Employment law updates during COVID-19 | MaRS Startup Toolkit (2023)

On November 12, 2020, MaRS hosted an Employment Law Updates Talent Peer-to-Peer with guest speaker Marnie Baizley, an employment, labour and contracts lawyer at SpringLaw. Marnie addressed questions submitted by MaRS ventures on recent employment law changes in Ontario, including the new Infectious Disease Emergency Leave, and best practices for managing workforces in the midst of the second wave of COVID-19.

The new year is fast approaching, and navigating the fallout from COVID-19 continues to be a reality for most HR and talent professionals in the startup ecosystem. Understandably, this unprecedented time comes with many questions, especially in terms of the legal requirements of managing workforces in Ontario during a global pandemic and beyond.

To shed some light on these legal questions, we invited Marnie Baizley, an employment, labour and contracts lawyer at SpringLaw, along with members of the MaRS talent community, to join us for an Employment Law Updates Talent Peer-to-Peer. Questions from the session and Marnie’s responses have been summarized below.

With Ontario’s new Infectious Disease Emergency Leave, what policies are employers required to have in place?

Employers are not required to have a specific policy in place for the Infectious Disease Emergency Leave (IDEL), but they are required to comply with the new Employment Standards Act (ESA) regulation if an employee is eligible for IDEL. Click here for a list of the various reasons an employee can take IDEL.

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Employers should approach each IDEL request with a case-by-case assessment. The first conversation should focus on fact gathering to understand the issue at hand and what kind of accommodation the employee is looking for. From there, create a plan to accommodate the employee and always remember to put it in writing. It may simply be that the employee will go on IDEL, which is an unpaid leave. Or, they may have health issues and are seeking accomodation to continue working in a modified way. Employers need to be mindful of their duty to accommodate to the point of undue hardship and to comply with the Ontario Human Rights Code, to try to avoid a human rights complaint.

As we enter the winter months, when the normal flu season is upon us—in addition to the threat of COVID-19—what changes should employers be making to sick policies?

While no official changes to sick policies are required, we have seen employers be more lenient and flexible with their existing policies. With the second wave of COVID-19, it’s important that employees feel supported to stay home if they are feeling unwell.

Tip: If the company has a sick-leave policy that is more generous than the ESA, it is important to set out that the ESA sick days (three per year) are included in the total entitlement, not in addition to those set out in the sick-leave policy.

We are having a tough time getting employees to take their vacation when there isn’t really anywhere for them to go. Has anything changed with respect to how employers treat vacation carryover under ESA?

Employers are responsible for making sure employees take their full ESA vacation entitlement prior to the ESA vacation deadline (that is, within 10 months of completing the vacation entitlement year). If an employee has not taken their vacation time, you, as an employer, can book it for them or choose to pay them wages in lieu.

For employers who offer vacation time beyond the minimum requirement under ESA legislation (that is, two or three weeks, depending on seniority), check your policies to determine how the carryover should be treated. If you don’t have a policy in place, you may want to consider one. Vacation policies should include language to clarify the following:

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  • How many days can be carried over, if any
  • The deadline to use the vacation carryover
  • Whether unused days that are in excess of the ESA minimums are paid out or it’s a “use it or lose it” policy

The policy should have a blanket statement to say that the company will comply with the ESA in all respects, so if there’s an entitlement that doesn’t meet the ESA minimums, it will be “fixed,” and the employee will receive their ESA minimum entitlement. Here’s a sample that could appear at the end of a contract or policy.

ESA Compliance: It is always our intention to provide you with at least the minimum to which you are entitled with respect to any aspect of this [Contract/Policy] under the ESA. In the event that an “employment standard” under the ESA provides for a greater right or benefit than any provision of this [Contract/Policy], you will be provided with your entitlements under the ESA in lieu of your entitlement under this [Contract/Policy]. All terms of this [Contract/Policy] are subject to the requirements of the ESA.

