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EMPLOYMENT & LABOUR: An Introduction to Ontario

Ursel Phillips Fellows Hopkinson LLP Ontario Employment & Labour Overview for Chambers Canada 2021

By Saneliso Moyo 

Like many other areas of law, labour and employment has been dramatically affected by the ongoing COVID-19 pandemic. The realities of work, and the rights that attach to it, have seen shifts and changes over the last several months that are unprecedented and which will undoubtedly have long-lasting effects. During the early days of the pandemic various industries saw the introduction of emergency legislations which impacted, and often restricted, the manner in which work could be performed – if it could continue at all. From the education to transportation to healthcare sectors, questions of workplace health and safety have been top of mind, and front and centre for trade unions and individual employees alike. For many, the last several months have been spent reacting to the ever-changing landscape of work in the era of COVID-19. The pandemic has called on unionised and individual employees alike to respond and adapt to government and employer-imposed safety protocols and social distancing plans. It has similarly required collaboration with other stakeholders to determine the manner in which work can continue despite very real threats of exposure to COVID-19 posed by the nature of one’s work and/or workplace.

The economic impacts of broad sweeping shutdowns and restrictions across industries have had an undeniable impact on the availability and precarity of work throughout the Province of Ontario. In certain cities, like Toronto, the transit sector saw reductions in ridership of approximately 80% at the height of the first wave. This had a direct impact on service provision, and therefore the availability of work to unionised workers in the sector. Despite the need for social distancing on public transit, the early spring of 2020 saw unprecedented layoffs of unionised transit workers as a direct response to reductions in ridership. This left our unionised clients grappling with concerns about safety in their essential workplace, while simultaneously responding to the layoffs and reduction of hours for many of their members.

Another example of an industry experiencing enormous shifts and changes as a result of the pandemic is the education sector. While on its face, it might appear that demand for education workers has only increased in the face of virtual and in-class learning taking place, the reality is that the working conditions of education workers have dramatically and swiftly shifted on numerous fronts over the last year. Most recently, the Province of Ontario announced the elimination of Ontario Regulation 274 – a regulation which made seniority the deciding factor in the hiring of occasional teachers to long-term and permanent positions. Even with increased demand for teachers to fill both in-class and virtual teaching positions, questions with respect to hiring practices and the legislation that governs it persist, presenting ongoing challenges for trade unions representing education workers. At the same time, education workers have been at the forefront of health and safety challenges against government-imposed return to work plans following the reopening of schools this fall.

Individual employees have not been immune to the challenges faced by their unionised counterparts. The beginning of the pandemic saw large-scale terminations and layoffs in many industries, leaving many individual employees with questions about whether their terminations or layoffs were lawful and what entitlements they might have at common law. The introduction of new employment insurance (EI) legislation has in a number of ways increased access for some workers to employment insurance or other temporary recovery benefits for those workers who are unable to work due to COVID-19. In particular, Bill C-4, An Act relating to certain measures in response to COVID-19, has modernised the existing EI scheme in a number of ways, including:

• Only requiring 120 insurable hours required to qualify;
• Amending the minimum benefit rate of CAD500 per week, or CAD300 per week for extended parental benefits; and
• Allowing for at least 26 weeks of regular benefits.

Despite this, there are categories of employees who remain without access to EI, and questions remain as to how and whether these alternative programs (e.g. the Canada Recovery Benefit, Canada Recovery Sickness Benefit and Canada Recovery Caregiving Benefit) will fill the gap for those who do not qualify for EI but are unable to work for reasons related to the pandemic.

Across the board, we have seen and heard about the gendered impact of the pandemic on working people. More specifically, as we have seen a large-scale shift to working from home, questions about the impact on women and their work continue to grow. Will the gendered division of labour in many households see women forced out of the workforce in order to meet increased demands of childcare and other family status obligations in the new work from home economy? How are employers responding to increased demands for accommodation of such family status? Will we see large numbers of women forced out of their work as a result of the shifting family status demands created by school closures, caregiving obligations and the workplace and home becoming one?

The pandemic has undoubtedly impacted the way we work, and the laws which govern that work. What remains to be seen is how the drastic shifts and changes made by governments and employers to respond to the pandemic will impact workers long term. What will the economic and labour market effects of increased unemployment and underemployment be long term? Will increased access to EI remain available beyond the one-year mark sketched out by Bill C-4? Knowing that epidemics and economic crises have disproportionate impacts on certain sectors of the population, what will the long-term effects of this pandemic be on income and gender inequality? What will be necessary from a policy perspective to respond to growing inequalities created by the pandemic? All of these questions remain unanswered and only time will reveal the ways in which the legacy of the COVID-19 pandemic impacts labour and employment in the years to come.