Employment, Labour & Equalities Law Webinar Series | Return to office

Elisa:               Good morning everyone. I see that we still have a number of participants joining but I think we're going to get started with our webinar today. My name's Elisa Scali. I am a partner with Gowling WLG, practicing in the Employment Labour and Equities group and I'd like to welcome you to our third webinar of our six part webinar series being presented by the Employment Labour and Equities group. If you missed our first two webinars on the AODA and mandatory vaccinations we will be posting the link in the chat, if you're interested in viewing those at your convenience. Today's webinar, as you know, is on preparing for a return to the workplace and our speakers today are myself, John Peters, Alycia Riley and Olivier Lamoureux. All of our speakers are members of our Employment Labour and Equities group with practices that focus on all aspects of employment law. John and I practice out of the Ottawa office. Alycia is located in Toronto and Olivier is from our Montreal office. I normally ask our presenters to share something about themselves. A fun fact. But this time I thought I'd do something a little different and I asked them a specific question. If you weren't a lawyer what would you be. So Alycia said that she has a love of Indiana Jones and she would love to be an archeologist. Olivier said without a doubt he'd be a writer. He's been writing since he was a little boy. He writes stories and poems and he still has dreams of being published. John interpreted my question a little bit differently and he said he'd like to be a dolphin because they seem to be the happiest species on the planet, or as an alternate, he'd be Santa Clause because of the free cookies. I, myself, believe in following your passion so I would own a professional shopping business because I can't think of anything better than shopping with someone else's money. But for today we are all employment lawyers and we are happy to be presenting this webinar. I'll just review with you, briefly, the agenda. If we could go to the next slide.

                        We'll be starting with an overview of employer obligations to return employees to a healthy workplace. Next we will be talking about what you should do if you have employees that are refusing to return to work for a number of reasons. Whether it's out of personal reasons, a claim that the remote work is now a term of their employment, allegations of unsafe working conditions or human rights accommodation. We're also going to be looking at permanent remote work arrangements because we appreciate that some employers may be implementing remote work arrangements post-pandemic. So we're going to be reviewing what your remote work policies or remote work agreements should cover. What are the things that you need to consider if your employees are working in different jurisdictions? Then the special considerations for employees working remotely from Quebec where, as you may know, the laws are very different than the laws in our other jurisdictions. I just want to mention before we start our presentation that if you have questions please add them to the Q&A. We will do our best, make our best efforts to respond to your questions. Also, just wanted to mention that the presentation will be made available. It will be emailed to you after the webinar. So let's get started. If we could move to the first slide.

                        Returning your workers to the workplace safely. If you are an employer or considering reopening your workplace and returning your workers to the workplace you must comply with Provincial instruction and guidance on workplace safety, as well as Provincial and local public health and safety guidelines. Today we're going to be focusing specifically in Ontario. In Ontario the two pieces of legislation that we're concerned with our the Occupational Health and Safety Act as well as the Reopening Ontario (A Flexible Response to COVID-19) Act. Next slide, please.

                        Now, before we get into the obligations under these two pieces of legislation, I wanted to stress how important compliance is by reviewing with you the potential penalties that may be imposed if you're found in contravention of the obligations under these pieces of legislation. So under the Occupational Health and Safety Act an individual can be fined up to $100,000.00 or face up to a year in jail for a contravention. Now keep in mind that directors and officers have a duty under the Occupational Health and Safety Act to take reasonable care that their companies are compliant with the OHSA and its regulations. So if a director and officer does not do that they can be prosecuted and if they are convicted they can face those fines and that potential term of imprisonment for individuals. A corporation may be fined up to 1.5 million dollars for a breach. Under the Reopening Ontario Act directors and officers could be fined up to $500,000.00 and also face 12 months of jail time. A corporation can be fined up to 10 million dollars. Now we know that they are monitoring compliance. Just last week there was a restaurant that was fined $10,000.00 for being held in breach of the Reopening Ontario Act. So the penalties can be quite significant for a breach. Now that I have your undivided attention let's review what the obligations are under these two pieces of legislation in terms of return to work.

                        Under the Occupational Health and Safety Act, many of you may already know that an employer has a duty to take every reasonable precaution in the circumstances to protect the health and safety of its workers. What does that mean? That includes a duty to keep your workers and your workplace safe and free from hazards that might be posed by infectious diseases such as COVID-19. So how do you achieve this? The way you achieve this is to assess your workplace and determine what you can do to reduce the risks that your workers will be exposed to the virus. That's where the safety control measures come into play. Implementing safety control measures that will reduce the chance of your workers being exposed. Such as screening, good ventilation, physical distancing, masking, cleaning and disinfecting. Now we're going to get into more detail on those control measures but before we do that, if we could move to the next slide, what I did want to just review briefly is how vaccinations come into play. I'm not going to discuss in detail the requirement of that. Whether you can have mandatory vaccination policies, if that's required to meet this duty under the Act. We dedicated an entire webinar to that which, as I mentioned, the link to that webinar is in the chat. But for today what I wanted to discuss is if your employees aren't vaccinated does that impact the requirement to implement these control measures. That seems to be a valid question given the recent guidelines that we have from the Federal Government which suggests that physical distancing and wearing masks may not be required for fully vaccinated individuals. In some cases, in social settings, they're suggesting that maybe a fully vaccinated person need not mask. Maybe physical distancing is not required. The one thing that I do want to point out though is the Federal Government's made it clear that these are not guidelines that apply to the workplace. We still have to follow the Provincial guidelines for our workplaces. At present in Ontario, I just want to stress that this is current information, this information is constantly evolving. So this is current as of today, employers still need to maintain these workplace control measures, no matter how many people are vaccinated. The reason for that is although there might be emerging evidence that if you're vaccinated you're less likely to spread the virus if you contract the virus, as opposed to someone who's not vaccinated. There really isn't any conclusive evidence on that point right now. So as far as our Ontario Government's concerned, if your vaccinated that means that you're protected from the virus in terms of your symptoms and how ill you may become, but it does not mean that you cannot contract the virus, nor does it mean that you can't spread that virus. So for those reasons we still have to have these safety measures in place. So therefore whether you have 10 people vaccinated, whether you have your entire workplace vaccinated, you still need to implement these control measures permanently.

                        So I'd like to just move onto the next slide and pass it over to my colleague, Alycia, who will be discussing in more detail the control measures as well as the requirements under the Reopening Ontario Act.

Alycia:             Thanks so much, Elisa, and I'm delighted that so many of you could join us by Zoom this morning. So thank you for attending. So as Elisa mentioned under the Occupational Health and Safety Act the employers obligation is to implement control measures within the workplace. Looking at this current slide, and if you have some familiarity with occupational health and safety, this may look familiar to you. So this is a hierarchy of controls model for responding to an identified hazard in the workplace. You can actually use this in response to any identified workplace hazard but the topic here of course being COVID-19. We're going to focus on the use of this model and how to prevent transmission of COVID-19 in the workplace. For frame of reference, this hierarchy model is important to keep in your mind as we continue to go through this presentation, because it informs our understanding of why certain restrictions are in place. So just to go over this at a high level, we see that the hierarchy is an upside down triangle and the reason for that is because it goes from most effective control to least effective. An elimination control is one that physically removes that hazard. An example of that in COVID-19 is a remote working policy. The substitution involves replacing the hazard with a hazard that is less harmful or potentially hazardous to a worker. In the context of COVID-19, for infectious disease substitution, is not really a feasible option. Certainly much harder to implement. Engineering controls involve making physical changes to the workplace to remove the hazards. An example of that could be ventilation, separating workers by using plexiglass, so on and so forth. Administrative controls involve changing the way that your workers perform their work. That can be done through policies, procedures, protocols and last we have PPE, which stands for personal protective equipment. This involves tools or clothing that can be worn by a worker to minimize the exposure to hazards and prevent illness and infection. For example, masks are very common PPE, as we all know. The correct use of PPE can prevent some exposure but it's very important to remember that PPE cannot, and should not, take the place of other control measures. So again, just looking at this hierarchy and keeping it in your mind as we move through this presentation, this should not be used to offset other control measures that should be in place. Shannon, if we could go to the next slide, please. Thank you.