We’re looking to make our team fully remote, during COVID-19 and beyond. As an employer, what considerations should we be mindful of from an Employment Standards perspective?

Employers should have a remote worker policy. Some key aspects of this kind of policy and practices relating to remote work in general are:

  • Defining working hours and expectations around employee availability
  • Updating overtime policies and practices so employees understand that overtime needs to be approved in writing in advance and managers understand the importance of monitoring overtime, to reduce the risk of mounting overtime pay
  • Defining privacy, confidentiality, document retention and destruction and data security policies and practices
  • Setting out IT equipment and office supply reimbursement eligibility and processes

Click here for SpringLaw’s sample Remote Worker Policy.

What would the implications be if an employer wanted to employ someone globally without bringing them into Canada?

This scenario can have various implications, depending on the location of the employee, the role they are hired for and the details of their employment. In general, this is a complicated issue, and it’s not recommended without seeking prior legal advice to understand the implications in terms of governing employment, immigration and tax laws.

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Since we’ve begun working remotely, some of our Canadian-based employees have requested to temporarily work in other provinces and/or countries. As an employer, can I approve such requests?

Most likely, this temporary relocation is not an issue.

The governing laws applicable to employees working in another province will depend on the wording of the employment agreement itself (check for any “governing laws” provision) and all of the circumstances of the case. The law states:

Where the employee’s work is performed both in and out of Ontario, and the work outside Ontario is a continuation of the work done inside Ontario, the Ontario ESA will apply (ESA s.3(1)).

In a nutshell, subject to certain limited exceptions, the standards set out in the Ontario ESA govern the employment relationship if the employee’s work is performed in Ontario or the employee’s work is performed both in and out of Ontario, and the work outside Ontario is a continuation of the work done inside Ontario.

When any new policies or changes result from COVID-19, how much notice are employers required to give employees?

For new policies and policy changes, the appropriate amount of notice usually depends on the impact of the change. For less impactful ones, like a change to a remote worker policy, two weeks would likely suffice, so long as employees have sufficient time to arrange for necessary adjustments (for example, arranging for secure WiFi connection).

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For more fundamental changes, like an alteration of your bonus payout structure that means reduced employee compensation, the amount of notice should jibe with whatever the employee’s entitlement would be upon termination (this is based on what their contract says; for example, it may be capped at ESA minimums or they may be entitled to common-law notice).

The general rule of thumb is to give more notice for more fundamental changes. When changes to compensation are involved, seeking strategic legal advice is worth the investment. For less impactful changes to policies or practices, try to provide as much notice as is feasible.

Our team is growing, and we’re realizing we need to update our employment agreements to reduce employer risk. How do we approach that process?

To make changes to an existing employment agreement and ensure the new contract is enforceable, you need to provide employees with fresh “consideration” (a fancy and confusing legal word meaning “something of value”) or reasonable notice of the change.

Fresh consideration could be anything from a salary increase to a signing bonus to a gift card. Similar to policy changes, the “consideration” should be reflective of the level of impact of the change.

If fresh consideration is not a feasible option then you can give reasonable notice of termination of the existing employment agreement and offer new terms of employment. During the notice period, the employee has the choice to sign the new agreement or move on if they don’t want to accept the new terms. Strategic legal advice is worth the investment under these circumstances. This can get complicated!

For questions related to the above, or any other HR or talent needs, please contact Erin Ashton, HR advisor, at eashton@marsdd.com.

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These insights are based on Ontario law. For other jurisdictions, please consult with your local Ministry of Labour.

SpringLaw is a Canadian employment, labour and human rights boutique law firm. They’re virtual and paperless, and love technology. They help employers build and manage their teams strategically and calmly, while resolving their people challenges with more certainty and less drama. While their client base spans many industries, SpringLaw’s sweet spot is small- and medium-sized businesses in tech—whether Canadian or U.S.-based with Canadian operations.

Joty Bath of MaRS Discovery District prepared this summary from the event, highlighting the key insights Marnie shared.

