Here, Stuart Ducoffe, HR and Employment Lawyer and Founder of e2r® answers several employment law questions related to managing the return to work as provincial governments slowly reopen businesses.
As businesses reopen nation-wide, many employers have outstanding employment law related questions, from leave of absences related to COVID-19 to refusals to return to work. Here, I answer the most common questions asked during our recent return to work webinar to help Canadian employers better navigate the transition back to the workplace.
1. Can employees refuse to return to work because they are concerned about taking public transportation to work?
The employer obligation under Ontario’s occupational health and safety legislation can be described as the obligation to take every precaution reasonable in the circumstances to protect the worker in the workplace. Accordingly, and assuming no other individual circumstances apply (i.e. entitlement to a statutory leave or to be accommodated under human rights legislation), an employee cannot refuse to attend at work on the basis of a fear of contracting COVID-19 through use of public transit. Public transit is not considered to be the employee’s workplace.
However, there are ways in which employers can accommodate employees that use public transit to commute to work. This can include encouraging employees with cars to drive to work and subsidizing gas, mileage, or parking. For employees who use public transit, employers should consider flexible scheduling, so employees don’t have to commute during busy times.
2. If employees notify management that they are continuing to care for children at home because the schools remain closed, can these employees nevertheless be required to attend at work?
No. Employees in Ontario who need to provide care to their children because a school or daycare has been closed due to COVID-19 are protected by a statutory job-protected leave of absence.
3. Can an employee refuse to return to work following a temporary layoff because they have concerns regarding COVID-19?
Assuming the employer’s business is entitled to open, the employee is required to attend at work unless the employee is genuinely concerned that engaging in work at the workplace will endanger their health and safety due to COVID-19 concerns. If the employee has a genuine concern, then they have a right to refuse work under Ontario’s occupational health and safety legislation. This will involve the conduct of an internal investigation and if not satisfactorily resolved, a Ministry of Labour occupational health and safety inspector will conduct a further investigation.
4. Can employers require temperature checks for employees prior to entering the workplace?
Although more controversial than the adoption of mandatory daily employee self-assessment through government websites or daily “fit for work” questionnaires, temperature testing prior to entering the workplace with infrared thermometers is generally considered appropriate in light of the pandemic.
5. Do employers still need to pay an employee who has been advised not to attend at work because that employee has been exposed to COVID-19 or is experiencing symptoms?
No. If the employees, however, have access to any company sick or personal paid leave plan or have any accrued vacation pay entitlement, they can be encouraged to avail themselves of this benefit.
6. How can employers navigate the issue of identifying employees that may be at greater risk of contracting COVID-19, such as older adults with weakened immune systems and individuals with underlying medical conditions such as heart disease and diabetes?
It is recommended employers implement a self-disclosure policy whereby employees are asked to self- identify they are at greater risk but without having to disclose personal details.
7. For companies that have established COVID-19 policies and properly trained staff, what comes next?
It is imperative that companies conduct ongoing audits to ensure compliance with whatever measures have been determined to be appropriate for their workplace. Those measures can include physical distancing, consistently require employees to complete daily “fit for work” questionnaires and periodic temperature checking. It is also important to ensure that managers are provided with the information necessary to respond appropriately to employee work refusals.
Stuart Ducoffe (B.C.L., LL.B.,CHRL) is a seasoned employment and labour lawyer and Canadian Human Resources leader as well as the co-founder of e2r®, which powers Ceridian’s HR Advisory Services. He is also a partner and co-founder of Woolgar VanWiechen Cosgriffe Ducoffe LLP and leads the firm's employment and labour law practice. Follow e2r® on Twitter and Instagram to stay up to date on Stuart and his team!View Collection