                        We are delighted that we are now in Stage 2. It was so nice Stage 2 applied as of June 30, 2021, so right before Canada Day. I'm sure a lot of you are familiar with the roadmap to reopening but to just go over it briefly, the current Provincial roadmap is a 3-step plan to safely and cautiously reopen the Province, gradually lifting public health measures. The plan is based on currently the Provincial wide vaccination rate as well as improvement in public health and health care indicators. Under step 2 of the roadmap we must all continue to follow public health measures, advice and restrictions. Broadly stated, the purpose of Stage 2 is the further expansion of outdoor activities, resuming limited indoor services with small numbers of people and with face coverings being worn. As Elisa mentioned earlier the guiding legislation for the COVID-19 reopening plan is the Reopening Ontario Act. More specifically for Stage 2 we have regulation 263/20 and that applies for businesses, again in Stage 2. It is a 37 page document so unfortunately we don't have time to go through all of the measures today under step 2 but you can look for it online under Ontario e-Laws or you can Google it if you'd like to review it in more depth. Broadly, this regulation for step 2 is divided into 4 schedules. So we have general requirements. We have specific rules for various industries. A schedule pertaining to organized events and public gatherings and the last schedule applies to individuals who are eligible for emergency child care. Keep in mind that not all businesses and industries are listed under Schedule 2 of this regulation because some businesses will have already been permitted to open during the shutdown zone and Stage 1 phases, which are covered under a separate regulation, and that's regulation 82/20. So for example that regulation refers to financial services, pet services, staffing, so on and so forth. However, even if you were operating and remaining open during the shutdown zone and Stage 1 phases, you should still consult the Stage 2 regulation as there may be some additions for your industry that you'll want to be aware of. Then for those who are operating in specific industries there can be also separate regulations under the Reopening Ontario Act. That pertains specifically to long-term care facilities, retirement homes and the health care industry. We won't have time, as I mentioned, to go over all of Schedule 2 but for your own reference the main sectors that are covered under that Schedule are food and drink services. So libraries, community centers, also shopping and retail, education, sports and fitness, outdoor recreational amenities, camps for children, media industries, entertainment and that includes amusement parks, racing venues, tour and guide services, campgrounds and etcetera. Just moving onto the third point here. The third point here is that certain businesses under this regulation are permitted to reopen but only if they're meeting all of the restrictions specified. So that means meeting both the general requirements under Schedule 1 and any industry specific requirements under Schedule 2. If the business is not fulfilling all requirements they must remain closed and there are some exceptions that apply if the business is preparing to reopen or is otherwise open for inspections, maintenance, but generally the rule still is if you're not following these restrictions you need to remain closed. Having said that, there are no prohibitions on a business operating remotely for the purposes of providing goods by mail or other forms of delivery, or making goods available for pickup and providing services online. On this last point here, this is outlined under the general compliance requirements in the regulation. So Schedule 1, section 2, and in my view it's the most important. It says here that the person responsible for business shall ensure that the business operates in accordance with all applicable laws, including the Occupational Health and Safety Act, as well as the advice of public health officials and the Chief Medical Officer of Health, including recommendations on physical distancing, cleaning, disinfecting and screening. This is substantially the same as the requirement that applied to businesses that were open during the shutdown zone and Stage 1. As Elisa noted earlier the employer's obligation under the OHSA, as broadly stated, to take every precaution reasonable in the circumstances for the protection of the worker. Which is a very vague and onerous requirement. But more importantly, in my view, is we have this new requirement here about following the advice of public health officials and the Chief Medical Officer of Health, who is the newly appointed Dr. Kieran Moore. What this regulation does, it effectively gives their advice the force of law. More specifically the regulation requires compliance with directions from the Chief Medical Officer on passive screening, which includes posting signs, also active screening for employees and with these particular restrictions or requirements in place, if you're not already doing so, you should be actively scanning sources every day. Perhaps set a reminder for yourself or sign up for updates online to make sure that you are up to date on what the public health official guidance is. Again, as Elisa mentioned earlier, we're seeing changes on this every day so that's why it's so important to check it often. Some of the sources that you can be reviewing include regional and local public health websites. Municipal websites are also very important too because many municipalities will have specific bylaws in place for businesses which don't always match the Provincial guidelines. Sometimes they can be even more restrictive so it's important to make sure that you're checking those as well. Other helpful resources to help you stay informed would include the Ministry of Labour's website, the Ministry of Health which has also published very helpful screening questionnaires and tools. If you are a member of a professional or an industry association, a lot of associations have been publishing helpful content for businesses to follow. If you are a member of a regulatory body and you have a college, following the directions of the college and their website regularly, also very important. I also put the workplace safety and prevention services website so that's wsps. They have published a lot of resources, tips, best practices for safely reopening your workplace and that includes sector specific guidance. Last, but not least, certainly also consider looking at the Canadian Centre for Occupational Health and Safety which has published a lot of helpful materials. Next slide, please, Shannon.

                        As I mentioned these are the general requirements under the Stage 2 regulation. They largely mirror what was permitted for businesses, or required I should say, during the shutdown zone and Stage 1. So this first bullet point here, yes, work from home is still a requirement in Stage 2. Specifically, what the regulation requires is that each person responsible for a business or organization that is open shall ensure that any person who performs work for the business or the organization conducts their work remotely, unless the nature of their work requires them to be at the workplace. There is an exception for government and publicly funded organizations that deliver government services but for all other employers who don't have a lot of guidance on what it means for the nature of your employee's work requiring them to be on site, very easy to conceptualize that with certain businesses. For example, retailers with store locations. If you operate a restaurant. It's a lot more difficult to conceptualize when we have office space jobs because most of us have found a way to work effectively from home. There really is no one size fits all solution when it comes to critically assessing the nature of whether or not an employee's work requires them to be in the work place. But one starting point may be to review the job description prepared for that role and considering the degree of integration that that particular position has with the on site work of the business. The other important consideration can be potentially human rights and also mental health considerations when employees may say, "I need to come into work because I am not able to focus on my job at home." and so that can also trigger other considerations and that involves more extensive analysis. The requirement of the regulation also repeating what was required during the shutdown zone and Stage 1 is a COVID-19 safety plan and that is a requirement under section 3.3 of the regulation. So every person responsible for a business that is open must prepare and make available a safety plan in accordance with the regulation no later than 7 days after the requirement is advised. With it being July 7 and Stage 2 commencing on June 30, everyone who's currently open should already have this in place. As we'll touch on in a few minutes the safety plan needs to describe the measures and procedures which have been implemented to reduce the transmission risk of COVID-19. Again, that's screening, physical distancing, PPE, prevention of crowding, so on and so forth. For particular industries under Schedule 2, there are some heightened requirements as well. If the nature of the business should be that it could be enhanced crowding could be possible. So if you have a business that operates in physical fitness, sports training, outdoor theatres, cinemas, museums and galleries, so on and so forth, you will definitely want to consult Schedule 2 of the regulation as well because you can have heightened requirements to include prevention of crowding measures in your safety plan. Also important that your safety plan be made in writing and available upon request. Particularly ensure, of course, that employees are trained on it but make sure that employees know where it is located, especially if you do have a public health inspector conduct a workplace inspection. You should also post it on your website as well. A lot of my clients have said that they've found it very helpful to let their customers know what measures they're taking to prevent the transmission of COVID-19. You also do need to ensure that a copy of the plan is posted in a conspicuous place where it's likely to come to the attention of those working and those attending the business. So ideally you should be posting your COVID-19 safety plan at your health and safety board at work as well as public entrances. Passive and active screening. Passive screening includes providing signs at the entrances of work establishments to ensure that individuals know how to screen themselves for COVID-19. Active screening is still a requirement for your employees and enhanced active screening can apply in certain industries such as rented event spaces and restaurants. Where practical consider implementing active screening as a best practice for all individuals who are entering the workplace, not just your employees.