FAQs

Can my employer stop me going to work with COVID? ›

You may be able claim unfair dismissal if your employer dismisses you because of sickness absence taken in relation to COVID. Although this sick leave may be noted on your sickness record, it is important to follow government guidance and not attend work while displaying symptoms of COVID.

What is the latest Employment Act UK? ›

Employment Act 2002 is up to date with all changes known to be in force on or before 21 November 2022. There are changes that may be brought into force at a future date.

How long can you have off work with COVID? ›

There's currently no legally required length of time someone with COVID-19 should stay off work.

Can I work if I test positive for COVID? ›

Try to stay at home and avoid contact with other people if you: have any symptoms of COVID-19, and have a high temperature or you do not feel well enough to go to work or do your normal activities. have tested positive for COVID-19 – this means it's very likely you have the virus.

Do you get paid if you have Covid? ›

If an employee or worker is not able to work because they're ill with COVID-19, they must get any sick pay they're entitled to. Someone might have to self-isolate more than once because of COVID-19.

Can I refuse to go back to the office? ›

In some limited circumstances, an individual may also have a legal right to refuse a return to the workplace, so employers should carefully assess each request to work flexibly on its own merits.

What are the new employment laws for 2022? ›

New limits on employment statutory redundancy pay come into force on 6 April 2022. Employers that dismiss employees for redundancy must pay those with two years' service an amount based on the employee's weekly pay, length of service and age.

What are the 4 new labour laws? ›

The four labour codes — the Code on Wages, Industrial Relations Code, Social Security Code and the Occupational Safety, Health and Working Conditions Code — are set to replace 29 labour laws.

What are the 5 areas of employment law? ›

Here are some of the things you need to know.
  • Employment contracts. There is no legal requirement to provide a written employment contract but it is advisable to have one so the terms of employment are recorded. ...
  • Protecting the interests of the business. ...
  • Unfair dismissal. ...
  • Discrimination. ...
  • Personal data.
27 Jul 2018

Can I go back to work after 2 days of COVID? ›

Isolation can be discontinued at least 5 days after symptom onset (day 0 is the day symptoms appeared, and day 1 is the next full day thereafter) if fever has resolved for at least 24 hours (without taking fever-reducing medications) and other symptoms are improving.

Can I go back to work after 5 days of positive COVID? ›

Many people with COVID-19 will no longer be infectious to others after 5 days. If you have a positive COVID-19 test result, try to stay at home and avoid contact with other people for 5 days after the day you took your test.

Do you need a fit note for COVID? ›

You should self-certify for the first ten days as normal if you are unfit to work. You do not need to contact your GP. If you remain unwell and unfit to work after ten days, visit www.111.nhs.uk and complete the online self-assessment.

How long are you infectious with Omicron? ›

We know that people tend to be most infectious early in the course of their infection. With Omicron, most transmission occurs during the one to two days before onset of symptoms, and in the two to three days afterwards.

Can you get Covid back to back? ›

Reinfection with the virus that causes COVID-19 means a person was infected, recovered, and then later became infected again. After recovering from COVID-19, most individuals will have some protection from repeat infections. However, reinfections do occur after COVID-19.

Does Covid count as sick leave? ›

The treatment of COVID absence has varied across employers. However, if an employee with COVID-19 is too sick to work whether at home or otherwise, then unless otherwise agreed at a local level the employee would normally be entitled to be paid in accordance with the employee's normal occupational sick pay entitlement.

Can you get Covid 3 times? ›

A growing number of people are getting COVID-19 twice, 3 times, even 4.

Can an employee refuse to work? ›

Does an employee have a legal right to refuse to return to work? Yes, but only in certain circumstances. The Employment Rights Act 1996 gives employees a legal right to stay away from their workplace where they have a reasonable belief that it would put them at risk or serious and imminent danger.

Can I refuse to do something at work if I don't feel safe? ›

Under the Occupational Safety and Health Act (OSHA), employees may refuse work if they “reasonably believe they are in imminent danger.” That fear typically includes the threat of death or serious physical harm.

