Elizabeth McLeod is a lawyer with O’Neill Associates, a leading labour and employment firm in Thunder Bay. Liz is a member of the Charter Class of the Bora Laskin Faculty of Law at Lakehead University. She has advocated for clients in front of the Ontario Court of Justice, the Superior Court of Justice, the OLRB and the Human Rights Tribunal of Ontario. She sits on several not for profit Boards, teaches a law course at Lakehead and volunteers in the community. While the content of her presentation is not legal advice, it is pertinent to a great many of us.
First, the pandemic has impacted the workplace in a number of ways: federal law; work environment; provincial law.
For example, new federal laws governing leaves of absence were set outside of the parameters of the Employment Standards Act, Collective Bargaining Agreements and Individual agreements. The new legislation allowed for unpaid leaves and the collection of E.I and C.E.R.B. in the spring and summer. E.S.A. termination and severance pay rules were also put on hold. The government subsidies and funding of the spring programmes were intended to easy, expedient, and some would say generous. In the fall, C.E.R.B. was ended and a new E.I. model introduced. When legislation is new, rapidly developed and reactive, it is obvious that there will also be opportunities for loopholes and lack of clarity. To date, the number of legal challenges to the many COVID related laws remains fairly low. Nonetheless, one can reasonably expect volumes of case law to be developed over time.
A second area affected by COVID legislation is workplace accommodation for people who are immune-compromised and/or require support as a result of family status(child/elder care): people were granted LOA’s, asked/allowed to work from home, have flexible work schedules. Some people were deemed essential. Occupational, health and safety, and refusal to work issues percolated. The legal professionals dealt with these issues as did the Ministry of Labour.
The question in the background is " What will the new workplace look like post COVID?" Ms. McLeod suggested some things may be here to stay—especially the concept of flexibility. Where, when and how we work may be forever changed and the impact of these changes is yet to be fully realized. It will resonate into fields tangential to workplace legislation. For example, she reflected that home design may alter considerably to create multiple designated workstations in order to accommodate family demand and allow physical separation between work and personal living.
The omnibus legislation, Reopening Ontario Act 2020 is just that – all reaching! Suffice to say, this new legislation will result in some interesting legal challenges as it lines up against the Canadian Charter of Rights and Freedoms.
On balance, we’d say “it’s an interesting time to be a labour lawyer in Ontario”.