Moving on to masking and physical distancing, it is still a requirement in any indoor premises including a vehicle unless there is a masking exception under the regulation. That can include accommodation under the code, the AODA, having a medical condition or, if the person works in an area that is not publicly accessible and they are at least 2 meters away from other people. So if the employee is attending the workplace and they have a private office that could be a good example of when they would be no longer required to wear their mask. However, then you want to make sure that you're consulting Municipal bylaws because sometimes the bylaws can be more restrictive. For your cafeterias and your lunchrooms, be mindful of the fact that there is also a requirement for plastic glass barriers and physical distancing if a mask is removed to consume food or drink. So there's a couple of different ways, of course, that you can approach this. You can either consider staggered lunchbreak times or also perhaps asking the employees to eat their lunch at their desk to ensure that you don't have to install any additional barriers. Masking and physical distancing requirements do also apply to line ups inside the place of business and outside the place of business, the line ups must have physical distancing maintained as well. It's nice under the regulation that the masking requirement does not only apply to businesses but also to individuals when they are attending a business. In other words, it is everyone's responsibility to wear a mask and to maintain physical distancing from each other. There's relatively limited guidance on PPE requirements. Under Schedule 1 the only specific one is that a person must wear PPE that provides protection for the eyes, nose and mouth. So for example, face shields, safety glasses and goggles if a person is within 2 meters of a person who is not wearing a mask within an indoor area, or is not separated by plexiglass or another impermeable barrier. So again, keep in mind that the employer's obligation is to take all reasonable precautions. So if the nature of your workplace requires enhanced PPE protocols you will want to include this in your safety plan. Indirectly we can apply the PPE requirement to providing masks for employees who do not attend with a mask at the workplace.

Capacity limits are an important part of the Stage 2 regulation as we begin to reopen and have more members of the public attending indoors. The general requirement is to limit capacity of any business or facility that is open to the public to 50%, unless otherwise specified, and the requirement also ensure that members of the public can maintain physical distancing of at least 2 meters. If you're not sure about how to calculate the capacity for the particular work site that you are looking at there is a formula available in the regulation. But the other thing to be mindful of is that under Schedule 2 there can be further restrictions depending on the type of business that you have. So Schedule 2 has broadly been divided between essential and non-essential retail. Essential retail has a bigger capacity than non-essential retail at this time. Also certain venues, concert venues, theatres, cinemas, museums and galleries, they are limited to 25% capacity. Once you've calculated your capacity limit you should be posting a sign that's available to the public to specify what the capacity limit is. This is important for two reasons. One, in case you do have a public health inspector attend at the workplace to make sure that you are compliant, but it's also very helpful to members of the public as well, particularly when you are dealing with smaller public facing spaces. For example, if your capacity limit is two and that you have a sign posted it would be much easier for a member of the public to quickly verify whether they are going to make your business exceed the capacity limit, and if so, they're probably going to wait outside and wait for your one of your patrons to leave. So it's helpful for them as well.

Another interesting part is that certain businesses, such as shopping malls, due to have no loitering requirements under the regulation. But as a best practice you should consider applying it to all aspects of your business when interacting with the public. Again, that's part of the requirement in terms of elimination of hazardous measures so, generally speaking, the less contact that you have the lower the risk of transmission.

Under this cleaning requirements, the requirement under Schedule 1 is to ensure that washrooms, lockers, change rooms and similar amenities are cleaned and disinfected as frequently as necessary to maintain a sanitary condition. There's also a requirement that any equipment provided to members of the public must be cleaned and disinfected as frequently as necessary to maintain a sanitary condition. So what's been really helpful for a lot of our clients are to kind of assume the role of a patron and figure out what items are you touching as you go throughout a particular place of business. That could include your for sale terminals, self-check out stations, key signature pads, carts, baskets, so on and so forth. For those particular tools that apply when a member of the public is present you do need to make sure that you have additional cleaning.

I see we have a question. Yes, sorry. We did have a question about providing links to the regulation. Absolutely, happy to provide that to you.

On contact tracing, there are some requirements for contact tracing with respect to specific businesses. Most commonly rented meeting spaces, food and drink, but as a best practice you should consider implementing contact tracing for all members that are visiting your workplace.
The reason why you want to do that is just because it's part of making sure that your workplace remains safe for employees. If there has been perhaps somebody who has attended the workplace recently, maybe even not an employee, but you later learn that person's contracted COVID-19 you now have the tools to make sure that you can help prevent the risk of any further spread. Now, where it's required, records must be kept for at least a month and can only be disclosed to a medical officer of health or an inspector under the Health Protection and Promotion Act. So keep in mind that guest contract tracing is a fantastic initiative and definitely something worth implementing, however, you are collecting and retaining personal information so you do have an obligation to ensure that that information is being kept safe.

Last, we do have limits on social gatherings and events. Generally it's 5 persons indoor, 25 outdoor and under Schedule 1 there are also special requirements for rented meeting space, tents, canopies, live entertainment, professional and elite amateur sports. Unfortunately we don't have time to go into all of that right now, but if that sounds like it might apply to your workplace, then please do take a look at the regulation. If we could please go to the next slide, Shannon, thank you.

Okay, so we know what's happened with Stage 1. We're currently in Stage 2. What's going to happen in Stage 3? The Province's current benchmark for Stage 3 status is 70% - 80% of adults vaccinated with one dose. 25% vaccinated with two doses. This metric might change so the current guidance as noted in the first bullet point is the Province is going to remain at each step for at least 21 days to evaluate any key impacts on public health. Even if we have obtained that vaccination rate, if there are certain key indicators that suggest that we could be headed for another increase in COVID cases, then the circumstances could change very quickly and we might stay in Stage 2 a little bit longer. There was also a recent article in the Toronto Star that indicated new figures, showing the majority of Ontarians who recently contracted COVID-19, were not vaccinated compared with about, according to that article, 15% partially vaccinated and 1.2% fully vaccinated. So with metrics like this, as they continue to come out, it is also possible that the Province will increase vaccination rates before moving onto Stage 3. What I've read most recently in the news is that Ontario's new Chief Medical Officer of Health is not in a particular rush to move to Stage 3. So while we're all very hopeful that we might be at Stage 3 by the end of July it really is subject to change at a moment's notice. In terms of the restrictions that are going to apply, we don't know 100% and that's because the regulation could be changed very easily. To give an example, the Stage 2 regulation has been amended about 30 times since it was first published, so it can change very rapidly. There could very well be a change right before we move into Stage 3. But based on what is currently available we see the creation of the three colour coded zones with increasing degrees of restrictions. We have green, yellow and orange.

The remote working requirement, there's a noticeable change in knowing which that is currently under the regulation. So we have the person responsible for a business, that is open, shall operate the business/organization in compliance with any advice, recommendations and instructions issued by the Chief Health Medical Officer or another public health official on working remotely. Again, Stage 2 was you should be working remotely unless the nature of your work requires you to be in the workplace. Under these regulations, as they presently stand, we do see a noticeable change here in the language. It is possible that the recommendations will change as we get to closer to Stage 3 but right now what we're seeing is the that current guidance is still work remotely if at all possible.

Are there going to be any material changes in safety measures? What we're seeing in the Stage 3 regulation, currently, the answer is no. There's still going to be a requirement for general compliance with the OHSA, following public health recommendations and that includes screening,  postings, masking, physical distancing, having your safety plan, capacity limits. So everything that you've been using in Stage 1 and 2, be prepared to keep using that in Stage 3, unless we have further guidance from the government telling us that we can do otherwise. So those are all the points that I had on the Stage 2 regulation. I'm going to pass it back to Elisa to discuss your work COVID safety plan.

