5 questions on the post-pandemic legal landscape

Lessons for the workplace and employment relationships of the future

5 questions on the post-pandemic legal landscape

The COVID-19 pandemic caused significant upheaval to Canadian employment law and the employment relationship. Canadian HR Reporter spoke with Denis Mahoney, labour and employment partner at McInnes Cooper in St. John’s, about the changes.

Q: How has the pandemic affected the employment law landscape in Canada?

A: “It's been the single biggest shift in employment law in such a compressed period of time that I’ve seen in my 30 years in law. For example, we haven't seen before such a rapid pace of legislative amendments that affect leave entitlements and discussion about changing benefits to provide support to employers and employees in the workplace, to deal with the impacts of the pandemic and how it's affected people's ability to attend work and to be supported at work.

“Secondly, the level of adaptation that the workplace has gone through has been rapid and significant. The best illustration of that is working from home and how the use of technology has rapidly changed. Leading up to the pandemic, there was a lot of discussion around the work-from-home principle. There was a lot of resistance to it, but when the pandemic forced it, it demonstrated that a lot of those apprehensions and risks could be managed.

“On the back end of the pandemic, there are two things I see happening. The first one is that there are significant implications on recruitment and retention. The whole question around employees now having choices about what they want to do for their future, being more selective and comparing workplaces, based on people's pandemic experience.

“Secondly, mental health has been growing in the evolution of the employment law discussion, but the impact and the aftershock of the pandemic have demonstrated that mental health, in my experience, has shot to the forefront and has really challenged employers on a variety of different levels — not just for employees, but for their families and the communities in which they operate.”

Legislation and case law during the pandemic put the focus on both new and traditional areas of concern for employers, according to one HR lawyer.

Q: What are some areas of the law with significant changes?

A: “There are two areas that I identify as having some of the biggest. The first one is privacy, which I think is shifting in the context of disclosure and how we have evolved to a mandatory vaccination environment. The right to individual privacy in terms of choice and the right to protect the body from intrusion in, for example, random drug-and-alcohol testing, always seems to get preferential treatment above safety.

“But if you do the same analogy in the context of the pandemic, the balancing has a different outcome. It requires that people disclose more information and there is more intrusion in the interest of safety. The right to privacy seems to have shifted against the importance of both public and workplace safety, which seems to be given the greater weight in the balancing of interests. The second one is the overall importance of safety. There has been, in my view, a growth in the recognition of the importance of safety, even in non-safety-sensitive workplaces.”

Q: What are some notable legal decisions coming out of the pandemic?

A: “One of the earliest decisions during the pandemic was the Taylor v. Newfoundland and Labrador [2020 NLSC 125] charter challenge that was decided by our Newfoundland and Labrador Supreme Court, about the travel ban that was implemented by the province. Justice Burrage concluded that travel restrictions may cause mental anguish to some, but the collective benefit of the population as a whole must prevail. That case, to me, really set the stage for a number of other cases across Canada that talked about the importance of the collective as opposed to individual rights.


Denis Mahoney

“From an arbitration point of view, the one that I found most noteworthy was UFCW, Loc. 1400 v. P&H Milling Group in 2021. The arbitrator concluded that they had an obligation to apply the Saskatchewan Occupational Health and Safety Act — which placed the duty on employers to take reasonable precautions for protecting the health and safety of workers in the workplace. They talked about the employer’s obligation to prevent COVID transmission in the workplace and how employers could face prosecution if there was an outbreak in the workplace. They found that employees have an obligation under health and safety legislation, which requires them to take reasonable care to protect their own health and safety and that of their co-workers, such as staying home if they’re sick.”

The pandemic’s challenges for both employers and employees set a delicate balance between the rights of both, says an employment lawyer.

Q: Will pandemic-related changes to employment law have long-term effects?

A: “Without question. The biggest thing that we see is employers asking the question ‘What is the workplace of the future going to look like?’ It certainly will not look like what it was two years ago. Each individual business will have to assess their recruitment needs, their retention challenges, how to adapt their workplace.

“The other one that I see is the value of interpersonal contact in the workplace. There's not a one-size-fits-all assessment, but I think that a lot of people are asking the question about the value of interpersonal contact in a real and meaningful way. Technology allows for contact that in some types of businesses creates value and better outcomes. There are others that have identified that the virtual employment relationship is insufficient and there is a need for contact that creates engagement and energy. The answers to those questions will inform the analysis of the workplace of the future.”

Q: What can HR professionals learn from the pandemic’s effect on employment law?

A: “I have three words to summarize what I think we all could learn from this — kindness, adaptation, and innovation. I think that through the challenges of COVID, the human condition has learned better the importance of kindness. We may be at times in adversarial relationships and not always fully appreciating what individuals are experiencing; the importance of kindness to deal with sometimes very sensitive individual employment situations is being learned. It’s not to suggest that kindness was not part of how we've done things before, but I think there's a greater awareness of the importance of kindness in the more complex employment relationship today.

“Secondly, our assumptions about our ability to adapt in the workplace can provide great lessons and opportunities. In many cases, it can become a competitive advantage.

“And thirdly, remember the importance of innovation in our workplace — using different systems to address employment processes is really important to a healthy workplace. Those that struggled more to adapt to the COVID transition, struggled in part because they were behind on the innovation scale, whereas those businesses that value and embrace innovation may have found it a bit easier.”

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