Wise Law Blog: March 2020

BY SIMRAN BAKSHI, ASSOCIATE LAWYER

UPDATE: With Ontario today mandating closure of all non-essential businesses, effective March 25, we can urgently hope for updated legislation shortly, to guide employers'decisions in the face of CoVid19, and to provide much-needed income security benefits for employees.

Pending such an announcement, however, we must assume that the current legal framework, which is discussed in part by Simran Bakshi below, remains in effect.

That may change, both through amended laws and decisions the Courts will make, perhaps many months from now. We will continue to provide updates, as events unfold.

- Garry J. Wise

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With words like “pandemic” and “state of emergency” being used to describe the novel coronavirus, it is understandable to feel a bit overwhelmed.

This is all the more true for small businesses across Ontario, who are faced with the challenge of staying financially afloat while prioritizing the health and safety of their customers, employees, colleagues and community.

Perhaps the best advice we can offer at this time is to breathe…

There are steps you can take as a small business owner to protect your business, while doing your part to protect those around you.

1. Remember that the most important aspect is to maintain the health and safety of the workplace

You will inevitably find yourself at a crossroad regarding whether to continue operations to the extent that is possible (based on applicable government regulations), or alternatively, to find a middle ground, such as facilitating remote operations from home, where suitable to your industry.

In some cases, pre-emptively shuttering your business may appear to be your only, available option, particularly if you are subject to legal shut-down requirements in the current, mandated state of emergency.

Your duties as an employer pursuant to the Occupational Health and Safety Act, RSO 1990, c 0.1 [“OHSA”] should be at the forefront of your mind in making this decision. Employers are required by OHSA to:

• Take all reasonable precautions to protect the health and safety of workers;

• Ensure that equipment, materials and protective devices in good working condition are provided to workers; and

• Providing information, instruction and supervision to workers to protect the health and safety of workers;

These obligations apply to not only employees, but to independent and dependant contractors, as well.

Essentially, this means that if you decide to keep your business opened, you must ensure that:

• Persons with flu-like symptoms are not granted access to the work premises;

• The work environment is clean and recommended hygiene practices. such as frequent hand washing and work-area disinfecting, are actively being promoted and implemented;

• Physical and social interactions are limited to the extent possible;

• Your workers are informed of your coronavirus health and safety policies;

Consider:

• Implementing early screening processes to determine whether any persons scheduled to attend at the workplace may have travelled recently, or exhibited symptoms of the coronavirus, or had exposure to someone who is confirmed to have the coronavirus or exhibits such symptoms;

• Minimizing work meetings and events;

• Allowing workers who can work from home to do so;

• Investing in technology to allow more workers to work from home, if possible;

• Implementing social distancing practices in the workplace, such as limiting any physical interactions (i.e. hand shakes); scheduling workers at different times; and separating work and lunch spaces;

• Providing necessary safety measures such as hand sanitizers and disinfectant wipes;

• Increasing sanitization practices;

• Arranging a teleconference meeting to inform workers of the health and safety measures in place, and related policies regarding sick leaves and other absences from the workplace;

Keep in mind that your workers have the right to refuse to work if they have reason to believe their health and safety may be at risk (subject to certain exceptions based on the type of job). Prepare yourself for this possibility and have a contingency plan in place should this occur.

Among the worst things an employer can do to is compel a worker to continue to work despite their legitimate safety concerns, or to discipline or threaten the worker for exercising their right to refuse to work.

All such steps could be considered unlawful, and could expose the employer to legal risk and potential liability for significant damages and penalties.

2. The option of laying-off employees

If you are wondering how you can possibly afford to continue operating your business with little to no incoming revenue, you’ve likely already turned your mind to the different ways you can curb your business expenses.

With payroll often being one of the largest operational expenses in a business, it may be necessary to consider temporarily layoffs as the coronavirus pandemic peaks.

The decision to lay employees off is a difficult one, and it also carries significant legal risk. A layoff is not a termination. It is by definition, temporary in nature, premised on the mutual understanding that the employee will return in due time. Employees who are laid off are typically entitled to EI benefits during their absence, and salary payments are suspended.

As discussed in our previous blog article, if an employee is not recalled to work within the required timelines (initially, 13 weeks) prescribed by Ontario’s Employment Standards Act, the layoff is deemed to be a termination.

The employee then becomes entitledto statutory termination payments, and in larger organizations after five years' employment, to severance pay, as well as potential damages at common law for wrongful dismissal.

While a temporary layoff might appear to be a tempting tool for employers during these uncertain times, Ontario courts have long held that layoffs are not available at every workplace.

