May 2021 Labour Update
Updating business managers with what you need to know, right now:
This quarter’s legal update looks at the continued fallout from COVID-19 and its impacts on immigration and employment law. Immigration lawyer Stanley Leo discusses borders, vaccinations, permanent residence, students, and so-called ‘low skill workers’. Employment lawyer James D. Kondopulos looks at the impending return to the workplace, the legalities of mandatory attendance and vaccination, sick leave, and the Accessible British Columbia Act.
Pressed for time? Skip ahead.
Immigration Law with Stanley Leo
· S1:01 Border Reopening and Vaccination Based Travel
· S1:02 Permanent Residency for ‘Low Skilled’ Workers
· S1:03 Problems with Permanent Residence Programs
· S1:04 Permanent Residence for Students
Employment Law with James D. Kondopulos
· S2:01 Returning to the Workplace and Employees Who Refuse
· S2:02 Paid Leave for Vaccinations and Covid-19
· S2:03 Legality of Mandatory Vaccination
· S2:04 Accessible British Columbia Act
Interview with Stanley Leo, Immigration Lawyer at Lowe & Company
Border Reopening and Vaccination Based Travel
GB: There has been a lot of discussion about the potential re-opening of the US border. What are you hearing?
I would not be surprised to see measures for travelers from the US start to ease up in the next few months. I recently virtually attended the CBA National Immigration Symposium, where Minister of Public Safety Bill Blair discussed how plans are being formulated right now to amend travel restrictions in a way that will account for vaccinated people. There were no details provided about exactly what this entails, but Minister Blair’s comments alluded to the inclusion of an assessment of vaccination levels for those who are either fully vaccinated or who have least received the first dose. Having said that, it does not sound like even fully vaccinated people are going to be able to travel as freely as they did pre-pandemic for some time yet.
As evidence of Canada moving in this direction, announced that effective 5 July 2021, the post-arrival COVID testing and the quarantine requirement will no longer apply to fully vaccinated people who are otherwise exempt from current travel restrictions. Those people must have both doses of a vaccine approved for use in Canada. All other restrictions remain in place however so this change does not yet this does not seem to absolve incoming travelers from the overall requirement to quarantine yet, or from COVID testing requirements.
GB: Do you foresee any difficulties with an international travel system based on vaccination?
We might end up seeing a very disjointed system emerge. China, from my understanding, are only using Chinese vaccines. I haven’t heard anything discussed about whether we’re going to recognize that as being equivalent to a Pfizer, Moderna, or AstraZeneca or Johnson & Johnson vaccine.
My guess is that they will have to base it on region rather than vaccine. As long as the pandemic is still ongoing, we might still have COVID testing requirements and there may still be some
kind of shortened period of quarantine even as the pandemic declines globally. I’m just speculating.
Permanent Residency for ‘Low Skilled’ Workers
GB: Do you think that lessons learned during the pandemic will have an impact on the types of workers we may see granted permanent residency in the future?
Immigration Minister Marco Mendicino at the symposium was very adamant that one of the lessons we have learned as a country in the last year has been how ‘low skilled workers’ are often relied upon to a significant degree.
Many of them do not have pathways for permanent residence but to get another type of work permit for these people could almost be impossible unless the employer intervenes. Even then, the employer might be required to complete something called the Labour Market Impact Assessment where the employer has to attempt to recruit Canadians and show that there weren’t any Canadians or Permanent Residents able to do the job.
Employers of international labour in such industries may tend to churn through people. A lot of international workers would want to find some other job that might give them an opportunity to immigrate, rather than stay in something not considered eligible for immigration. If an industry can articulate the positive impact of allowing a so-called ‘low skilled workforce’ that’s comprised largely of international workers to become permanent residents, that may help to keep something like this public policy program in the discussion and, possibly, give it more staying power.
Problems with Permanent Residence Programs
GB: Are permanent residency target numbers being met?
