Lawyers discuss vaccination policies, electronic monitoring, and the right to disconnect in Ontario

At a time of transition in workplaces around the world, many employers are grappling with the challenges of bringing employees back to the workplace after months or years of closures. At a recent webinar hosted by Norton Rose Fulbright LLP, speakers discussed the relaxation of Ontario restrictions and new best practices for vaccination policies, as well as new workplace policy requirements for electronic monitoring and disconnecting from work.

Although provincial pandemic restrictions have been relaxed, it is still advisable for employers to maintain vaccination policies, according to Tiffany O’Hearn Davies, senior associate in the Toronto office of Norton Rose Fulbright LLP.

“Employers have a legal duty to take every reasonable precaution necessary to protect the workers,” she said during the webinar. “We have seen an increased number of cases in this sixth wave, and it’s easier to enforce a consistent policy than it is to be constantly repealing and re-introducing pandemic protocols.”

Jordan Winch, a partner in the Toronto office at Norton Rose Fulbright outlined three key concerns for employers dealing with vaccination policies:

• They need to be aware of occupational health and safety to ensure they are adequately protecting workers from COVID
• They must also monitor human rights concerns, to make sure accommodations are appropriate
• They must ensure that any information regarding vaccination status of employees, and medical or religious exemptions is stored in a secure manner

In the case of unionized workplaces, employers also need to be prepared for the fact that policies can be challenged on the basis that they are unreasonable, added O’Hearn Davies.

“We have seen some arbitrators find that vaccine policies are reasonable where employees have to go into the office, but if employees are working remotely, requiring them to be vaccinated might not be reasonable,” said O’Hearn Davies. “It is very case-by-case and fact specific, but it does seem like the trend is in support of vaccine mandates and vaccine policies with some nuances, depending on the nature of the workplace.”

In the context of vaccination policies, human rights issues tend to focus on disability, religion or creed.

“Employers have a duty to consider reasonable accommodations for persons who cannot comply with the workplace rule, or in this case, the vaccination policy,” said Winch. “In those cases, the employer will have a duty to accommodate, but only to the point of undue hardship.”

When an employee seeks a medical exemption, Winch recommends that employers provide a form for the treating physician to obtain a medical certificate. In the case of a religious accommodation, the employer is entitled to seek information about the nature of the religious belief to understand how it plays into the exemption request, he added.

“The Ontario Human Rights Commission has said that generally speaking, vaccination policies are permissible as long as protections are in place to make sure that people who are unable to be vaccinated are accommodated, unless doing so would create significant health and safety risks,” said Winch.

Also top of mind for many employers are two new workplace policy requirements in Ontario: the electronic monitoring policy, which received Royal assent on April 11, 2002, with a six month transition period; and the ‘right to disconnect’ policy which came into effect on December 2, 2021 and will be enforced on June 2, 2022.

The electronic monitoring policy applies to employers with 25 or more employees. It must be in writing and must indicate whether or not the employer electronically monitors employees, and if so, it must include a description of how and in what circumstances employees are monitored, and the purpose of this information. It must also include the date the policy was prepared.

“By definition, it could include monitoring employees on a cell phone, or monitoring their laptop usage, or monitoring them through GPS systems,” said Jennifer Hodgins, a partner at the Toronto office of Norton Rose Fulbright, who also spoke during the webinar.

Hodgins encourages employers to start thinking about what they need to cover in this policy, even though it is currently in the early stages.

“It’s certainly not too soon, in my view, to start thinking about what’s in place in your organization, and will it be a significant change to be advising employers of the type of electronic monitoring that’s in place,” said Hodgins. The main goal is transparency, to alleviate employee concerns about how they are being monitored, she added.

The ‘right to disconnect’ policy requires that employers with 25 or more employees have a policy in writing that addresses disconnecting from work. It must include the date that the policy was issued, and it should be provided to employees within 30 days of its creation.

“Generally these policies will not be enforceable under the Employment Standards Act,” said Hodgins. However, there is one exception to this, Hodgins added. “If the policy provides employees with a greater right with respect to overtime or hours of work, then it’s possible that employees could bring a complaint to enforce that greater right,” she said.

When creating a policy employers should reflect internally on what the objectives are as an organization.

“One preliminary consideration is whether to have one policy that applies to all employees across the board, or whether to have separate policies or separate terms within the same umbrella policy to address different categories of worker,” said Samantha Cass, an associate in the Toronto office at Norton Rose Fulbright. For example, it might be advisable to have one policy for management and a separate policy for hourly worker, or for sales staff who may often be out of the office.

“The one thing you have to make sure is that every employee is covered by a disconnecting from work policy in some form or another,” said Cass.