Audit, Compliance and Risk Blog

While BLG’s recent article highlighted an employer’s successful defence of its COVID-19 vaccine policy in UFCW v. Paragon Protection, the outcome was different in Power Workers’ Union v. Electrical Safety Authority.

On November 11, 2021, Arbitrator John Stout found that the mandatory vaccination policy of the Electrical Safety Authority (ESA) was unreasonable to the extent that employees may be disciplined, discharged, or placed on unpaid leave for failing to get fully vaccinated; however, Arbitrator Stout emphasized that context is everything. As detailed below, his conclusion rested on a few factors specific to this workplace. He emphasized that the outcome may be different elsewhere or at another time.

British Columbia moved into Step 3 of the BC Restart Plan on July 1, 2021, and one of the main implications for employers is a shift from COVID-19 safety plans to general communicable disease prevention. WorkSafeBC has released its guidance on communicable disease prevention, and employers should be adapting their COVID-19 safety plans to communicable disease prevention with this guidance in mind.

One of the most talked about topics when it comes to the scheduled roll out of the COVID-19 vaccine this year is whether an employer is entitled to require its employees to receive the vaccine in order to remain at or return to the workplace.

It’s a multifaceted issue, and it deserves fulsome consideration when discussing the important role employers could play in the national vaccination campaign, which is a key component of the fight against the spread of COVID-19 within an employer’s workplace and more broadly. However, that is not the only interest at play. An employer’s obligation to provide a safe workplace must be balanced with employees’ potentially competing interests, such as the fundamental freedom to make inherently personal choices about one’s own body. This can include competing rights relate to health or religious beliefs and trigger protection under human rights legislation.

Since surfacing in Québec, COVID-19 has had its share of drawbacks for workers and employers, and continues to impose numerous human resource management and administration challenges. Employer obligations and responsibilities regarding occupational health and safety have increased significantly. These include stricter hygiene and maintenance measures in the workplace, social distancing, and wearing masks, among others.

The upsurge in COVID-19 cases seen recently is an unfortunate reminder of its high rate of contagion and its virulence among at risk populations. The global scientific community has been working hard to develop effective vaccines, and for many, such vaccines are the long-awaited solution. In this context, several legal issues arise. For example, could an employer require employees to be vaccinated against COVID-19?

A variety of laws and regulations each prohibit sexual harassment in workplaces. These include:

· Human rights laws prohibit employers from committing or condoning discrimination, including sex discrimination which includes sexual harassment.

· General labour statutes find that harassment can alter terms of employment and even trigger constructive dismissal.

· Occupational health and safety laws protect workers from workplace hazards, which increasingly including bullying and harassment.

· Workers compensation laws provide an insurance system to compensate workers for occupational injuries and illness.

On August 20, 2020, the federal government announced its transition from the Canada Emergency Response Benefit (CERB) to a simplified Employment Insurance (EI) program to provide income support to those unable to work due to COVID-19.

In addition to simplifying access to EI, the government will introduce three new temporary recovery benefits: the Canada Recovery Sickness Benefit, the Canada Recovery Caregiving Benefit and the Canada Recovery Benefit.

Subject to parliamentary approval, these programs will be effective starting September 27 and available for one year.

It’s been 30 years since President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law. ADA does more than just add “persons with a disability” to the list of groups protected against discrimination by Title VII of the Civil Rights Act of 1964 (based on race, sex, etc.). It is designed not just to protect these individuals’ employment opportunities, but also to ensure their access to public services and accommodation. The ADA Amendments Act of 2008 repudiated several U.S. Supreme Court decisions that had interpreted ADA narrowly, and clarified related issues highlighted by rulemakings and litigation up to that time.

When someone receives occupational direction and/or compensation from more than one entity, who’s the boss? Sometimes it’s obviously one or the other, sometimes it’s not clear which one is, and sometimes the answer may be “both.” These unclear situations are fairly common; consider franchise operations where the franchisor exerts some controls over how the franchisee does business, workplaces where “temp agencies” supply workers who receive at least some directions from the host but get paid by the agency, and worksites where a prime contractor integrates services by subcontractors and their employees. Identifying the boss(es) has important implications, not just for who writes a paycheck but for who is subject to legal responsibilities and prohibitions.

North American employers are required to verify new employees’ identities and eligibility to work in the country. In the United States, employers’ inquiries must confirm eligibility to work in the U.S. when an employee is actually being hired (not just applying), using Form I-9 (Employment Eligibility Verification), which is issued and administered by the U.S. Citizenship and Immigration Services (USCIS) unit of the federal Department of Homeland Security (DHS). USCIS has revised the I-9 form – the new form is dated October 21, 2019 but was only formally published on January 31, 2020. The new version includes minor changes from the preceding one (which was dated July 17, 2017 and set to expire August 31, 2019 but subject to extended viability by USCIS pending approval of the newest version).

The Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. (I wrote about recent revisions here). Late last year, a federal appeals court upheld OSHA’s approaches to workplace testing requirements under the Respiratory Protection Standard (Standard) (Secretary of Labor v. Seward Ship's Drydock, Inc.).