant farm workers have tested positive for COVID-19.

The Role of Unions in Preventing Precarious Employment

Marginalized communities are more likely to work in precarious, low-paying, and part-time employment. The data so far has shown that individuals with post-secondary education and high-earning dual income households are more likely to be able to work from home, therefore they have a lower likelihood of work interruption because of the pandemic.

One of the ways workers’ employment conditions can be protected is through unions. Unions can use the strength of a united collective to push for better working conditions, higher salaries, and job protections. The COVID-19 pandemic has shown just how important these rights are for workers. While some precarious workers are unionized, many are not.

You can learn more about employment rights and how labour organization movements have protected workers through the Canadian Human Rights Museum’s exhibit Rights on the Job, on now until October 2020.

What Now?

All workers have been impacted by the COVID-19 pandemic, whether they are on the front lines, risking their lives to protect and provide for their communities, working from home to help stop the spread of COVID-19, or have had their work hours reduced or eliminated. All workers deserve to be protected. No workers should have to rely on precarious employment.

As a community, we must better protect precarious workers. This can include supporting the labour movement, encouraging unionization, pushing legislators to adopt broader protections for workers, combatting structural inequalities, and engaging in these endeavours through an anti-racist lens. If you have questions about your specific employment situation, we encourage you to seek legal advice.

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

If you’ve settled, or are in the process of settling, a legal case against your employer, you may have been asked to agree to what lawyers call a “non-disparagement clause”. These clauses come in many different forms but at their core, they all ask the individual employee to agree, going forward, not to “disparage” their employer or former employer. In fact, some go further and also prohibit individuals from disparaging other employees who are also employed by the employer.

But what does a non-disparagement clause actually mean, and what does an employee give up by agreeing to one?

What is Disparagement?

On their face, non-disparagement clauses look severe. “To disparage” means to criticize or belittle someone or something or to represent them as being of little worth. Put simply, it means saying, doing, or writing something about someone that could cause a third-party to view that person in a negative way.

Disparagement is a lower standard than defamation. While defamation requires someone to have said something false and damaging, disparagement can also capture something that is true but still damaging.

Non-disparagement clauses can also apply to indirect actions, such as where an individual who has signed a non-disparagement agreement encourages someone else to make disparaging statements. Even statements made in later lawsuits have, in some cases, been found to be a breach of a prior non-disparagement agreement (see e.g. Antoncic v Ontario (Community Safety and Correctional Services)).

Limitations on Non-Disparagement Clauses

There are limits to non-disparagement clauses, however. An obvious but important limit is that non-disparagement clauses do not cover statements made before the clause was agreed to. This can be particularly important when the clause is agreed to as part of a settlement at the end of a long, combative legal fight, where both parties have likely already made negative statements about each other.

Another key limitation is that purely factual statements have often been found not to equal disparagement. For example, in Ibrahim v Hilton Toronto Hotel, the Human Rights Tribunal of Ontario found that a statement that an employee “lost his [human rights] case and did not receive a penny” was an incorrect summary of what had happened in the employee’s case but did not actually disparage the employee.

Other similar decisions have found that simply saying that a case was settled or that one person had sued another does not amount to disparagement. These decisions indicate that, where statements are factual and do not inherently imply anything negative about a party, they do not result in the breach of a non-disparagement clause.

The Cost of a Breach

Even though there are limits, once you agree to a non-disparagement clause, it is important to be careful to avoid violating that agreement. If a clause is breached, a decision-maker will often have the power to enforce the non-disparagement clause and award a remedy to the other party for the breach.

Many non-disparagement clauses will identify a specific penalty for a violation, such as returning any money that has been paid to you as part of the settlement.

Where no specific penalty is identified or where no money has been paid, a decision-maker will typically award general damages for the harm caused by the breach. The amount of damages will be determined on a case-by-case basis and will depend on the level of harm caused to the opposing party. In cases where no real harm has been caused, decision-makers have still awarded damages for the breach of the settlement agreement itself.

