With Canada entering COVID-19’s fourth wave, Queen’s Law scholars and alumni lawyers share their insights on legal aspects of growing national and international concern. In this third of a three-part series, grads Shane Todd and Jay Kim are interviewed for their perspectives on employment law issues.  

Impacts of the COVID-19 pandemic on the law and on the legal profession have been both varied and profound. That has certainly been the case in employment law. “What’s happened has been remarkable, unlike anything I’ve ever seen or experienced in my 12 years in practice,” says Shane Todd, Law’08. “Going forward, I expect that the challenges will continue to be significant, with the impact of the pandemic rippling through society, the economy, and the legal profession.” 

An employment law expert who’s a partner in Fasken Martineau DuMoulin LLP’s Toronto office, Todd hastens to add that it’s not just one type of employer or one sector of the economy that’s being affected. The uncertainties are universal. “However, as life continues opening up again, I think we’re going to see that some people and some businesses have weathered the storm better than others. The financial supports provided by the government have helped in that regard.”

Todd notes that the myriad economic, ethical, and legal woes Canadians have experienced since the pandemic’s onset have crashed over us in successive waves, each one bringing fresh legal issues for the employers Todd represents. Initially, many of these issues had to do with questions of staff retention and redeployment as businesses slowed or suspended operations. Next came that series of provincial re-openings and renewed closures, each giving rise to renewed pain, anger, frustration, and fears.

“Now we’re into a whole new phase: vaccinations,” he says.

Among them: Can employers compel employees to get vaccinated? Can vaccination be a condition of new employment? Can employers make it a condition of returning to the physical workplace? Can an employer ask for proof of vaccination or even a “vaccine passport?” If an employer asks for and has access to an employee’s personal health information, what can be done with it? How does an employee’s right to privacy in health information balance against the employer’s duty to provide a safe workplace? 

Those are just some of the many issues that employment law lawyers and their employer clients are now wrestling with. Then, too, there’s the flip side: employees’ rights and obligations.

“We have seen litigation related to COVID layoffs. Different judges in different cases have come to different conclusions about whether a layoff is a constructive dismissal in light of regulation changes made by the Ontario government. It remains to be seen how the appeal courts will deal with these cases,” says Todd. “Depending on the outcome we could see a tsunami of litigation related to COVID layoffs.” 

That’s one perspective. Jay Kim, Law’17, who has practised employment law with Brazeau Seller LLP in Ottawa, has another. 

Like Todd, he had experiences advising clients struggling to deal with the confounding succession of pandemic-related setbacks. 

“The situation has been very fluid, and I suspect it may stay that way for a while longer,” says Kim. “My sense of it is that, going forward, lawyers will have no shortage of COVID-linked legal work. Every day, clients are calling me with questions about their rights and responsibilities. One major area of concern has been child-care issues. With many people still working from home, there’s a lot of uncertainty about what and how much employers have to do to accommodate those employees who must also care for school-age children when schools are closed. These questions will likely persist until a suitable COVID vaccine candidate for elementary school-aged children is confirmed.”

Answers to such questions and many others in a similar vein may well be found in the common law. Others will require legislative action, as was the case when Ontario approved three days of paid “infectious disease emergency leave” on April 29.

Kim notes that numerous employers already had paid sick-day entitlements for their employees, even without a statutory obligation to provide them. “Many employers chose to maintain the ‘personal emergency leave’ entitlements implemented in 2018 with the passage of Ontario’s Bill-148,” he adds. “Realizing the need within the pandemic context, other companies had been deciding to introduce reasonable employee sick-day entitlements to help reduce the virus’s spread.” 

As Kim sees it, “the key to any jurisdiction’s legislation on paid sick leave is clear language on how it is to be implemented and whether any temporary entitlements will be extended once the vaccination campaign wraps up.”

Those questions, like so many other pandemic-related employment law questions, remain to be answered. After all, as Shane Todd and Jay Kim will tell you, Canada is deep into uncharted legal territory these days. 

By Ken Cuthbertson, Law’83