2021 was full of legal developments in employment law which will have important impacts on the workplace. As we kick off 2022, we discuss three significant employment litigation trends businesses will want to keep in mind.
The continuation of the COVID-19 pandemic and the proliferation of safe and effective vaccines had significant implications for the workplace in 2021—and we expect that the impact of the pandemic will continue to be felt across workplace issues in 2022.
In an effort to mitigate the risks presented by COVID-19, many employers instituted policies requiring workers to be fully vaccinated before entering the workplace. These programs received some arbitral and judicial consideration in 2021. For example, the Ontario Superior Court in Blake v. University Health Network held that arbitration is the appropriate forum for disputes about vaccination policies among parties to a collective bargaining agreement1. While a Canadian court has not yet ruled on the merits of a mandatory vaccination policy, arbitral tribunals themselves have generally found mandatory vaccination regimes to be enforceable.
We anticipate there will be ongoing and potentially increased consideration of these issues in 2022, especially if further federal and provincial measures are taken with respect to vaccine related-government mandates (including changes to reflect booster doses of the COVID-19 vaccine).
On November 30, the Ontario government passed the Working for Workers Act, 2021, ushering in meaningful change to two dimensions of the employer-employee relationship:
Judicial interpretation of employers’ obligations to create a sufficiently equitable, diverse, and inclusive workplace—an important issue in previous years—will gain increased prominence in 2022. Equity, diversity and inclusion issues have been squarely raised in several recent cases:
It is clear that courts are taking notice of the ways in which workplace policies and actions can amplify pre-existing issues of equity, diversity, and inclusion. It remains to be seen what steps the law, both public and private, will dictate an employer take to abate these issues. We expect that Canadian courts will continue to weigh in on the nature of these obligations in 2022.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
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