Conclusion

Although there are limits on what qualifies as “disparagement”, employees should think carefully when deciding whether to agree to a non-disparagement provision in a settlement. While these clauses will not harm employees in many cases, they will impact what employees can say about their employers or former employers, and it is important to fully understand that impact before signing off.

Where possible, employees should consider getting legal advice before agreeing to a non-disparagement clause or before taking any steps that they are worried might breach an existing clause. An employment lawyer may be able to help you negotiate different language for a non-disparagement provision or guide you on how to avoid an unintended breach.

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.]

A federal employer is required to appoint a competent person to investigate a workplace violence complaint, even if it believes the allegations in the complaint do not relate to or amount to workplace violence, according to a recent decision the Occupational Health and Safety Tribunal of Canada.

In this case, the worker had suffered through an accommodation process that he felt was inadequate. He believed that representatives of the employer, the Canada Food Inspection Agency, were deliberately holding up the process and interfering with accommodations granted to him in order to cause him harm. He also made general claims about bullying and harassment and alleged that employer representatives had raised their voices with him.

After meeting with the worker, the employer concluded that his complaint was not actually about workplace violence and decided not to appoint a competent person. Before the Tribunal, it argued that the employer could exercise a screening function and did not have to appoint an independent investigator to look into workplace violence claims that it felt were obviously unsupportable.

The Tribunal rejected this argument and confirmed that the employer’s role in a workplace violence process is limited to trying to facilitate a resolution of the complaint. Where that is not possible, the appointment of a competent person is required unless it is plain and obvious on the face of the complaint that it does not relate to workplace violence.

In the case before it, the Tribunal noted that it was enough that the worker’s complaints themselves explicitly referred to “workplace violence”. This language made it clear that the complaints “related to” workplace violence. The Tribunal also concluded that it was not plain and obvious that no finding of violence could ever be made if the worker’s allegations were investigated. The employer was therefore required to appoint an investigator.

This decision is further confirmation that the employer’s role in a workplace violence complaint is limited to attempting to facilitate resolution. The employer does not have any screening function and cannot examine the factual allegations in the complaint to determine if they can be proven. If the complaint cannot be resolved at an early stage, a competent, independent investigator must be appointed.

The Public Service Alliance of Canada was represented by Jessica Greenwood, with assistance from Zachary Rodgers.

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.]

Men who grew a beard during the pandemic while working from home or out of work may be asked to shave it off when they re-enter the workplace. Whether your boss can force you to shave your facial hair depends on the type of work you do, your personal circumstances, and, in many instances, whether you are unionized.

Is your employer concerned about safety or appearance?

Employers have policies against facial hair for different reasons. One is for health and safety. An employer is required by law — in Ontario, the Occupational Health and Safety Act — to protect workers from harm, including from exposure to respiratory hazards like fumes, gases or biological contaminants. Some job duties require workers to use a respirator that only fits properly if the person wearing it is clean shaven. Performing these duties safely requires a clean shave.

On the other hand, some employers are simply concerned about appearance. They may have a dress code or grooming policy that prohibits beards or other styles of facial hair for the sake of its business image. A worker’s performance is no different with or without the beard.

In either case, men who experimented with facial hair during the coronavirus lockdown may have little choice but to shave if they want to keep their job.

Do you have a right to facial hair?

Facial hair can engage a worker’s human rights, in certain circumstances. Human rights law — in Ontario, the Human Rights Code — prohibits discrimination on certain listed grounds that include a person’s creed or religion, disability, sex and gender expression.

