How has employment law changed post-COVID?

Fairly early in the pandemic, what employers needed most of all was flexibility, in order to allow their business to flex and adapt to changing work environments, when they didn't really know how things were going to look in the next few months.

“So one big thing that we're seeing is an increasing desire to work some level of flexibility into employment contracts,” says Chris Sinal, a partner at Siskinds in London, Ont., who will be speaking at the upcoming Employment Law Masterclass Toronto.

“Anytime you do that, you really need to do it in a way that the employees have some certainty of what they can expect and what they're going to get, while giving employers that degree of flexibility on how to operate their business.”

So what does that mean?

“It could mean the ability to lay off employees is now explicit in employment agreements; it could mean… an ability to schedule employees — either to increase or decrease scheduling requirements, allow people time off, allow people to be able to work from home — all of that is going to be more clearly established in policies or in the contracts where before it might not have been,” he says.

That’s also relevant because one of the biggest risks for employer, time and again, is the allegation of a constructive dismissal, with employees claiming their employer changed the employment contract without their permission.

“The advantage for the employer of saying these things explicitly is that we can say, ‘No, we agreed on the front-end that this is what we're going to be able to do.’ And so this certainly is a an advantage there,” says Sinal.

Also challenging is the fact that legislation such as the Employment Standards Act and the Occupational Health and Safety Act are statutes that are 100 years old, he says.

“They have baked into their bones an assumption that most of the workforce works in a steel mill or in some sort of industrial setting, with fixed schedules [and] regular shift supervisors that are there to clock them in and out of doing overtime. And that really isn't the workforce that most employees are working in now. And the legislation has not really caught up,” says Sinal.

“So we find ourselves building employment contracts and policies to try and accommodate pieces of legislation that don't easily glom on to the current work environment.”

In looking at the post-COVID world at the Employment Law Masterclass Toronto, Sinal will also speak about:

• Ensuring continued health and safety in hybrid work settings after the removal of COVID regulations.
• Does a temporary layoff due to COVID constitute a constructive dismissal?
• An update on recent Supreme Court decisions on IDEL.
• What are the future implications of constructive dismissal cases caused by COVID?
• Understanding new legal precedents set by cases based on vaccine refusal.