Audit, Compliance and Risk Blog

On February 1, the Occupational Safety and Health Administration (OSHA) issued citations to Amazon company warehouses in three states, continuing investigations into the company’s practices in other states. OSHA is asserting that the company is violating the Employer’s General Duty Clause by failing to protect warehouse workers from low back injuries and other musculoskeletal disorders. Although California enforces specific ergonomics requirements (which I’ve written about HERE), OSHA and other states instead regulate ergonomics violations by targeted industries through their General Duty Clauses. The remainder of this note discusses these recent OSHA efforts to protect warehouse workers.

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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.

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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.

• By: Katherine Poirier, Don J. Alberga, Catherine Pronovost, Stéphanie Desjardins

• Services: Labour & Employment
  
  

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Beginning in 2020, the Canada Business Corporation Act (CBCA) requires federal distributing companies to disclose annually the diversity in their boards and senior management. (CBCA s. 172.1). Disclosures are made to shareholders at annual meetings, and in filings with Corporations Canada. Corporations Canada has now published its review of filings covering calendar year 2021, citing the latest information and comparing with 2020 reports to assess initial progress.

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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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In December, the Ontario Court of Appeal reviewed a case involving two disputing factions in a 5-member partnership (Extreme Venture Partners Fund I LP v. Varma).¹  The two partners who managed the activities decided that their efforts were being undervalued by the other 3, and responded by starting competing businesses, diverting resources from the original entity, and hiding these activities. The other 3 partners eventually found out and sued them for breaches of their fiduciary duties. The trial court found against the wrongdoers, and on appeal the Court of Appeal actually increased their punishment.

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In October, the Ontario Superior Court of Justice granted summary judgment to an ex-employee suing her ex-employer for wrongful dismissal, aggravated damages for mental distress and punitive damages. In this case, Humphrey v. Menē, Inc., the Court found that the employer’s “bad faith” termination had invalidated the termination clause in the parties’ employment contract, and then rejected the employer’s change in argument from a termination for cause to termination without cause, and awarded 11 months’ wages at the salary of $90,000, aggravated damages of $50,000 due to mental distress, and $25,000 in punitive damages for 2.7 years of service.

Remembering that summary judgment is only available when the court decides there’s no genuine issue of fact that would justify a trial, this represents an extreme outcome. However, it still should remind employers to tread carefully when moving to terminate an employee.

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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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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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In June, the Ontario Court of Appeal issued a decision addressing two issues that should interest corporate directors – certainly in the province, and probably throughout Canada. The case is O’Reilly v. ClearMRI Solutions Ltd., and the issues it addresses are:

• when might two companies be considered “common employers” of a single individual employee, sharing responsibilities for compliance with applicable labour laws; and

• when might corporate directors, including directors of “common employers,” become personally liable for their company’s non-compliance with those laws.

The rest of this note discusses these issues, and the O’Reilly case decision.

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Whose interests should corporate directors consider when running their companies? At least since 2008. The prevailing view in Canada is that while directors must consider shareholders’ interests, they may also consider the interests of other stakeholders. For example, in 2008, the Supreme Court of Canada decided the case BCE Inc. v. 1976 Debentureholders, allowing but not requiring consideration of debenture holders. Recently this permission has been shading toward an expectation.

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