Return to Work in the “New Normal” – Employment Rights and Responsibilities
As businesses throughout the province of Ontario gradually begin to reopen, many employers and employees have questions about what the employment relationship will look like in the era of COVID-19.
The government of Ontario has recently published industry-specific guidelines to assist employers with keeping workers and the public safe. These can be found at: https://www.ontario.ca/page/resources-prevent-covid-19-workplace. The government has also released material dealing with workplace health and safety: https://www.ontario.ca/page/covid-19-coronavirus-and-workplace-health-and-safety.
Employers have an obligation to protect the health and safety of their workers. This includes taking reasonable precautions to prevent the spread of infectious diseases such as COVID-19. We recommend that employers create return-to-work policies using these government resources as a starting point and in consultation with their legal counsel.
For some employers, this may require re-thinking how employee health issues are handled. In the past, many employees have persisted in coming into their workplaces sick, for fear of reprisal from their employers (whether that fear was justified or not). It is important that employees understand that if they are experiencing symptoms, they must stay home and will not face any repercussions for doing so.
Where feasible, employers should encourage their employees to continue working from home or consider whether offering more flexible hours and/or a partial work from home arrangement might be an option. These steps will help reduce the number employees in the workplace at any given time. Having said that, employers should also be mindful that their responsibility to ensure a safe work environment may extend to a home office as well. For example, the CBC recently reported on the potential health risks associated with improvised home offices.
If employees will be returning to the premises, it is important that a workplace audit be conducted to investigate issues such as the need for personal protective equipment, screening of staff and visitors, methods to ensure social distancing, and cleaning and sterilizing of surfaces and workspaces. Employers should develop a policy for screening employees and dealing with symptomatic employees.
Now may also be a good time for employers to revisit their work from home policy, use of technology policy, travel policy, and procedures for handling confidential information.
What if an employee must stay home because of an emergency order (i.e. isolation or quarantine) or to provide childcare?
The Ontario government has created a new unpaid infectious disease emergency leave for employees who need to be home sick from work, in isolation or quarantine, or who need to remain home in order to care for their children or other specified family members. Employees who take emergency leave have job protection, and there is no maximum number of leave days (although the employee must continue to meet the eligibility criteria).
Can an employee refuse to return to work because they believe it will be unsafe?
Employees have a right to refuse unsafe work. As a starting point, we recommend that employees raise any potential health and safety concerns with their employer. Every situation is unique, and what is reasonable will vary depending on the nature of a workplace (i.e. retail store versus dental office).
We encourage employers and employees to engage in a dialogue and to work together to reach an agreement on what type of protection is necessary. Employers should be mindful of their duty to accommodate. If the employer investigates and determines that the workplace is safe, the employee must return to work or seek intervention from the Ministry of Labour (which can investigate).
Can an employer force an employee to stay home?
The Employment Standards Act, 2000 does allow employers to temporarily layoff employees or reduce their hours. Recently, the government of Ontario extended the length of time employees may be temporarily laid off. There may also be an argument that an employer has a right to force an employee to stay home if they have developed symptoms of COVID-19 in order to ensure the safety of other workers. Employers and employees should be mindful as to whether an order that an employee stay home and/or a temporary layoff could be considered a constructive dismissal at common law.
For further information and to attend our information session,“Zoomside Chat” – Charting a Course for Reopening and Managing Risk on June 18, 2020 at 12:00pm, click here.
The situation is constantly evolving, and every workplace faces unique challenges. If you are an employer reopening, or an employee who has concerns about returning to work, we encourage you to contact our Kanata office for a no obligation consultation today.