Can I be forced to return to office? ›

Depending on the terms of your contract, the likelihood is that you should return to work if your manager asks you to do, as a “reasonable management request”. Many contracts will stipulate that your work is to be carried out in your office.

What is the latest version of the Basic Conditions of employment Act? ›

The Basic Conditions of Employment Act 75 of 1997 intends: to give effect to the right to fair labour practices referred to in section 23(1) of the Constitution by establishing and making provision for the regulation of basic conditions of employment; and.

What is current employment law? ›

Employment law regulates the relationship between employers and employees. It governs what employers can expect from employees, what employers can ask employees to do, and employees' rights at work.

What are the three new Labour laws? ›

The IR Code subsumes three (3) labour laws relating to industrial relations, namely, the Trade Unions Act, 1926, the Industrial Employment (Standing Orders) Act, 1946 and the Industrial Disputes Act, 1947.

What are the four rights of employees? ›

the right to say no to unsafe work. the right to be consulted about safety in the workplace. the right to workers compensation. the right to a fair and just workplace.

What are the three types of employee rights? ›

This section will discuss employee rights surrounding job protection, privacy, and unionization.

What is section 23 in labour law? ›

Whoever contravenes any provision of this Act or of any rules made thereunder prohibiting, restricting or regulating the employment of contract labour, or contravenes any condition of a licence granted under this Act, shall be punishable with imprisonment for a term which may extend to three months, or with fine which ...

What are the 7 types of employment? ›

Seven common employee classification types
  • Full-time. Full-time employees work for a specified number of hours every week and are typically paid on a salary basis that does not change. ...
  • Part-time. ...
  • Contract. ...
  • Independent contractor. ...
  • Temporary. ...
  • On-call. ...
  • Volunteer.

What 3 responsibilities does the employer have? ›

Provide a workplace free from serious recognized hazards and comply with standards, rules and regulations issued under the OSH Act. Examine workplace conditions to make sure they conform to applicable OSHA standards. Make sure employees have and use safe tools and equipment and properly maintain this equipment.

What are employment laws examples? ›

Besides health and safety, wages and benefits and discrimination, employment law also often focuses on labor relations, unemployment compensation, family and medical leave, employee contracts, immigration and even the hiring process.

Can you have Covid and test negative? ›

A negative result means it's likely you are not infectious. But a negative test is not a guarantee you do not have COVID-19 and there's still a chance you may be infectious. You should follow advice on how to avoid catching and spreading the virus.

How long does Covid last Omicron vaccinated? ›

How long do omicron symptoms last? Most people who test positive with any variant of COVID-19 typically experience some symptoms for a couple weeks. People who have long COVID-19 symptoms can experience health problems for four or more weeks after first being infected, according to the CDC.

Can I return to work after Covid with a cough? ›

Return to work after 10 days, and for 3 days with no fever (without-fever reducing medicine) and improvement of respiratory symptoms (cough, shortness of breath) whichever is longer. Stay 6 feet away from co-workers and visitors, if possible. If it is difficult to stay 6 feet away, wear a mask.

What day is day one of Covid? ›

Day 1 is the day after symptoms start (or after the day of your first positive test if you don't have symptoms).

How long after testing positive for Covid are you contagious? ›

People are most contagious with COVID-19 during the first 5 days of their illness. Many people don't have any symptoms during the first 2 to 3 days of their illness. This is why COVID-19 outbreaks are so hard to contain. On average, people are contagious for 5 to 10 days.

Do I need to inform my employer if I test positive for COVID-19? ›

If someone finds out they've tested positive or has COVID-19 symptoms when they're at their workplace, they should tell their employer. 'Self-isolating' (staying at home) is no longer a legal requirement.

What if I cant get a fit note? ›

If you need a fit note, contact the healthcare professional treating you. They will tell you whether you should make an appointment to see them or book a phone consultation. A healthcare professional can give you a fit note on the day they assess you or at any time after the assessment.

