Employers are not prohibited from monitoring their employees’ electronic work activity.  However, due to privacy concerns, employees may be opposed to electronic monitoring and employers may need to be cautious about how they approach electronic monitoring to avoid creating unnecessary friction between the company and employees.  Employee concerns about privacy may be particularly strong if the employees work from home and use personal devices. 

Recently, new provisions of the Employment Standards Act (the “ESA”) have come into force, which require employers with 25 or more employees to establish (and distribute) a written policy that addresses the following:

1. Whether the employer electronically monitors employees and if so,
   1. A description of how and in what circumstances the employer may electronically monitor employees, and
   2. The purposes for which information obtained through electronic monitoring may be used by the employer.
2. The date the policy was prepared and the date any changes were made to the policy.
3. Such other information as may be prescribed.

These ESA requirements are relatively new and address a topic that has become increasingly relevant in recent years. More regulations or requirements around employers’ obligations with respect to monitoring employees may arise in the future. It is advisable to seek legal advice when implementing such policies in the workplace. 

At the most basic level, when firing an employee without cause, an employer must provide the employee with notice of termination, or compensation in lieu of that notice. How much notice the employee is entitled to is determined by their employment contract, the Employment Standards Act, and the common law (Judge-made law). If there is an (enforceable) employment contract with a termination clause in place, you must provide the employee with their entitlements under that termination clause. Many employment contracts attempt to limit the employee’s rights to the minimum rights provided under employment standards legislation – for example, providing employees with the minimum termination notice allowed under the Employment Standards Act. However, if there is no employment contract in place or the termination clause in the contract violates the ESA (making the contract unenforceable), the common law applies. There is no strict formula under the common law to determine how much notice an employee is entitled to, but some key factors such as age, length of service, character of employment, and availability of similar work are taken into account in order to estimate how long it would reasonably take the terminated employee to find their next job. These factors could mean that a terminated employee could be awarded one month per year of service or more, underscoring the importance of having an enforceable employment contract in place.

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Protecting the relationship between yourself and your clients when an employee leaves your company begins with the employment contract. The employment contract may contain restrictive covenants (i.e., non-solicitation clauses and non-competition clauses). A non-solicitation clause is a provision that restricts an employee from initiating contact with clients of your company for a certain amount of time after the employment relationship ends. A non-competition clause is a provision that prohibits the employee from engaging in work that is in competition with your business for a certain amount of time after the employment relationship ends. In Ontario, there is a prohibition on non-competition clauses under the Employment Standards Act, with some exceptions (e.g., non-competition clauses are allowable for executive employment agreements such as for CEOs or COOs). However, non-solicitation clauses are permitted; that said, caution needs to be taken that a non-solicitation clause does not contain any language that may turn it into a non-competition clause (and therefore violate the ESA).

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The Ontario Human Rights Code (the “Code”) protects employees from discrimination on the grounds of disability.  Employers have a duty to accommodate employees with disabilities when they are adversely affected by rules, policies, practices, etc.  Required accommodations can vary greatly between employees and even if multiple employees have the same disability, the accommodation(s) each employee requires may be different based upon individual needs. 

When assessing an employee’s situation and request for accommodation, the employer should be cautious of asking the employee to provide extensive medical documentation that goes beyond what is necessary to assess the accommodation request – overly broad documentation requirements may be viewed as the employer creating a barrier to accessing accommodation and discriminating on the basis of disability.

While employers have a duty to accommodate, it is only to a certain extent.  An employee is not entitled to a “perfect” or “preferred” accommodation, they are entitled to a reasonable accommodation that meets their needs.  Further, an employer only has to accommodate to the point of undue hardship (e.g., the accommodation would be contrary to health and safety requirements).

Employee accommodation can be a minefield for employers. It is strongly recommended that employers consult with an experienced employment lawyer when responding to accommodation requests. 

In most cases, employers are able to require employees to return to work in-office.  However, there are some exceptions: 

First, an employer cannot force an employee to return to work if it would be discriminatory to do so.  For example, if an employee has a disability that interferes with their ability to return to work in-person, the employer may have a duty to accommodate by continuing to allow that employee to work remotely.

Second, an employer should pay attention to the terms of any applicable employment contract.  If the employment contract permits the employee to work from home, then, depending on the wording of the contract, an employee may have legal grounds to refuse a demand that they work in-office.