Elisa:               Thank you, Alycia. So the workplace safety plan. The Ontario Government has posted a template on its website, and you'll see the link there in the PowerPoint, and if we could just move to the next slide. It is just a template. It's a bare bones template which basically sets out 6 key questions that they're recommending that you address in your workplace safety plan. The workplace safety plan is not a one size fits all so you're not going to find a cut and paste template. You're still going to have to do the work in terms of creating a plan that's unique and addresses the risk exposure in your specific workplace. So the 6 questions that they're suggesting that should be addressed in the workplace safety plan are: How will you ensure all your workers know how and are able to keep themselves from being exposed to COVID-19? How are you going to screen for COVID-19? How will you control the risk of transmission in your workplace? What will you do if there's a potential case of COVID or suspected exposure of COVID at your workplace? How will you manage any new risks caused by changes in the way that you're operating your business as a result of COVID-19? How will you make sure that that plan is working? These are all things that you need to consider and include your plan. I will review briefly some points on each one of these questions. I don't want to spend too much time on them but if we could move to the next slide.

                        How are you going to ensure your employees know what to do? Well, you have to inform them, train them and educate them. You should post information in your workplace. Provide training and instruction on the safety measures, the hygiene practices, the proper masking. Do your best to present the information in a way that's easy to understand. Government has tons of excellent resources that use images and graphics that are easy to understand. So suggest that you access and use those resources. Send out frequent reminders and updates to your employees just so that it's always top of mind. As we've mentioned numerous times already, it's important to stay informed because this information is constantly and evolving. So think about whether you should have a point person that's responsible for staying up to date on all the safety guidance because if something changes then you might have to adapt your strategy. Once you have that new information you should share that with your employees. So consider do you hold a town hall where you share the new information and make it an open forum where your employees might have the opportunity to ask questions and make comments. Next slide. Thank you.

                        Your safety plan should set out the guidelines for COVID screening. I'm not going to review them. Alycia's gone over them. Again, best practice is to do the active screening but it's not required for third parties, such as clients, suppliers and couriers. So you can still assess whether active screening is necessary, and if you don't feel it's necessary, passive screening would be acceptable with posted signage posted outside your workplace. But for employees, again, COVID screening necessary before every day that they attend at your workplace. How you do the COVID screening is up to you. You do what works best for your organization. Some employers are using the assessment tool that the government has online and has their employees email the results. You may have your own questionnaire that employs submit by email. You might create an app. There's many different ways that you can conduct that screening. One point that I did want to make in terms of active screening, if you have employees that are responsible for the active screening then they should be trained on what they need to do, if someone doesn't pass the screening. So make sure that they let the person know that they're not allowed to enter the workplace. That they should return home and isolate, and then contact public health or their doctor, to determine whether they need to have a COVID test and anything else that they might need to do in those circumstances. Could we move to the next slide, please?

                        How will you control the risk of transmission in your workplace? So this, again, is the control measures. You have to assess your workplace to determine how best to manage these risks and reduce the transmission within the workplace. So obviously physical distancing. If you could maintain physical distancing at all times that is ideal. You have to look at how your workplace is configured and think about what you need to do. Do you need to modify the layout of your work space? If you have a lunchroom do you need to separate the lunch tables? Have one chair at a lunch table. Look at your meeting rooms. What do you need to do to maximize the possibility of the physical distancing in those areas? Do you need to limit the number of people in rooms that are shared? Such as your lunchrooms and washrooms and if you do do that, have posted signs which shows what the limit is for entry into those shared spaces. Think about whether you should no longer hold large team meetings or huddles if you're not able to physical distance and think about whether those can be done virtually. Again with the plexiglass, Alycia mentioned that, where you can't physical distance. If you have cubicles think about whether you need to install that plexiglass between those cubicles. Think about staggering your work schedule so that not everybody's entering the workplace at the same time so you can avoid overcrowding in your common areas and your elevators and your lobbies. So those are just some things to think about. Because physical distancing at all times is not going to be possible, employees will still need to mask, as Alycia mentioned and so the protocol for masking should be clearly laid out. Obviously if you can't maintain that physical distance you have to mask, but think about whether you have a policy that requires masking while they're on the move in your work space so that if they're in the hallways, if they're in the elevators, if they're in the washrooms, that they ensure that they're masked. Because you never know when you might be crossing paths with someone and not be able to maintain that distance. Again, this seems like everyone should know how to use their mask by now, it's important to still remind employees that the mask should be covering your mouth, nose and chin. So reminders like that are also important and you should implement those in your plan.

                        Enhanced cleaning and disinfecting. You should have a protocol in place for the cleaning and disinfecting. Think about high touch surfaces. Should you be limiting the usage of those high touch surfaces? Should you be not allowing the use, or discontinuing the use, of your refrigerators, your coffee pots, your kettles, or do you implement a cleaning protocol so that employees understand that they need to sanitize after every use? Similar to other equipment that is used regularly like photocopiers, printers, etcetera. So you should implement, think about what you need for a cleaning protocol, and include that in your safety plan.

                        Heating, conditioning, air ventilation, this should be well maintained. You should have high efficiency air filters. These are things, if you're leasing space, you may not have control over but as an employer you should make your best efforts to make inquiries with the building owner to ensure that they are maintaining the heating, conditioning and air ventilation in an efficient and effective manner.

                        Finally, encourage hygiene and respiratory etiquette. This also seems fairly common but train employees on personal hygiene and respiratory etiquette. Post signs reminding people to wash their hands. Make sure that you have a good supply of soap and single use towels next to sinks and then hand sanitizer throughout your workplace. Next slide, please.

                        What do you do if you have a suspected exposure to COVID-19 at your workplace? You have to develop a plan and protocol to deal with the suspected exposure. These steps that you see in the presentation are steps that are recommended by the Ontario Government. Excluding the person from the workplace. Contacting public health for direction. Having clear guidelines on self-isolation and return to work based on what the Provincial guidelines are at that time. Informing any employee who may have been exposed that they may have been exposed without disclosing the identity of the infected person and your reporting requirements. Have a protocol in place to ensure that reporting gets done. Ministry of Labour, you have to report within 4 days. WSIB, if it's applicable, you have to report within 3 days. You should also be reporting it to your health and safety representative or your joint health and safety committee. The one thing that I just do want to point out for step 1, excluding a symptomatic person, there may be a situation where someone becomes ill at the workplace and they think it might be COVID. That person might not feel well enough to leave the workplace immediately. So what do you do in those circumstances? You should think about having a room, an isolation room, where that person can go to self-isolate until they feel well enough to leave the workplace. You should have someone who is a manager, who is on hand during all your working hours, so different people obviously. We have to be tasked with this but to be responsible, if an incident like this occurs, to know what to do if they have to have that person isolate at the workplace. So they need to be aware of the protocol. Next slide, please.

                        How will you manage any new risk caused by changes to the way you operate? This is a question about your doing things differently because of COVID-19, does that impact how your managing certain risks? So if you have a new procedure like using a disinfectant, and there are rules regarding the safety and the use of that disinfectant, you might have to train your employees on the usage of that disinfectant. Are there other plans and protocols that might need to be adapted because of COVID-19? So for example, emergency evacuation. Is it going to be possible to physical distance during an emergency evacuation or do you have to put in a protocol in place to make sure everybody's masked in the event of an emergency evacuation? Next slide, please.

                        So finally, how will you make sure your plan's working? So the best advice we have is to have  COVID response team that will meet regularly and take charge of your COVID-19 related issues. Involve your health and safety representative, your joint health and safety committee, in evaluating how well your plan is working. Monitor active confirmed cases, potential cases, to see whether there are any trends that need to be addressed and your safety plan has to be somehow adjusted to deal with those. Consider surveying your employees to get their feedback and ideas. Finally, very, very important, review and update your safety plan regularly to ensure that it's up to date. Again, we can't stress enough that the health and safety guidance can change, and it does evolve quite quickly, so you have to ensure that you're in compliance with those new requirements and your safety plan addresses them.

