Employment law updates talent peer-to-peer: Insights from SpringLaw

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. 

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:

• 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.

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). 

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. 

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.