Some employees refuse to return to the office due to the belief that doing so is unsafe or a danger to their health.  For an employee to be successful on this ground, their belief must be reasonable (as ultimately assessed by a government inspector) and supported by current government guidelines.  Given the easing of public health mandates and restrictions, simply being concerned about the potential to contract COVID-19 may not be sufficient for a valid refusal to return to the office.

The Ontario Human Rights Code (the “Code”) protects employees from discrimination on the grounds of family status.  Under the Code, “family status” is defined as “being in a parent and child relationship.”  Employees may request work accommodations (for example, a change in their work schedule) when aspects of work are adversely impacting their childcare or parental care obligations.  An employer has a duty to accommodate on the basis of family status if an aspect of the job (such hours of work, rules, policies, practices, etc.) negatively impacts the responsibilities stemming from the parent/child relationship and/or the employee’s work (for example, a parent needs to drop off their child at school at 9:00am, but is required to be at work by 8:30am).

While there is a duty to accommodate, an employee is not entitled to the “perfect” accommodation (or the accommodation they desire the most), rather they are entitled to reasonable accommodation. As such, while an employee may request an accommodation such as working remotely on the days they need to drop their child off at school, they are not necessarily entitled to that exact accommodation if the issue can be addressed in a different way (for example, rather than the employee working from home on those days, they are allowed to start their workday later on days they need to drop their child off at school).  Further, an employer only has to accommodate to the point of undue hardship (e.g., the cost of the accommodation is substantial enough to affect the viability of the business).

When hiring an employee, employers are not allowed to discriminate on the basis of any of the grounds protected by the Ontario Human Rights Code (the “Code”).  The grounds protected by the Code are race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability. That means, when interviewing an applicant, employers should not ask questions based on these grounds.  For example, an employer should not ask questions such as:

• Do you have children?
• Are you married?
• How old are you?
• Where were you born?
• What is your religion?
• What is your ethnicity?
• Do you have any health issues?
• Have you ever spent time in jail?

Employers need to be careful that their interview questions will get them the specific information they seek without accidently going into Code protected grounds. For example, an employer should not ask about an applicant’s citizenship status, but instead can ask the applicant whether they are legally permitted to work in Canada.

There can be exceptions where it is allowable for an employer to ask questions based upon Code protected grounds, such as when the employer is a “special interest organization” under the Code and there are legitimate reasons for screening candidates on a specific Code protected ground.  For example, if an employer is a women’s domestic abuse shelter, the nature of that work may make it reasonable and legitimate to screen candidates based upon gender for certain roles within the organization. Another example would be employers that operate in a vulnerable sector (such as childcare, for example) and which are permitted to request criminal checks from prospective candidates. 

Protecting the relationship between yourself and your clients when an employee leaves your company begins with the employment contract. The employment contract may contain restrictive covenants (i.e., non-solicitation clauses and non-competition clauses).  A non-solicitation clause is a provision that restricts an employee from initiating contact with clients of your company for a certain amount of time after the employment relationship ends.  A non-competition clause is a provision that prohibits the employee from engaging in work that is in competition with your business for a certain amount of time after the employment relationship ends.

In Ontario, there is a prohibition on non-competition clauses under the Employment Standards Act, with some exceptions (e.g., non-competition clauses are allowable for executive employment agreements such as for CEOs or COOs). However, non-solicitation clauses are permitted; that said, caution needs to be taken that a non-solicitation clause does not contain any language that may turn it into a non-competition clause (and therefore violate the ESA).

In Ontario, the Human Rights Code (the “Code”) provides protection from harassment on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status, or disability.

Before a complaint even comes into a play, employers are legally required to have a workplace harassment policy in place, which sets out what workplace harassment is and how employees can report it.

Under the Occupational Health and Safety Act (the “OHSA”), an employer must conduct an appropriate investigation into incidents or complaints of workplace harassment. This investigation should be undertaken promptly; must be objective; must maintain confidentiality; and should be very thorough. The employer can choose to have the investigation conducted internally (i.e., the investigator is someone from within the company), or it can be done by someone external to the company (e.g., a lawyer). In most cases, it is strongly recommended that the investigation be conducted by a third party in order to eliminate any perception of bias, and particularly in situations where the complaint is in regards to an individual who holds a managerial and/or HR position with the company. 

Workplace investigations are often complex and technical, meaning that the individual(s) selected to carry them out require specialized training, skills, and knowledge. Hiring an external investigator who is also a lawyer, could reduce the potential risks of the investigation being scrutinized by a court or tribunal (especially when the allegations are very serious). Further, the investigation report would likely be protected by solicitor-client privilege, which ensures confidentiality.