The immigration department, as far as I can gather, is primarily concerned right now about getting as close as possible to their targets for bringing people to Canada as permanent residents. One of the things that has been problematic, however, is admitting permanent residents who are currently overseas. There are still large numbers of people who have been approved for permanent residence who have not yet been able to come to Canada. So technically, those people are not permanent residents yet. The Canadian government announced this week that many of these people should be able to travel to Canada now, but it remains to be seen what this impact will be.
Over the past year, the immigration department has prioritized admitting new permanent residents among people who are already in Canada. As part of this strategy, several temporary programs were created to allow for certain people who would ordinarily not have had as direct a pathway for permanent residence.
One of the things that has been an identified problem for this program is the requirement that applicants have to be working at the time that they apply and must also still be in status at the time that the application is approved. Unfortunately, these temporary programs do not allow applicants to apply for a work permit based on their submission of an application through that program. Ordinarily, if a person submits an application through one of the skills-based immigration programs the Canadian government has, they can also apply for a bridging open work permit if they have a work permit that will expire while their PR application is in process. But that option is not available with these temporary programs.
As a result, although these people have been targeted for immigration, they have not been provided an avenue to remain in status in Canada by virtue of pursuing this program. They have to find another means of doing that. At this point, employers probably need to talk to these employees about how they can help them to keep them in valid status in Canada.
But by the end of the year, the idea is that there should be an influx of people who have permanent resident status. That might be something for employers to pay attention to, as far as having a new pool of labour to choose from where you’re not as concerned about their status.
Permanent Residence for Students
GB: What about international students? Are they being granted PR status?
One of the things that employers probably want to consider is that there are many students who are staying longer and longer in Canada and that the government has tried to improve their chances for immigration to Canada. As a result, there are more and more international graduates that are going to be looking for work. So that’s likely going to be one of the largest sources of labour, as far as foreign nationals are concerned, but they’d already be in Canada.
Part of the reason why so many students come to Canada is because they have a belief that they’re going to be able to immigrate after studying here. The Canadian Government is actually very much complicit in creating that message. In the last year, what we’ve seen is that they’ve been more aware that they haven’t been doing a good job at the back end of helping students find ways to immigrate. So I think that’s something to watch. There’s probably going to be more focus on trying to facilitate the immigration of international students.
Interview with James D. Kondopulos, Employment and Labour Lawyer/ Founding Member and Partner at Roper Greyell LLP
Returning to the Workplace and Employees Who Refuse
GB: What are you hearing about British Columbians returning to the office?
A four step plan has recently been laid out by Dr. Henry, which depends on COVID-19 infection and transmission numbers remaining under control. The first significant milestone in that plan was June 15, when offices and workplaces became able to have small in-person meetings. On July 1, Dr. Henry has suggested that we can move to seminars and bigger meetings in person and, on September 7, the guidance is for offices and workplaces to fully reopen.
Do I think we’re going to return to exactly the way things were previously? No, I don’t. I think it’s more likely in many situations that we will see a hybrid model – combinations of in-person attendance at the office and remote work.
GB: What about mandatory office attendance? Are employers entitled to require that their employees physically attend work?
I actually just wrapped up a client call on that very point. In unique circumstances, the client will not be satisfied with a hybrid or remote work model, claiming that productivity currently sits at 20% of what it once was. This, of course, is unique to that particular work environment.
That client wants a return to the way things were pre-pandemic and it wants to do this earlier than September. So the question becomes whether it has the right, legally, to do that?
Under Dr. Henry’s four step plan, we are being encouraged to gradually return to work, albeit with appropriate COVID-19 safety measures still in place. I think the client I was talking to can start to return employees to work provided it does so in accordance with the required COVID-19 safety protocols.
I asked the client whether any representations were made to employees early in the pandemic about the permanency of their remote work arrangements. In other words, were the employees led to believe that the client was changing the contract terms, such that they could continue to work remotely into the future? If so, the client might be stuck and have to grapple with that contractual amendment, which now gives the employee the right to work remotely.
If in writing or through its actions, the client made it clear to the employee that the remote work arrangement was interim or temporary, it is the client’s contractual right as an employer to have its employees report to the office or workplace and perform their duties.
GB: What grounds might an employee have to refuse to return to the workplace?