Generally, layoffs are not necessarily permitted unless there is a valid employment contract between the parties that specifically or implicitly authorizes such a layoff.

If you do not have a written contract with your employee providing for the right to layoff, don’t panic just yet.

It may well be that your employee is as keen to be laid off during this time as you are to reduce employee costs, since this presents a number of mutual advantages including that:

• Employees will no longer have to attend at work;

• Employees may continue to receive employment benefits if you elect;

• Employees can access unemployment insurance benefits for income support; and

• Perhaps most importantly, employees will have the right to return to work once recalled.

It may be worthwhile to have a discussion with your employees regarding whether they will voluntarily agree to a temporary layoff.

If there is such an agreement, this should be confirmed in writing.

It is advisable to consult with an employment lawyer regarding any temporary layoffs that are contemplated and the documentation that may be required should you proceed in this direction.

3. Its time to be creative…

As every successful business owner knows, where there is a problem, there is often a parallel opportunity.

While it is becoming increasingly challenging to continue business as usual, you should consider how your business could adapt during this time.

Can some of your business be conducted remotely or online? Are there certain ad hoc tasks and projects that your employees can be working on from home?

Can you use this time to focus on your marketing plan or budget for the year ahead? Perhaps now is as good a time as any to review your workplace policies and protocols.

Whatever it is that you choose to do, it is best for your business to keep calm and make decisions with a clear mind based on all the information available to you.

[1] Occupational Health and Safety Act, RSO 1990, c 0.1 at s. 25 and 26;

- Simran Bakshi, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Gender Issues Relating to Children: California intersex surgery bill fails

BY GARRY WISE AND SIMRAN BAKSHI
Reprinted from The Lawyer's Daily

In a highly controversial decision last month, a California senate committee voted against proceeding with a bill that would ban cosmetic genital surgery on intersex infants.

The term intersex refers to persons born with genitalia, chromosomes or reproductive organs that do not conform to a single gender. Far from unusual phenomenon, it is estimated that almost two per cent of the population is born with some form of intersex variation.

This bill, which would have been the first of its kind in the United States, proposed to defer surgical procedures on intersex children under the age of six, except for procedures deemed medically necessary by the Medical Board of California.

The bill proposed to permit intersex children the opportunity to be involved in the critical decisions made about their gender identity and health. Its advocates also argue that early “normalization” procedures can lead to incorrect gender assignments and permanent loss of physical sensation.

This is an emerging social policy issue that raises difficult medical, ethical and parental issues.

The practice of genital surgery on intersex infants has long been criticized by the United Nations and advocates for the intersex community argue that the very notion that anatomically atypical sexual features must, by definition, be “fixed” is problematic at its core

The Canadian Bar Associate’s Sexual Orientation and Gender Identity Community Section (SOGIC) and Health Law Section recently put forward similar recommendations to the Standing Committee on Health in relation to its study of LGBTQI2S health in Canada. The CBA specifically expressed concern regarding the exemption provided for at subsection 268(3) of the Criminal Code as it relates to the rights of intersex children, which allows surgical procedures for the purpose of “normal reproductive functions or normal sexual appearance or function”.

As the CBA submissions explained:

We are not suggesting a complete ban on surgical procedures. We recommend amending the Criminal Code to postpone genital normalizing surgeries on children until the child can meaningfully participate in the decision – except where there is immediate risk to the child’s health and medical treatment cannot be delayed.

Opponents of the California bill claimed it was overly prescriptive in shutting out parents and medical professionals from decisions as to whether surgical intervention is in a child’s best interests. They argued the bill unfairly assumed that parents and doctors opt for surgery without due consideration of the risks and benefits to the child, and that no good would ultimately come from deferral to age six, since parents would then, in any event, be required to make these decisions on behalf of their still-infant children.

Is a child likely to suffer greater harm from early surgical intervention which occurs without the child’s input? Can a child legally provide true consent to an intersex surgery, pre-puberty? Is a child more likely to be adversely affected if surgery occurs before rather than after puberty? Should a parent be entitled to decide about a child’s gender identity without the child’s involvement?

The answer to these questions may well vary from child to child. Is a one-size-fits-all ban on intersex surgeries for all children under the age of six, then really the answer?

While the law must protect a child’s right to develop and to identify with one, both or neither gender; it must also be flexible enough to recognize that there will be circumstances where it may be in the child’s interest for the parent to decide on action earlier rather than later.

Beyond that, society’s “binary” understanding of gender must change.

Decisions regarding intersex surgery must be based on what is genuinely best for the individual child. They should not be based on discrimination, fear or stigma.

This article was originally published by The Lawyer's Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net