                        That is the end of our first part of our session on returning to the work place safely. We're now going to move into the second part of our session where we deal with situations where you're ready to come back, you're asking your employees to come back but some of your employees are saying, "No. I'm not ready to return. I don't want to return." and they have various reasons why. So I'm going to hand it over now to John and he will start our discussion.

John:               Good morning everyone. As Elisa's stated I'm going to talk to you about employees who refuse to return to work on certain grounds. I'm going to talk about, first of all, employees who are going to be fearful to return to work. We have to remember the context that some of you, as employers, have employees who have been working throughout, they may be frontline workers or working in grocery stores and they've been working throughout but, many of have you employees who have not been at work since March 13, 2020. So they effectively have been socially hibernating in their dens, and for some employees, you're going to have to try and convince to come out of their den. Many of you will be instituting a graduated return to work plan, maybe starting as early as September where you may have in the first stage encouraged employees to come, and then maybe in January expect employees to come back to work. But you're going to have to deal with employees who are fearful. Again, it's not addressing the issues of employees who just prefer not to come to work and think they have a right to remote work on a permanent basis, Alycia's going to deal with that in a few moments. I'm addressing the real situations where employees are fearful. That fear may actually be to such an extent that it may constitute a disability where they are just to anxious. Again, they haven't been out of their homes since March 13, 2020, and they will be fearful. They will be fearful in different areas. The first thing, as the lowest hanging fruit, is fear based on the commute. Of course throughout the pandemic public transit authorities, whether it's the TTC in Toronto, OC Transpo in Ottawa, and other public transit authorities across the Province have been taking measures throughout the pandemic to make sure that it is safe to ride. So all the things we've already talked about; wearing a mask, social distancing, washing hands, all come into play with respect to the use of the public transit. There's also recommendations from different levels of the government, and these public transit authorities, that perhaps employees will be fearful, especially in rush hours, about getting on a train or on a bus, or using a ride share service or commuting with other people. With respect to public transit you may entertain, and may be flexible as an employer, to allow for your employees to commute during off-peak hours. That way they may not be facing huge crowds at train stations or bus stops or in trains or buses.

                        The next issue that these hibernating employees might face will be actually returning to the office and actually getting into the office. If you work in an office building and using elevators. Currently there are, and there have been throughout the pandemic, restrictions with respect of elevator use. Those return to work safety plans are governed by your landlord, typically, but there will be protocols in place, directional signage just to get in and exit the building and the number of people that are allowed in the elevators at any time. That also gives you another reason to allow flexible commuting times because you don't want all your employees arriving at work at 8:00am or 9:00am, necessarily, because by the time they get up to the office it could be 10, in any event. Then there's the fear in the office, generally. Again, I'm going to continue along the hibernation or the person coming out of their den for the first time, may of these people have even been in grocery stores. They've had groceries delivered. When they get back to the workplace they will be confronted with plexiglass. They will be confronted with directional signage so they won't be able to just walk up and down halls unnecessarily, free will. They will be confronted with the necessary social distancing, mask wearing so you have to be prepared to, as Elisa has stated, inform, train and educate your employees on an ongoing basis because things will move. That's going to be a challenge for some people and some people will still feel quite anxious about coming back to the office.

                        Thirdly, a real concern that we have is that people will be concerned and fearful if people are not vaccinated. The current projections are 14% of your work force will not be vaccinated and may never be vaccinated. On the news today they were also talking about younger people in their 20s and 30s who have a lower rate of vaccination or have a more tendency not to be vaccinated. I'm not going to get into the mandatory vaccination policy. We've already talked about that but the reality is that you're going to have employees who are back. Some will be vaccinated. Some won't be vaccinated and there will be a fear, whether rational or not, with respect to working with employees who may not be vaccinated. It's important to also note that even if you're vaccinated, of course you're not 100% immune from COVID-19, nor are you immune from transmitting it if you do it catch it. Although there is not typically a prohibitive ground based on fear in Ontario there is in Nova Scotia. Next slide, please.

                        So you'll see under the Nova Scotia Human Rights Act, no person shall, in respect of employment discriminate against an individual, or class an individual, on account of an irrational fear of contracting an illness or disease. That is unique within Canada. As an Ontario employer you wouldn't be subject to this legislation or you might be if you have an employee who actually works normally in Ontario but has, during the pandemic, gone to their cottage in Nova Scotia. We're going to talk a little bit about that later when we talk about employees working in remote places outside of the Province of Ontario. We should also note that this clause, and just these issues in general, will apply to not just people who are fearful of getting COVID-19, but you're going to have a certain membership of your population of your work force that will be fearful of getting the vaccine, and not getting the vaccine because they're fearful of becoming ill if they do take the vaccine. Next side.

                        Our clients are asking, can employers insist on knowing if someone is vaccinated? Again, absent of mandatory vaccination policy which should be restricted to very specific areas such as long term care homes, you don't have the right to require vaccination in the workplace. If you don't have that right then there is no need to know whether someone's been vaccinated or not. Certain members of your workplace will not be vaccinated because of a disability. Some will not be vaccinated because of religious beliefs. Some will not be vaccinated because they fear the vaccine. There are privacy considerations when dealing with fear. People do have the right to their privacy and we have to remember that taking the vaccine is actually a medical procedure. Typically you don't require your employees to disclose whether they've had a medical procedure or not. Having said that you may ask, and you should ask as part of your return to work plan, just generally speaking whether employees need any form of accommodation without asking, again, are they suffering from a certain illness or what is their religion. Things like that but you can ask for accommodation, and you have to be flexible with your employees with respect to these requests for accommodation, and even with employees who just say, "I'm just too afraid to come back right now." Again, your obligation is to inform, train and educate and you want to let them know that you will be flexible with respect to their gradual return to work. Then of course do employees have the right to be advised and does an employer have an obligation to advise who is not vaccinated? The answer is employees don't have that right. You should treat vaccination issues, or whether someone's been vaccinated or not, like you do as Elisa has stated with respect to someone who's been tested positive for COVID-19, you don't disclose the person who has not been vaccinated. You don't disclose the person who has been tested positive. You do disclose in the case of testing positive, you have an obligation for contact tracing, to disclose people who may have been around that person in a certain location at a certain time.

                        That's my presentation on fear and I'm going to hand it over to Alycia.

Alycia:             Thanks, John. So for all of us who have been working remotely for the past 15 to 16 months, it's very possible that when it comes time for employees to return to the workplace, they might take the position that working from home is now a term of their employment and therefore they are not required to return to the office. While we would like to say that it's as simple as no, the expectation is that you will be in the office and we'll see you effective the return date that we specify, unfortunately it's not that simple. When you're facing these types of requests from employees there is a bit of a multi-faceted analysis that you need to undertake. So the first being when was the employee hired? If their employment predates COVID-19 it is very likely that their employment contract, the written agreement, will not have any thing pertaining specifically to remote working, unless that was their work set-up all along. But if they've been hired within the COVID-19 period, you do also want to make sure that you've reviewed their employment agreement to make sure that it has that necessary wording in there, about remote working being the temporary expectation not the permanent expectation. Beyond that, if you have been very, very clear with your employees that remote working is a temporary thing, and that you will resume in person in office operations once the government restrictions change, then as an employer, yes, you do have a reasonable basis of course to insist that your employees return to work. However, we encourage you please do review all of your protocols. A lot of times employers think that their expectations have been very clearly set, and from the employees side they might find no, it's actually not clear to me that this was only supposed to be temporary or that I'm now obligated to return to the workplace. The other thing that you'll want to do, as the employer, is to check in with management and specifically the employee's direct supervisor because it's not uncommon that the employee has had a conversation with their manager, offline, and that manager could have very well, either in writing or verbally, made a representation to the employee that, yes, you can absolutely stay work from home as long as you like. It's not a problem. So if that's the case the employee might say, "Hang on a second. I've been told this and I've now relied upon it." So that's another consideration to look out for as well.