Facial hair can be protected on the basis of creed or religion. A worker whose beard represents a sincerely held religious belief, such as that held by members of the Sikh faith, is entitled to accommodation by their employer unless it would cause the employer undue hardship. A legitimate safety concern, where employees would be endangered if a bearded person is allowed to work without a properly fitted respirator, is an example of undue hardship. The factors for determining undue hardship, in addition to health and safety, depend on the circumstances of each case. It is well-established, however,  that it is discriminatory for an employer to refuse to hire a person who wears a beard for religious reasons because the employer believes its clients would prefer clean-shaven employees.

The term creed in the Ontario Code may be broad enough to include protection of deeply held non-religious belief system, but there are so far no cases involving facial hair as a practice associated with one.

Facial hair can also be protected on the basis of disability. A worker with proven medical restrictions, which could possibly include a dermatological condition that is irritated by shaving, is also entitled to accommodation to the point of undue hardship on the basis of disability. An employer is not entitled to ask for a diagnosis but can expect to receive enough information from a medical practitioner to fulfill its duty to accommodate the employee’s restrictions.

Otherwise the decision to grow a particular type of facial hair has not been found to be a protected right on the basis of sex or gender expression, the Human Rights Tribunal of Ontario ruled in Browne v Sudbury Integrated Nickel Operations. In that case, the worker, who grew a moustache and goatee to support the “Movember movement,” argued that his employer’s “clean shaven policy,” which only permitted a moustache and soul patch for safety reasons relating to mask-fitting, was discriminatory. But according to the Tribunal, “wearing a beard or other facial hair is a matter of style or grooming, and is not a matter of sufficient social significance to warrant protection under human rights legislation” on the basis of sex.

It was also not protected on the basis of gender expression or gender identity. These grounds were added to the Code to address a perceived gap in the rights of transgender and gender non-conforming persons, not to protect the right of cisgender men to grow beards. The Tribunal found nothing to indicate “bearded men suffer any particular social, economic, political or historical disadvantage in Canadian or Ontario society, absent any connection between the wearing of a beard and matters of religious observance or perhaps some link to a protected ground in the Code other than sex or gender expression.”

It would remain open to transgender or gender non-conforming persons to seek accommodation for the wearing of facial hair on the basis of gender expression and gender identity, if an employer’s policy impeded grooming according to their expressed gender.

Human rights can be a complex area of law that turns on the unique aspects of each case. Workers who have questions about their workplace rights should speak to a lawyer or access community resources, like the Ontario Human Rights Legal Support Centre.

Is your workplace unionized?

Unionized workers have a greater ability to challenge employer policies than non-union workers. Their terms and conditions of employment are governed by a collective agreement that entitles the union to present grievances concerning workplace disputes to be heard by a labour arbitrator. The union generally has the power to challenge the reasonableness of employer policies, including grooming policies that restrict styles of facial hair.

In deciding whether a policy is reasonable, an arbitrator will consider if the employer has a legitimate business interest that justifies interfering with the right of employees to express themselves through their personal appearance. There are many arbitral cases dealing with dress codes and grooming standards.

In one case, Waterloo Regional Police Services Board (1999), 85 LAC (4th) 227, the arbitrator found there was no legitimate rationale for the police service to prohibit men from wearing beards on duty, except for religious or medical reasons. The employer was unable to produce any objective evidence that a beard was inconsistent with the image the employer wished to project. The arbitrator noted that it would be reasonable for the employer to regulate the appearance and maintenance of beards but was unable to justify banning them outright.

In another, Zehrs Markets Inc. (2003), 116 LAC (4th) 216, the arbitrator found that the employer’s policy that the required the grievors to shave their goatees or wear beard nets was unreasonable. There was no evidence that the goatees cause any health and safety issues, like food contamination, or that the absence of beard nets over facial hair affected the grocery store’s image with customers.

In other cases, such as Ottawa Hospital v Canadian Union of Public Employees, Local 4000, 2013 CanLII 643, arbitrators have similarly found that employer bans on facial piercings and clothing that exposed tattoos were unreasonable as they served no legitimate employer interests.

Workers should contact their union representatives if they have any questions about their employer’s grooming policies.