Audit, Compliance and Risk Blog

Employee’s “Silent Acquiescence” to Employer’s Change in Terms of Employment May Undo Actionable Constructive Discharge

Posted by Jon Elliott on Mon, Nov 14, 2022

After an employer discharges an employee, the (ex) employee may be able to sue claiming that the discharge was unjustified or“wrongful,” depending on the terms of any applicable employment contract andthe circumstances of the discharge. One complicated set of circumstances involve discharges that are “constructive” rather than explicit/actual. Whereas an employer may commit an actual breach by dismissing an employee without cause and without sufficient advance notice or severance pay, a constructive breach occurs when an employer forces the employee to accept a fundamental (or in some formulations, “substantial”) change in the employment relationship or quit.

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Tags: Employee Rights, Protecting employees, Employment, Employment Law, Employment Termination

Ebola virus: What to do when an employee is about to travel to Uganda or another affected country

Posted by BLG’s Labour and Employment Group on Mon, Oct 31, 2022

These past few weeks, the World Health Organization (WHO) has expressed concern regarding an outbreak of the Ebola virus in Uganda. While this is now the fifth wave of this virus to hit the country, current victims do not appear to respond to vaccines quite as well as in the past. The responsible strain therefore presents a very high mortality rate, ranging between 90 and 100%.

The article below was first published during a previous outbreak of the virus in 2014, and was updated to address the current situation in 2022. We recommend that you keep an eye on the Public Health Agency of Canada’s latest guidelines.

What is Ebola?

Ebola is an hemorrhagic fever. Its incubation period lasts between 2 to 21 days. Contamination is possible as soon as the first symptoms arise and the risk lasts as long as the virus is present in an individual’s blood. Inter-human transmission can occur through direct contact with infected blood or other bodily fluids, or by touching an object soiled with the same secretions.

Providing health care, participating to funeral rites and having sexual contacts with an infected person carry the most risks when it comes to contracting the virus. As well, consuming wild animals’ meat or being in contact with infected animals may also expose humans to the virus.

Recommended measures for employers

As an employer, how should you react when an employee announces that they have made travel plans to a country at risk?

It should be noted that no case of an Ebola virus infection has been identified in Canada as of publication date. However, the employer can take action to protect the workplace when an employee returns from visiting an affected area. 

Since the incubation period of 21 days is significant, preventive measures will help to ensure the employee will not lose pay, nor have to exhaust their accrued time-off days.

1. Before departure
  • Check with the employee as to their itinerary and date of return on Canadian soil. 

  • Provided the employee's functions allow it, establish a work-at-home agreement for their first few days back on Canadian soil and provide them with the tools necessary to perform their functions. 

  • Inform the employee that they must follow the guidelines for symptom self-monitoring for 21 days following their return, including taking their temperature daily, and make the employee’s commitment to this agreement a condition for returning to the workplace.

  • Advise the employee not to report to work if they have a fever or show other symptoms (such as muscle aches, a headache or sore throat, vomiting, diarrhea, a rash, bleeding gums, etc.) Visit the WHO’s page about Ebola to learn more. 

  • Notify the employee that they will have to leave the workplace in case of a sudden onset of fever or other symptoms during the day. 

  • Notify the employee that if they seem feverish, they will not have access to the workplace until a medical certificate attests their fitness. 


2. Upon returning
  • Remind the employee of their commitment to self-monitor, and that access to the workplace will be denied them in case of a fever. 

  • Direct the employee to health services in case of a fever or the appearance of other symptoms. 


3. General preventive measures, actionable immediately
  • It is desirable to modify vacation application forms so that employees disclose their travel destination, to facilitate preventive measures before and after their return.

  • Likewise, if the employer authorizes employees to work from abroad, the teleworking policy should include a duty to divulge any change in location and any location visited while working abroad, at least 30 days prior to the employee’s return to the employer’s establishment. 

If your organization provides health care or works with vulnerable or immunocompromised persons, additional precautionary measures may be necessary.

Contact the  BLG Labour and Employment Law Group for assistance with planning and deploying adequate preventive measures, or regarding any other concern you may have as an employer.

STP ComplianceEHS (STP) provides a variety of single-law and multi-law services, intended to facilitate clients’ understanding of and compliance with requirements. STP has recently published an update to its guide titled Employment Law: Solutions for the Canadian Workplace.

About the author

BLG’s Labour and Employment Group: For employment law advice on workplace legal issues arising from COVID-19, BLG's Labour and Employment team is ready and available to assist with navigating these unprecedented times. BLG has also created a COVID-19 Resource Centre to assist businesses on a variety of topics, including contractual risks, public disclosure requirements, education and criminal law.

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Tags: Business & Legal, Employer Best Practices, Employee Rights, Employment Law, Labour & Employment

New legislation imposes additional legal obligations for Ontario workplaces

Posted by BLG’s Labour and Employment Group on Mon, May 16, 2022

Employers in Ontario need to be aware of several new obligations as a result of Bill 88, the Working for Workers Act, 2022. They include a written policy on electronic monitoring for certain employers, new measures regarding “information technology consultants” and “business consultants,” a new legislative framework for digital platform workers and additional occupational health and safety legislation obligations. Steps can be taken now to proactively plan for the changes that are in force and that will come in force in the near future.

Bill 88 was passed by the Ontario legislature on April 7, 2022 and received royal assent on April 11, 2022. Employers should be up to date with Bill 88 in order to ensure compliance. Here is a summary of the key points from Bill 88.

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Tags: Business & Legal, Employee Rights, Employment Law, Labour & Employment, Ontario

Parts of Ontario employer vaccine policy found unreasonable in arbitration

Posted by BLG’s Labour and Employment Group on Mon, Dec 06, 2021

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.

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, ESA, Vaccine, Immunization

WorkSafeBC – COVID-19 safety plans shift to communicable disease prevention

Posted by BLG’s Labour and Employment Group on Tue, Sep 14, 2021

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.

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, British Columbia, BC Restart Plan, Communicable Disease Prevention

The right to bare arms: Considerations for COVID-19 vaccines in the workplace

Posted by BLG’s Labour and Employment Group on Tue, Apr 06, 2021

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.

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, Vaccine, Immunization

Can a Québec employer force employees to get a COVID-19 vaccination?

Posted by BLG’s Labour and Employment Group on Wed, Dec 16, 2020

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?

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, Vaccine, Immunization, Quebec

British Columbia Supreme Court Finds Human Rights and Workers Comp Claims are not Mutually Exclusive

Posted by Jon Elliott on Tue, Oct 13, 2020

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.

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Tags: Employee Rights, Discrimination, BC Human Rights Tribunal, Sexual Harassment, BC Human Rights Code

CERB and EI changes: What employers and workers need to know

Posted by BLG’s Labour and Employment Group on Tue, Sep 22, 2020

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.

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Tags: Business & Legal, Employee Rights, Covid-19, Employment Law, Labour & Employment, Canada Recovery Sickness Benefit, Canada Emergency Response Benefit, Employment Insurance, Canada Recovery Caregiving Benefit

As Americans with Disabilities Act turns 30, it’s a good time to review accommodations

Posted by Jon Elliott on Tue, Sep 01, 2020

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.


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Tags: Business & Legal, Employee Rights, EEOC, DOJ, ADA, Disability