                        Lastly, we also want to take a look at what has been done for other employees and particularly if the employee that is bringing forward this concern has a small working group, you know, 6 to 8 people, of course they're not entitled to know if somebody is having a medical work accommodation of course, but they might look at it and say, "Okay. Why is that I'm required to return but 6 of my colleagues are not required to return?" You just want to be mindful of that as well just because they could be bringing forth concerns about potential workplace harassment from their supervisor, so on and so forth. To sum it all up, as long as you've been very, very clear that the expectation is remote working is temporary, return to your office as soon as it is possible and safe to do so. You should be fine. If not, then you do need to think again before you just tell that employee that, yes, you're 100% required to return to the office. If we could go to the next slide, please. I'll pass this back over to John who's going to discuss this topic.

John:               I'm back. There are issues with respect to employee's rights and with respect to employer's duties to their employees. Under both the Ontario Occupational Health and Safety Act and if you're a Federally regulated employer, under the Canada Labour Code you have, as we have alluded to throughout this presentation, you have the duty to take every reasonable precaution to protect employees. Actually the legislation talks about workers because it's not just your actual employees but anyone who works for you at your workplace which would include independent contractors. The converse, in respect of that obligation, employees actually have the right to refuse unsafe work. Under section 43 of the Occupational Health and Safety Act, or section 124 of the Canada Labour Code, there are specific issues with respect to COVID and I sort of alluded to them in my fear slides. But you may come across employees who don't think the employer's doing enough. Whether it's with respect to your work safety plan or with respect to your admission of having employees, again, who are unvaccinated. I don't want to overemphasize this but we have to be very careful. We're living in unprecedent times and we have to be very careful with delineating between those who are vaccinated and unvaccinated. I know today it's normal occurrence to say, "Have you been vaccinated and if so did you get your second shot? How did you feel? What did you get?" Those are the things that we say to each other all the time but when you return to work it probably isn't proper etiquette to do that. You will have employees who will be fearful of the unvaccinated, and it's odd that they are, because it's actually the unvaccinated employees who are at greatest risk because they're not vaccinated. But in any event, under the Occupational Health and Safety Act and under the Canada Labour Code, employees have the right to refuse work.  Under the Occupational Health and Safety Act, if the employee feels that their workplace is unsafe, they need to notify the employer. The employer has to investigate with a workplace representative. An employee representative or a management representative. They must address the issue and try and resolve it and have the employee return to work. If the employee still feels it's unsafe they may have the right to continue to refuse to work, or to do particular work, and at such time the employer has an obligation to contact the Ministry of Labour. An inspector will come in, do an investigation, make an assessment and make a change or issue an order and then the employee should be able to feel safe returning to work. Having said that, employees may still refuse and that will be a difficulty that you will have to address. We don't expect, to be fair, we don't expect that employees will be invoking their rights under section 43 of the Occupational Health and Safety Act but you have to prepared for people that will be concerned. Again, I think one of the big concerns will be this issue about people who are not vaccinated and employers will have to address that.

I've also slid in another piece of legislation just because I love to provide law. I just want to give a shout-out to the Employment Standards Act that you should be aware of because people still have the right to either paid infectious disease for 3 days, but they actually have the right to infectious disease and emergency leave. That right is based on reasons related to COVID. You may know those 5 reasons whether they're under an order, whether they need to quarantine, whether they've been exposed to someone and whether they've been sent home because the employer is concerned that they may expose somebody at work. For all those reasons they have that right to not to work and to be on infectious disease and emergency leave and that right continues until September 25, 2021. That's it for me. I think I now hand it back to Alycia?

Alycia:             Yup, thanks, John. A combination of code protected grounds. We saw this a lot with our clients in the shutdown zone and Stage 1. Employees may seek return to work with exemptions based on grounds that could trigger protections under the Ontario Human Rights Code. In dealing with clients most common Code protected grounds that we've seen include disability, illness, marital status and family status. For example, if the employee identifies as having a disability that may make them more susceptible to contracting COVID-19, or if they live with a vulnerable person who may contract COVID-19 more easily, and health care obligations. There've also been some very recent and disturbing events that may trigger need the for accommodation requests on the basis of race, ancestry, place of origin and ethnic origin. What I'm referring to there is there's been a surge in targeted racism in response to COVID-19. We have seen lots of coverage regarding anti-Asian racism, anti-Indigenous racism. With the more recent Delta variant we have seen instances of xenophobia and exclusion of minorities in that regard as well. So it is possible that an employee, before returning to work, will come to the employer and say, "I'm very fearful about returning to work because of these instances of targeted racism and I identify as a member of that group." This can actually trigger two considerations. We have the OHSA requirements regarding workplace harassment and workplace violence and we also have Code protections and violations if an employer fails to respond to that employee's concern. With specific regard to that the approach will vary depending on the circumstances, but as we've been saying throughout this presentation, the key really is open, active communication with the employee. Implement a seek to understand model, citing a generalized fear of racism resulting from COVID-19, may not trigger a need for accommodation under the Code but you should still be implementing and having that dialogue with your employee to allay their concerns. The other aspect is if an employee were to bring forward a concern about perhaps a very specific individual, perhaps somebody that they work with and they are now aware of the fact that one of their colleagues has posted certain things on social media and it makes them concerned, then that will trigger an employer's obligations to investigate under the Code and the OHSA, and the form of accommodation that might be appropriate in those circumstances might be permitting the complainant to remain at home, but more likely also placing the respondent on an administrative leave or asking them to work from home, pending the outcome of an investigation. Generally speaking the onus is still on an employee to request accommodation. If there are circumstances that suggest an employee may require accommodation, the employer should, again, seek to understand. You have a duty to make inquiries. If the employee let's their manager know, "I'm not safe returning to work." then that would prompt the question, "Okay. Why is that you don't feel safe?" They might then disclose that it is because they have a sick parent or a spouse or that they have a disability that makes them immunocompromised, etcetera. Once you've understood where that concern about return to work is coming from, then you can undertake the analysis of is there an accommodation requirement, and if so, how do we accommodate that employee? If the employee identifies that they are immunocompromised, they have a disability, that they have a concern where they might contract COVID-19, or if they do live with a vulnerable person, the starting consideration should be whether or not that employee has the capability to work from home. If so, absent extenuating circumstances, it's probably best to permit them to stay working from home for the time being, and then you can continue to reassess and accommodate that employee as things over the course of the pandemic continue to change.

                        As John mentioned, there is also the entitlement to the infectious disease emergency leave and so if the employee's unable to work from home, they may actually request a leave of absence if they are providing care and support for an individual. It is important to be mindful of the fact that if they're saying they do not want to return to work they still may have that entitlement. In the event that the employee identifies a genuine need for accommodation, so they do have child care obligations or as I mentioned they've identified a disability, the employee still has an obligation to cooperate in the accommodation process. They need to be prepared, for example if they do live with somebody who is immunocompromised, the employer may need to ask questions. Not about the diagnosis but to understand what is the risk to that vulnerable person, and if so, how is that we best address those particular medical restrictions that the employee, a spouse or the other vulnerable person has. In the framework of I'm not returning to work, yes, that is an accommodation option that the employee can continue to work remotely. But it's not the only form of accommodation that you can offer. So there might be considerations for ensuring that everyone who works with the employee remains fully masked at all times. Perhaps allowing the employee to return to work, but making sure that they have a separate working space so that they can limit their risk of interaction with others, which is why they're so concerned about potentially bringing COVID-19 home from work. Enhanced hygiene measures, staggering entry and leaving times so that they can avoid contact. There are a lot of options that are available to employers to accommodate employees that have these concerns and fall short of, yes, you need to be absent from work. From a legal perspective the focus should remain on the risk of the employee contracting and transmitting COVID-19 and so, again, if there are options that are available that will help reduce those measures, thinking back to that hierarchy of controls that we've already covered, then those are available for you to consider as well. That's it for me and I'm going to pass it off to my colleague to discuss remote working arrangements.