The grounds which immediately come to mind are human rights related protections. An employee might have a unique medical condition such as a compromised immune system or chronic respiratory issue, for example, which would result in elevated risk for him or her when returning to the workplace. Employees can also refuse to return to work when there is a risk, a reasonable risk objectively assessed, to their health and safety.
GB: Would they have to provide documentation about that?
Absolutely. And I wouldn’t settle for the one line note; I’d ask for a more elaborate medical explanation, confirmation of the medical condition, and detail as to why the condition does not
allow reporting to the physical workspace and performance of the duties as they used to be performed. If there are inconsistencies in the story, they should be explored. If an employee is claiming he or she cannot be around others, has the employee been living insulated in his or her home and not leaving at all? Or has the employee been socializing and running errands for example? The same applies to those employees refusing to return due to the compromised health of a family member in the household.
Paid Leave for Vaccinations and COVID-19
GB: What does the law say about paid leave with regards to vaccinations and COVID-19?
In BC an employee has the right to up to three hours of paid time while he or she gets each of the first and second vaccination shots. Interestingly, there is no obligation to try and schedule the vaccination during off-work time, or to consider the employer’s staffing needs.
We then have paid COVID-19 sick leave. If an employee is symptomatic or does not feel well, he or she can stay away from work for up to three days of paid time. Interestingly, the employee does not have to have had a certain amount of time with the employer before accessing the leave.
The COVID-19 paid sick leave runs until December 31 of this year. There is a plan from the provincial government to have paid sick leave available from January 1 2022 into the future, the duration of which leave is still being determined.
I think that, now that there has been this experience, it will be easier to establish three days of paid sick leave moving forward, or possibly more. I think that creates an incredible burden for business. Generally my observation is, if an employer provides for paid sick leave for employees, that time is used. I appreciate the intention is to allow people to take time away from work when they are truly sick, and that is a good intention, but my problem is when additional sick time is treated essentially as paid vacation.
Legality of Mandatory Vaccination
GB: Will employers be able to make vaccines mandatory for their workforce?
By and large, I am not seeing mandatory vaccination programs being instituted in workplaces. In my view it raises human rights concerns.
There may be a religious basis, for example, for refusing to be vaccinated, or a medical basis or a pregnancy. There are also bodily integrity and privacy issues. Traditionally an employer could
not insist on an individual submitting to medical treatment, or frankly even inquire about whether he or she had submitted to such treatment.
The question is whether an employer is entitled to insist on those things in the face of pressing health and safety concerns. The pandemic has had a direct effect on employers and those around them, including the populations they serve. Imagine a long term care setting where the employer is working with vulnerable seniors. There may be a case to be made for a mandatory program in that environment. I have not yet seen the government in this province legislate mandatory vaccination in the long term care setting but Dr. Henry has said at least once that it is under consideration.
GB: Perhaps there’s a parallel to situations involving safety, machinery, and drug testing, which are already in play.
There’s a really interesting case recently out of Alberta which has to do with random drug and alcohol testing. It involves the non-unionized work setting and focuses on the obligation of an employer to maintain health and safety in the workplace. It is an interesting development where the employer is acknowledged to have additional authority in health and safety matters on the basis of an implied obligation to protect the workplace. My thinking is that it might have implications when an employer is considering mandatory vaccination policies. The case is an Alberta Court of Queen’s Bench decision. It is Phillips v. Westcan, 2020 ABQB 764.
Accessible British Columbia Act
GB: Is there anything else that employers should be aware of currently?
There’s a piece of legislation called the Accessible British Columbia Act. The aim is to promote the equal participation of persons with disabilities in British Columbia. It is a good piece of legislation with laudable goals but it does impose a number of fairly stringent obligations with respect to accessibility and rules around compliance and fines for non-compliance. The bill received royal assent on June 17, 2021. British Columbia now joins the federal jurisdiction and Ontario, Manitoba and Nova Scotia in having accessibility legislation. The legislation applies to government actors and other prescribed organizations. Time will tell how this impacts private enterprise in this province.