By Barry W. Kwasniewski and Martin U. Wissmath

a) Extension to the Infectious Disease Emergency Leave in Ontario

The Government of Ontario announced it is further extending the period that infectious disease emergency leave (“IDEL”) will apply. On September 16, 2021, the government filed Ontario Regulation 650/21: Infectious Disease Emergency Leave under the Employment Standards Act, 2000 (“ESA”). O Reg 650/21 amends Ontario Regulation 228/20, thereby extending the “COVID-19 Period” under section 50.1 of the ESA to January 1, 2022.

IDEL had been set to expire on September 25, 2021, as referenced in the June 2021 Charity & NFP Law Update. The extension may come as a relief for employers, including charities and not-for-profits who had to reduce or eliminate employee working hours during the COVID-19 pandemic to reduce the risk of exposure among their workforce. The extension of the COVID-19 period means that non-unionized employees who have been temporarily laid off due to an infectious disease emergency, such as the COVID-19 pandemic, will be deemed to be on IDEL (rather than laid off or constructively dismissed under the ESA) until January 1, 2022, which will provide employees with unpaid job-protected leave during the pandemic.

It is important to note that IDEL does not necessarily exclude the possibility for laid-off employees to claim common-law constructive dismissal. The jurisprudence in Ontario on this issue is currently uncertain after conflicting judgements in the Ontario Superior Court of Justice. Charity & NFP Law Bulletin No. 497 provides further background regarding recent court decisions about deemed IDEL and constructive dismissal actions.

b) Personal Preference Not Enough for Ontario Human Rights Code COVID Vaccine Exemption: OHRC

“While the [Human Rights] Code prohibits discrimination based on creed, personal preferences or singular beliefs do not amount to a creed for the purposes of the Code.” That is according to the Ontario Human Rights Commission (“OHRC”) in a policy statement published September 22, 2021, regarding religious claims for COVID-19 vaccine exemptions. While the OHRC and human rights laws recognize the importance of balancing rights of non-discrimination and public health and safety, “including the need to address evidence-based risks associated with COVID-19,” not all personal beliefs amount to a religious “creed”, which is protected under the Code. Receiving a COVID-19 vaccine is voluntary, however,

the OHRC’s position is that a person who chooses not to be vaccinated based on personal preference does not have the right to accommodation under the Code. The OHRC is not aware of any tribunal or court decision that found a singular belief against vaccinations or masks amounted to a creed within the meaning of the Code.

For bona fide claims of “creed” exemptions — and other enumerated grounds, such as a medical disability — under the Code, employers have a duty to accommodate an employee to the point of undue hardship. According to the OHRC, “the duty to accommodate can be limited if it would significantly compromise health and safety amounting to undue hardship — such as during a pandemic.” Even if someone were denied employment or a service “because of a creed-based belief against vaccinations” that does not necessarily mean they would be exempted from vaccine mandates, certification or COVID-19 testing requirements, the OHRC stated.

In an earlier policy statement on COVID-19 Questions and Answers published July 27, 2021, the OHRC cited Sharma v Toronto (City), a 2020 Human Rights Tribunal of Ontario decision that found “the person’s objection to wearing a mask does not fall within the meaning of ‘creed’.” According to the OHRC, a requirement to wear a mask or prove vaccination may in fact be a reasonable bona fide requirement by an employer for health and safety reasons, “especially when serious risk to public health and safety are shown to exist like during a pandemic.” For more information on COVID-19 vaccination policies for workplaces, see this month’s Charity & NFP Law Bulletin No. 503, above.

c) COVID-19 On-Site Testing of Workers Allowed by Arbitrator

An Ontario arbitrator decided that requiring COVID-19 on-site testing of workers at a Toronto construction site was a reasonable balancing of employer and employee interests. In the June 10, 2021 award, Ellisdon Construction Ltd. and LIUNA, Local 183, the union grieved the employer’s policy, which made on-site rapid antigen testing for COVID-19 a compulsory requirement to access the worksite (the “Policy”). The union argued that the Policy “failed to balance critical privacy rights and bodily integrity interests that it violates.” According to the union’s submissions, the employer did not discharge its burden of “establishing on the basis of objective evidence that the Policy is a reasonably necessary and proportionate response to a specific problem in the setting in which the Union members work.” Arbitrator Robert W. Kitchen dismissed the grievance, deciding that the Policy was reasonable when “one weighs the intrusiveness of the rapid test against the objective of the Policy” to prevent the spread of COVID-19, which “remains a threat to the public at large” and those working at the employer’s construction sites.

The employer’s Policy started with participation in a provincial government pilot program, and received testing materials from the Ontario Ministry of Health. Nurses and other healthcare professionals administered rapid tests involving throat swabs, which the union argued was physically invasive. Other “less intrusive measures” had already significantly reduced the risk of COVID-19 transmission at the employer’s worksites, the union argued, such as pre-attendance screening, mandatory masking, physical distancing and enhanced cleaning procedures. Open-air settings at the employer’s worksites also reduced the risk of transmission, the union asserted. In its submissions, the union compared the invasion of privacy and bodily integrity by the Policy to mandatory drug and alcohol testing, relying on the Supreme Court of Canada’s judgment in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd. The Supreme Court of Canada in that case found that an employer’s unilateral imposition of “mandatory, random and unannounced testing for all employees” was “overwhelmingly rejected by arbitrators as an unjustified affront to the dignity and privacy of employees unless there is a reasonable cause” in the workplace.

Arbitrator Kitchen cited another recent award in Caressant Care Nursing & Retirement Homes and Christian Labour Association of Canada, in which the arbitrator rejected the analogy of drug and alcohol testing, stating that “controlling COVID infection is not the same as monitoring the workplace for intoxicants”, COVID-19 is a novel virus that public health authorities are still learning about, and testing positive for COVID-19 is not “culpable conduct” — such as being intoxicated. In his decision, Arbitrator Kitchen also found that “significant steps” had been taken by the employer to protect the privacy of individuals:

(a)  Individuals being tested are physical distanced from others during the testing (aside from the healthcare professional administering the test).

(b)  Swabbing is conducted in a manner such that it cannot be observed by anyone other than the healthcare professional administering the test.

(c)  Testing results are read and recorded by healthcare professionals such that they cannot be observed by anyone other than the healthcare professional administering the test.

(d)  Healthcare professionals sanitize before and after each test, and deep cleaning of the test site is conducted at regular intervals throughout the day.

(e) All bio hazardous waste from the test site is disposed of through a registered hazardous waste removal process.

While the “open air” environment might have lowered the risk of transmission, it did not eliminate the risk, Arbitrator Kitchen noted, and with approximately 100 workers at a worksite on any day for long hours, social distancing was not always possible. Arbitrator Kitchen found no evidence that the mitigation efforts had “significantly reduced” transmissions. Further weight was given to the reasonability of the Policy because the risk of COVID-19 was not “hypothetical or speculative,” since there had been an outbreak and two cases of apparent workplace transmission. In conclusion, the Policy was found to be reasonable.

This arbitration award provides some quasi-judicial support for the reasonability of requiring COVID-19 tests by employers; however, the decision depended on the particular facts and circumstances at the time. Charities and not-for-profits should interpret such arbitration decisions with caution, as their own situation and policies implemented during this pandemic may be assessed differently. The facts of this award took place when the province was still in a government-mandated lockdown, and fewer people had been vaccinated. Courts are not bound by any arbitration awards, which may not be persuasive to judges when similar cases are litigated.

Read the September 2021 Charity & NFP Law Update