As businesses take steps to return to normal following broad economic shutdowns put into place to contain the Covid-19 pandemic, they will be facing many new challenges related to employees.
Heather Devine, a partner at Alexander Holburn-Beaudin & Lang, gave her annual Top 10 Legal Issues countdown to the Private Motor Truck Council of Canada (PMTC) this week during its virtual annual conference. It’s no surprise that most of this year’s issues centered around the pandemic, and employer-employee relations.
As employees return to the office, can employers force them to get vaccinated against Covid-19? In some circumstances, yes. But the requirements are that it’s “reasonable, necessary, flexible and clearly implemented,” Devine explained.
She warned “In the event an employee is laid off or terminated, one can expect they may file a complaint with the Human Rights Tribunal.”
However, the employee will have to provide proof supported by scientific evidence as to why they can’t take the vaccine. Employers should conduct a role-by-role workplace assessment before implementing a compulsory vaccination program, to determine who would be able to continue working from home and who can’t.
Asked if it’s alright to ask prospective new hires if they have been vaccinated, Devine said the job description should first clearly state vaccination is required. The reason must be supported by science (ie. space can’t be maintained, masks can’t be worn, etc.) She said a science-based third-party review by an expert would be needed to support such decisions. “Then, and only then, would I say you might have set the parameters to defend asking that question,” she said.
Hanging on to employees
Devine urged employers to consider temporary layoffs rather than constructive dismissal if letting go employees for circumstances related to Covid-19. Constructive dismissal occurs when there is “unilateral and significant change” to their working conditions, for example work reductions from 40 hours a week to 15.
Ontario has implemented the Infectious Disease Emergency Leave (IDEL) program to protect employees who must miss work due to Covid-related issues. “We have found in common law, the rights of employees when terminated due to Covid restrictions, the termination was found to be wrongful,” she noted.
Layoffs vs termination
Devine warned employers will “face scrutiny for termination” during the pandemic. But if implementing temporary layoffs, Devine said to be mindful of the length.
“Layoff is strongly and heavily legislated,” she said, noting that at a certain point extended layoffs will be considered mass termination. Devine urged Ontario employers to familiarize themselves with IDEL legislation.
Most trucking companies track their assets, but can employers also use apps to track their office employees who are working from home? “Yes, you can,” Devine said.
However, they should only be tracked during work hours. Devine warned some apps continue tracking outside work hours. Employers need to ensure this doesn’t happen, and also be aware of where the data is stored. All this should be included in a written policy signed by the employee.
Devine noted there are business recovery funding opportunities for businesses in B.C. and Ontario. However, if tapping into those funding opportunities, owners must be sure to follow all the requirements (ie. in B.C., a 30% revenue decrease must have been suffered).
Evolving customer demands
While B2C delivery is surging and truck freight is abundant, Devine said changes in consumer buying habits are having a negative effect on some fleets. And some are going bankrupt.
“There are starting to be quite a few carrier bankruptcies over the last few months,” Devine said. She also noted about 3,000 truck drivers in Canada remain unemployed. If your business is suffering, Devine once again urged owners to be aware of the legal implications around constructive dismissal, dismissal, and layoff, with layoff being the “safer bet” when applicable.
Trucking businesses need to protect against cyberattacks, Devine warned. She noted a U.S. flatbed trucking group was attacked last October, its files published on the dark web and held for ransom. In December, a trucking company suffered a malware infection and had to take its IT systems offline.
Devine said fleets should research vendors and work with those who take a serious approach to the security of the smart products they offer. “Are vendors aggressive and serious about security?” she asked.
She encouraged fleets to require vendors to complete a risk assessment and report back their results. Within the office, she said “Do not allow people to be casual with passwords or refuse to change passwords or leave devices open without passwords so they can come in in the morning and log on [without entering their password].”
Devine noted more than 90% of Fortune 500 companies have supplier diversity programs in place. “It promotes growth and can unlock new business opportunities for shippers and carriers,” Devine said of diversity.
She said employers should reach out to employees to ensure all have an equal voice. “Some people in our workforce have become isolated and we need to develop and maintain our company culture and community culture,” she said.
“Meta-data may be new to you, but it’s absolutely something that should be pursued and obtained,” she said. Data from truck telematics can clarify evidence in a case, help defend against wrongful dismissal lawsuits, and allow for early settlements and resolution in lawsuits following a collision.
When a company cannot fulfil its contractual obligations due to Covid-19, it may declare force majeure freeing it from any liability for damages. However, the circumstances under which force majeure is declared must be clearly spelled out in the contract, noted Devine, and Covid-19 wasn’t a thing when most of those contracts were written.
“Many of you had contracts drafted and put into force prior to Covid-19 coming onto the horizon,” she said. “How do you shoehorn Covid-19 into a contract when Covid didn’t exist?”
She said to look for language such as “public health emergency,” “pandemic,” or “communicable disease outbreak.”
Going forward, Devine warned against using boilerplate contracts for future protection. Define the event that would trigger force majeure and include thresholds of non-performance.
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