McLennan Ross Update for Thursday

By McLennan Ross Labour & Employment Team

 

As of July 6, 2020, we will only be publishing our blog twice a week, predominantly on Mondays and Thursdays. 

What we are seeing

• The Government of Ontario announced on July 13, 2020, that most of the province, with the general exception of the Greater Toronto Area, would move to Stage 3 of its reopening plan effective July 17, 2020. It also provided more details regarding Stage 3, link here. In summary, the plan calls for the continuation of general safeguards such as social distancing, the wearing of masks when in public places and where social distancing is impossible, restrictions on the size of indoor and outdoor gatherings and minimizing travel.
• Conspicuous in its absence from the Ontario announcement was any discussion of school re-openings, with the only reference in the document being to earlier disclosure, which set out the three possible options for school reopening (100% at-home learning, modified school day routine with smaller classes sizes, and alternate day attendance or normal school day routine with enhanced public health protocols), link here.
• The Government of Alberta announced on July 12, 2020, that its transition to Stage 3 of its relaunch strategy was on the horizon. However, the current trend of an increase in cases, especially among those under 40, was called concerning on July 15, 2020 by the province’s Chief Medical Officer of health. In light of this, it seems likely that a move to Stage 3 will be paused until the number of new cases per day stabilizes at a slightly lower level.  

What we are hearing

• The lack of certainty regarding school re-openings will make Alberta’s economic recovery more difficult. Any proposal that involves home schooling for part or all of the school week will put increased pressure on parents to stay home from work and continue to work remotely.  In light of the finite amount of space and other resources available to schools, it is not clear how the balancing of health safety and child education can be met.  
• It is interesting that some health experts believe full-time school may be safer than part-time attendance, the argument being that the greater amount of time students and teachers spend together in full-time school may actually decrease the total interactions students have with people outside of their home per week. Full-time school will leave less unstructured time available for students when additional interactions with a greater variety of people (with a greater risk of exposure to COVID-19) can occur. In light of the significant economic benefit of allowing employees to return to work full-time, it may be that if schools are comfortable enough to reopen, full-time may be safer for all than part-time, without taking into account the mental health benefit to parents of not having to home school.

What we are saying

• As Calgary continues to debate the merits of a bylaw mandating mask wearing in public places, Toronto is experiencing difficulties with its own bylaw. For the most part, Toronto residents are being respectful of the bylaw. However that may change as reports that the city is leaving it to businesses owners and operators to enforce the bylaw become more widespread. Further, the liability for the $1,000 fine under the bylaw rests with the business that allows someone to not wear a mask in its premises as opposed to the customer who refuses to wear a mask. The issue becomes more complicated in light of the fact that those with legitimate medical or religious reasons for not wearing masks are exempt from the bylaw.
• There would be myriad legal and practical issues faced by an employer if such a bylaw was introduced in Calgary with a similar exemption:
• What evidence of a medical or religious reason for not wearing a mask can employees ask for from a member of the public;
• If an employee does not accept the validity of the stated medical or religious reason and refuses to provide service, is the employer exposed to a human rights complaint; and
• If an employee makes the determination that the reason given by the customer is legitimate but a bylaw officer appears, concludes otherwise and issues a fine, how can the employer dispute the violation, especially if the customer refuses to cooperate?
• Issues also arise with respect to forcing employees  to enforce the bylaw, especially when met with a vitriolic and aggressive response from a customer.