Elisa:               Thank you, Alycia. So we wanted to discuss remote working arrangements because we've realized that there's been a bit of a shift and may employers are now considering whether they do want to maintain some form of flexible remote working arrangement post-pandemic. I just want to briefly provide an overview of what you should cover in a remote work policy in a remote work agreement, because in our view if you're going to have employees working from home, it is important to have a policy or an agreement in place that sets out clearly the terms that apply to that arrangement to avoid confusion and to manage expectations. I listed a few titles here of topics that you would want to cover in your remote work policy or agreement. One of them is your work schedule. You have to determine what are the expectations. Is the employee expected to work during core hours, take their breaks and if they have appointments, they want to run personal errands, they're expected to do that during their break as they would if they were working in the office? Or are you going to have a more flexible arrangement where the employee has the flexibility to come and go, doesn't have to pre-clear it with their manager, but as long as they're getting their work done that's okay with you? These are conversations that you need to have. These are parameters that you need to set if you're going to continue the remote working relationship. You should have a term and a termination provision. It should be made clear to the employee that their eligibility to work remotely will be dependent on a determination that they, and their position, are deemed eligible by you as the employer, and that you maintain that discretion and that you reserve the right to terminate that arrangement, with notice of course. Communication. What's the expectation in terms of what level of communication the employee is required to maintain? Do you have to have regular check-ins? Do you expect them to be on email? Accessible by phone? These are things that you need to consider. Who's supplying the equipment? If you're supplying the equipment what kind of equipment are you supplying? Is it okay if the employee uses their own equipment and what are the concerns if they do use their own equipment? Make it clear that you're not going to be responsible for any damage, loss or wear and tear to that equipment.

Health and safety. This is the big one because it's difficult to control a remote work location. It is important that that remote work location is still healthy and safe, it's ergonomically sound. Some of that responsibility has to be on the employee. They need to ensure that they have a healthy and safe remote workplace. This might shift from what we were dealing with in COVID. COVID was temporary. People may have been working from their kitchen table but is that really going to be appropriate for a longer term remote working arrangement? You want to ensure that they have a proper working space. That it is ergonomic. You should consider having a requirement that you conduct inspections. Those inspections don't necessarily need to be in person. You could do them virtually but just to get a sense of where are they working. Does it look safe? Do you see hazards? So to work through those. If there are accidents or injuries that occur in the course of performing work at the remote work location you should have a protocol in place so that they know that they need to report those accidents or injuries. That you're not going to be liable for any damage to property or any personal effects; that they should have insurance to cover the contents, the dwelling, the equipment in their home while they're working remotely. Security. Security of the equipment. Security of the information. Determine what level of security is required. Are they working with highly confidential information so that if they're not in their remote work location that you would require that it be secure with a locked door? Is that necessary? These are things that you need to think about that you would want to include in your policy. Reimbursement of costs. Who's paying for what? Who's paying for the cost associated with remote work? There's internet. There's home maintenance. There's home insurance. If the employee is responsible for all that, that should be clearly laid out so there's no confusion.

                        Finally, remote work location. I've gone through this quickly but there's a lot of information here. Remote work location, this one you would think it would be easy and everybody would assume, "Okay, your remote work location is where you're living. It's where you reside." But we learned during COVID that employees didn't necessarily see it that way because they thought themselves, "As long as I'm working, I'm working remotely so what does it matter where I'm working from? What location?" It does matter because if they're working in a different jurisdiction that could have implications for you as an employer. So in your remote work agreement it should specify what the remote work location is, and be very clear that if that changes, that the employee needs to seek the approval for that change of the work location. John, I'm going to hand it over to John, because he is going to review with you what the implications are for the employer if the employees are working from jurisdictions other than where you, as the employer, have your physical office space.

John:               Thanks, Elisa. I understand we're running short on time so I'm going to be pretty quick because I don't want to stand between you and our closer, Olivier. So you might think, as Elisa has stated, it might not be an issue if you're working outside of your Province or outside of the scene which you normally work. You may allow your employees to remote work from outside of Ontario. You might take off to a cottage in Nova Scotia or a chalet in Quebec. Typically you would be protected with respect to applicable laws in that the ESA applies to employees who's work to be performed in Ontario, and outside of Ontario, but the work is a continuation of the work that's normally performed in Ontario. So that's not a big deal. So, yes, you can go to Nova Scotia or Quebec. But actually isn't necessarily the case because over time there has been case law with respect to people who have been working remotely in other Provinces and the laws of those other Provinces may apply depending on the circumstances. You have to remember we are currently in unchartered territory. Many of your employees who may be working remotely, may have been working remotely from another Province other than Ontario since March 23, and they may not return before January 2022. That's a long time to be away from the office and that may affect the applicability of the Employment Standards Act, the Human Rights legislation in Ontario, the Health and Safety legislation, Privacy legislation and it may affect the person's requirements to pay tax. I'll let Olivier talk about that in a moment in respect to Quebec because the tax rates are different in Quebec. The flip side of that is you may have employees who don't normally, and we have clients who have this, employee who don't normally work in Ontario but because of COVID they are working in Ontario and they have been during COVID. There's a good risk that, especially if the may not even normally work in Canada but they've been working in Ontario, there's a very strong likelihood that those employees will be subject to the Employment Standards Act of Ontario and employers might not be aware of that application because they think, no, no, my law is governed by the State of New York or another country. So you have to be wary about employee's working outside of Ontario or people working in Ontario if they're not normally working in Ontario. Next slide.

                        I started on fear. I'd like to end my presentation on fear. This is something you should be very concerned about. Employees working remotely outside of Canada. We certainly have cases where, as Elisa has alluded to, employees may not have asked permission to go outside of Canada to work but they think, "I've been told we're not returning to work until September, or December, or maybe January, 2022, so what's the big deal. I went to India or I went to Mexico to spend some time with my family." You should be concerned. You should be fearful of that because number one, tax. There are tax implications for the employer, for you as the employer, being the corporation. If that remote worker has traded a permanent assumption in that other jurisdiction outside of Canada, that could attract tax liability on the corporation as an entity. It can also attract tax liability on the employee but the big concern if a permanent assumption is created, for instance if we had an employee down in New York for the last 15 months, the IRS could deem that to be creating a permanent establishment and subject to your corporation, whether you're Federally regulated or Provincially regulated, to pay corporate tax in that jurisdiction outside of Canada. The second issue is immigration. If the person is working remotely, whether it's in the United States or South America or Europe or abroad, if you're working remotely you could be required, or you should have been required to obtain a work permit to work in that country. The problem with that is we've seen clients who've tried to be compliant with innovation laws of those countries, but by obtaining a work permit that might actually might trigger the first problem, which was the creation of a tax obligation because you created a permanent establishment. So you should be very wary about people working outside of Canada. Finally, in addition to the immigration issues and tax issues, Employment Standards, Human Rights, Health and Safety and Privacy, all those issues may be applicable to your employee who is working outside of Canada, and in certain jurisdictions such as Mexico the employment laws are much different. It's more difficult to sever or terminate an employment relationship if they are considered to be working in Mexico and subject to Mexican law. So you should be concerned or fearful. With that I will transfer it to my mon ami, Olivier.

Olivier:             Thanks, John. So I know we are running out of time but I will quickly speak about a few particular considerations for employees who are working in Quebec, so from Quebec. Be reassured it's not going to be as fearful as John mentioned in his presentation. Having an employee working remotely from his residence in Quebec will not automatically trigger the application of all Quebec employment related laws. Some will apply, some won't. It will depend. The key consideration here is to determine if, as an employer, you have an establishment in Quebec. The notion of establishment will vary depending on which law you look at, as we will see. Next slide, please.

