Given the many challenges in 2020 of managing a workplace in the context of the COVID-19 pandemic, employers may not have been able to focus on non-pandemic priorities. However, it is not too late to tackle key, non-COVID, action items with some pro-active planning in early 2021. These key items are set out below.
Employment Agreements - Update Termination Provisions
As discussed in this blog (see here and here), the Ontario courts released a series of decisions in 2020 relating to contractual termination provisions. These decisions took particular aim at the termination for cause language in employment agreements. As a result of these cases, any language that permits termination for cause in circumstances outside those permitted by the Ontario Employment Standards Act, 2000 may impact the enforceability of both termination "for cause" and "without cause" provisions.
Given the above, employers should review their employment agreements to ensure that they are clear, compliant with legislation, and consistent with current case law. Any employment agreement templates used by an employer should be reviewed and updated as necessary.
To the extent that any employees are subject to employment agreements with outdated termination provisions, the payment of "out of the ordinary" annual bonuses or salary increases (which generally happens early in the year) may provide an opportunity to introduce updated and enforceable agreements in exchange for the payments.
Incentive Compensation - Update Termination Language and Evaluate Employee Review Process
In October 2020, the Supreme Court of Canada in Matthews v. Ocean Nutrition Canada Ltd., 2020 SCC 26 ("Matthews") made clear that in circumstances where an employee is entitled to a bonus (or other benefits) as part of their compensation during the common law reasonable notice period, employers must use clear and unambiguous language to limit that entitlement. The Matthews decision was discussed in detail here on our blog.
While the Matthews decision is unfortunately unclear as to exactly what language is sufficient to limit an employee's entitlements during the common law notice period, the case underscores that employers should be reviewing their 2021 bonus and incentive plans and, if necessary, updating them. The issue of consideration for the changes may also come into play, so a discussion with counsel may be necessary to strategize on the best way forward.
In 2020 our Ontario courts also drew attention to the importance of bringing potentially harsh and oppressive terms to the attention of employees (see Battiston v Microsoft Canada Inc ., 2020 ONSC 4286). As such, in 2021 employers would be well advised to consider the process in which incentive compensation documentation is presented to and reviewed by employees.
AODA - Accessibility Compliance Reports and Web Content
As detailed here on our blog, all business or non-profit organizations with 20 or more employees are required to file their annual Accessibility Compliance Report by June 30, 2021. We note that Accessibility Compliance Reports are required to be filed every three years, with the deadlines generally falling on December 31 of the relevant year. The 2020 deadline, however, was extended to June 30, 2021.
Beginning January 1, 2021, private or non-profit organizations with more than 50 employees and public sector organizations were also required to ensure that all public websites and web content posted after January 1, 2012 meet the World Wide Web Consortium Web Content Accessibility Guidelines ("WCAG") 2.0 at Level AA, with some exceptions for live captions and pre-recorded audio descriptions. Further details are posted here.
Remote Work Policies and T2200s
Finally, we refer to our recent blog on the issuance of T2200s to employees, which employers with remote workers will need to consider. As well, for those employers who are moving to permanent remote work arrangements, policies should be reviewed to ensure that the "rules of engagement" for such arrangements are clear between employer and employee.
Assistance with these Action Items
Legal counsel should be consulted in connection with any review of your employment agreements or incentive plan documentation. Should you wish to undertake such a review, or should you require assistance in achieving compliance with the AODA deadlines noted above, please reach out to a member of our Employment and Labour Group.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.