How many days can I be off sick without a doctor's note? ›

7 days off sick or less

If you're off work sick for 7 days or less, your employer should not ask for medical evidence that you've been ill. Instead they can ask you to confirm that you've been ill. You can do this by filling in a form yourself when you return to work.

What is a good excuse to miss work during Covid? ›

The best last-minute excuses to miss work include personal illness, family emergency, doctor's appointments, child care, mental health challenges, death of a loved one, and household problems. In fact, any unforeseen circumstance that requires your attention is among the best last-minute excuses to miss work.

What are Omicron symptoms if vaccinated? ›

Symptoms of Omicron can be similar to the original COVID-19 virus and other variants, which can include a combination of the following: fever, cough, congestion, runny nose, headache, sore throat, muscle pains/aches and fatigue.

How long does Omicron test positive? ›

During the Omicron BA. 1 period, 5 days after symptom onset, 80% of participants remained positive via a rapid antigen test. Meaning These findings indicate differences in symptoms in the BA.

How long do I quarantine Omicron? ›

If you test positive or symptoms develop, isolate. If you test negative and have no symptoms, end quarantine or work exclusion after Day 5. If you don't test and have no symptoms, end quarantine or work exclusion after Day 10.

How long do you have immunity after having Covid? ›

(2021). Naturally acquired SARS-CoV-2 immunity persists for up to 11 months following infection. The Journal of Infectious Diseases.

How many times can I catch Covid? ›

Yes, it is possible to get Covid-19 two, three or even more times.

Can you get Covid again within 3 months? ›

Studies suggest that reinfection with SARS-CoV-2 with the same virus variant as the initial infection or reinfection with a different variant are both possible; early reinfection within 90 days of the initial infection can occur.

Do I have to work if I have Covid? ›

If you have symptoms of a respiratory infection, such as COVID-19, and you have a high temperature or you do not feel well enough to go to work or carry out normal activities, you are advised to try to stay at home and avoid contact with other people.

How long will I test positive for Covid after having it? ›

After a positive test result, you may continue to test positive for some time after. You may continue to test positive on antigen tests for a few weeks after your initial positive. You may continue to test positive on NAATs for up to 90 days.

What is positive Covid test look like? ›

Two lines – even faint lines – indicate the test is positive.

Can I go back to work with cough after COVID? ›

Notify your supervisor. Stay home for 14 days. If you become sick (fever, cough, shortness of breath, chills, headache, muscle pain, sore throat, or loss of taste or smell), continue to stay home and follow section 5. Return to work after 14 days if you do not develop symptoms.

Can an employer require COVID testing before returning to work? ›

There is no requirement to be tested prior to returning to the work. It is, however, recommended they continue to practice social distancing and good hygiene as a precaution and wear a surgical mask.

Is a Covid risk assessment a legal requirement? ›

HSE no longer expects every business to consider COVID-19 in their risk assessment or to have specific measures in place. Employers may still choose to continue to cover COVID-19 in their risk assessments. There is a requirement to protect those who will come into contact with the virus due to their work activity.

Do you have to respond to test and trace? ›

If you have been notified via NHS Test and Trace, it's important that you respond as soon as possible so that NHS Test and Trace can give appropriate advice to those who need it. You will be told to do this online via a secure website or you will be called by one of the contract tracers. 17.

How long is Omicron contagious? ›

We know that people tend to be most infectious early in the course of their infection. With Omicron, most transmission occurs during the one to two days before onset of symptoms, and in the two to three days afterwards.

How long do you test positive for Omicron? ›

During the Omicron BA. 1 period, 5 days after symptom onset, 80% of participants remained positive via a rapid antigen test. Meaning These findings indicate differences in symptoms in the BA.

Can rapid be positive and PCR negative? ›

In such cases, the antigen test missed detecting the virus, but the PCR test caught it. In the case of a positive antigen test result that yields a negative PCR test result, however, the problem could have more to do with how the test was done.

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