                        So the general principle, and I'm going to keep it very simple here, having an establishment in Quebec means doing business in Quebec. By doing business I mean producing goods, delivering services, engaging with the general public in Quebec. This is what it means to do business in Quebec and if you do that you will be deemed to have an establishment here. It should be noted that it's not limited to physical premises. An employer, let's say based in Ottawa for example, can have no residence, domicile head office or office in Quebec but it can come to Quebec to fulfill a contract. Or when there is service of a continuation nature through an employee who is working remotely here and in this specific situation this could be considered as having an enterprise in Quebec. I want to give you a very simple example of what doing business means in Quebec. If you have, for instance, an IT person who's working from Gatineau and who has an employer based in Ottawa. There was no physical office in Quebec. If the IT guy is doing his work, performing his duties only in connection to what's going on in Ontario and is not doing any business with the general public in Quebec, technically he won't qualify as having an establishment. Next slide, please.

                        Having an establishment is closely linked to the idea of carrying on an enterprise in Quebec. If you look at the Labour Standards Act having an enterprise in Quebec means that you are performing on a continuous basis and with a certain degree of permanence, services or work through one or more employees on the territory of Quebec. When you look at health and safety legislation it's a bit different here. Carrying on an enterprise or having an establishment, which is pretty much the same, means that you will have facilities and equipment that will be grouped in a specific location for the production or distribution of goods and services. So in this case you will be deemed to have an establishment. Next slide, please.

                        If we look at the Labour Standards Act, which is the most concerning piece of legislation for employers who have people remotely working in Quebec. Normally the Labour Standards Act will apply to an employee who performs work both in Quebec and outside Quebec. But for an employer who's residence, domicile enterprise or head office or just office is in Quebec, if you don't have an office in Quebec, still this law can apply to you if are deemed to have an establishment as the residence of the employee was remotely working from Quebec may be qualified as an establishment. Again, if you are doing business in Quebec. If you are engaging with the general public. If you are delivering a service to Quebec customers. This is a big deal because if the Labour Standards Act applies to you as an employer, even if you're located outside Quebec, it will have huge impacts on, for instance, termination without cause. In Quebec, with the exception of a termination for a ... reasons, an employee who has more than 2 years in service and was not a senior manager cannot be terminated without cause. This could otherwise lead to the filing of a compliant for unjust dismissal and the CNESST, which is the Labour Standard Commission, may reinstate the terminated employee with backpay. So this is really important to consider. Also it will have an impact on vacation pay and vacation time. Pursuant to the labour standards in Quebec, an employee with 3 years of service or more is entitled to 3 consecutive weeks of vacation, annually. So it's a little bit different than in Ontario so it's something to consider. Also, statutory entitlements will be different from one Province to another. So it's something you will also need to consider. Next slide, please.

                        So regarding industrial accident and occupational disease, again, here the key is the notion of establishment. The Act respecting industrial accidents applies only to worker to whom an industrial accident happens in Quebec. Anyone who contracts an occupational disease in Quebec, and additional criteria, who's employer has an establishment in Quebec. As I've mentioned before the notion of establishment pursuant to this Act is rather different and normally will not apply to an employee who's simply working remotely in Quebec without engaging with the public and doing business. Because you really need to have facilities and equipment grouped in a location, again, for production or distribution of goods and services. As a result, if you are not covered by that Act, you will benefit from a potential exemptions from the obligation to register with the CNESST. Which is normally something you have to do within 60 days after the first day of employment of your employee working in Quebec. So in doubt, if you feel like you might qualify as having an establishment, if you're not sure, well call us. That's the main taking here. Next slide, please.

                        Now the situation is different when it comes to occupational health and safety. For this Act you don't need to have an establishment in Quebec for the Act to apply. It will apply to you as soon as the work is performed in Quebec. Under this Act, the Act respecting occupational health and safety, which I will call OSH, the Act provides for a number of obligations for employers with regard to their employees, as in Ontario. So the employer will need to ensure the safety of the employee's work place is sound and may have to set out certain conditions to that effect in a specific policy or an agreement, as my colleague Elisa mentioned earlier. Again, sanction for non-compliance with the OSH are quite dire as every person who by an act or an omission, does anything that directly or seriously comprises the health or safety or physical well-being of a worker is guilty of an offense and fines can potentially reach up to $300,000 and potential jail time for directors and officers in cases where blatant negligence in involved. It's really something you need to be careful about. As you may know, we have the Charter of Rights and Freedom in Québec and this is a special piece of legislation that will apply to you no matter if you have an establishment or not, that's not even a criteria. It applies to tourists or those passing by Quebec to give you an idea. So the Charter will apply to your employees working at home or remotely in their cottage or chateau as John mentioned. and this will have crucial impacts to their rights and privacy, especially if you start to inspect their residents or their work spaces to make sure that everything is okay regarding health and safety. So you have to be as less intrusive as possible so there will also be an impact regarding the fact that the employee cannot be discriminated in his employment because he has a criminal record or he is charged with a criminal offence. If it's not related with employment, that's one thing that will need to be considered and there are potential fines for employees who feel that their right under the Charter is not protected. They can file complaints before the Human Rights Tribunal in Quebec and I can assure you it's not a place you want to be as an employer and also it should be noted that intentional violation of the protected rights under this charter may lead to punitive damages. A quick word on privacy, as you may already know, Quebec as well as Alberta and British Columbia have their own provincial privacy laws. As such, people who are working remotely from Quebec are technically covered by the Act Respecting the Protection of Personal Information in the Private Sector, which is our Privacy Act in Quebec. This will govern the collection, use, communication to third-parties and disclosure of any personal information for these Quebec based employees. I think it is important to mention that we have a Bill coming to amended this Privacy Act, this is Bill 64 and it will really deeply affect the privacy scene, if I may say, in Quebec. This Bill will make our legal framework be much like the general data protection regulation or GDPR, which is the legal framework regarding privacy in the European Union, so it is going to be much more stringent than it is now, our law is a bit outdated and it will be much more severe. As an example, under the current Privacy Act, fines for the violation of the Privacy Act range between 1k and 50k depending on the offense. Under the upcoming Bill 64, unless this is modified by parliament, fines will range from $15,000 to $25 million dollars or if greater to 4% of the business's worldwide turn over for the preceding fiscal year so definitely something not to think about if you are trying to have a good night sleep. We are going to move on to the next slide which is my last slide, so a brief word on the Charter of the French Language, Quebec is a French speaking province, as you probably know and the Charter of the French Language, similarly to the Charter to Rights and Freedoms, will apply to Quebec based employees, especially if they are francophone. They can ask any written communications directed to them or any employment offer they receive to be drafted in French. What we do right now is we insert a clause that says basically the employee has agreed and has requested it expressly the employment agreement be drafted in English. That's sufficient for the moment being but the thing is we also have another Bill coming up that will change this, that is Bill 96 that will amend the, as we call it in French, Lois sue un, the Bill 101, under this new future bill, an employment contract which hasn't been negotiated by the employee, so technically talking about most employment contracts, it could be drafted in English under strict conditions of a translated version has been examined first by the employee. It's a way of saying basically that you have to have all of your employment contracts all drafted in French and hand them to employees before you are allowed to give them an English version. So it's a huge burden and this is definitely something that you have to consider if you are having people working, and I'm thinking specifically in the Gatineau region across the river. Just a quick word to say that Bill 96 will apply to federally regulated employers, which is currently not the case. So telecommunication business and banks for instance will be targeted now. We'll see if that stands now, but this is the general intent. I am going to pass it over to Elisa for closing statements.

Elisa:               Thank you Olivier, apologize for running long but we had a lot of information to cover. We hope that you found the session informative. Thank you to all of the speakers for the informative session. Just want to let everybody know that our next webinar is scheduled for Sept. 30. We're taking a bit of a break we know that everybody is wanting to take vacation over the summer so we want everyone to have the chance to attend. So Sept. 30 is our next webinar and it's on accommodation and disability management. We hope you can join us and I hope everyone has a lovely day.