Canadian law firms are weighing in on what employers can or cannot make employees do as the country continues coping with the COVID-19 onslaught.
Top of mind for employers may be the ability of employees to refuse work if they believe a co-worker could infect them.
“It is possible that the COVID-19 pandemic may create the basis for a legitimate work refusal,” a brief from McCarthy Tetrault LLP said.
The firm said refusal to work could involve:
• the COVID-19 situation in the worker’s particular city, region, province and workplace at the time the refusal to work;
• the worker’s age and health;
• the type of workplace where the worker functions;
• the specific field of work and tasks;
• the number of workers at the workplace and social distancing availabilities;
• employers’ measures to prevent COVID-19 transmission; and
• diagnosis of a co-worker.
A brief from Bennett Jones LLP said occupational health and safety laws allow employees the right to refuse work with reasonable grounds to believe workplace conditions are dangerous.
Employers should assess situations based on facts and follow legislative frameworks to determine the correct outcome, the brief said.
A McCarthy Tetrault advisory said British Columbia legislation sets the threshold for unsafe workplaces at “undue hazard.”
Further, employers should defer to public health officials guidances when dealing with potential infections, Bennett Jones said.
“Where an employee has a reasonable basis to quarantine themselves but has not exhibited any symptoms, employers should consider not requiring medical documentation,” the Bennett Jones brief said.
For employees not able to work, employers should ask group benefits providers if ‘quarantined’ employees are eligible for short-term disability benefits. Paid sick leave could be used for such workers who should also be advised of employment insurance options. Employers will need to be aware of new options announced by Ottawa this week.
Bennett Jones warned employers to be in full knowledge of options. “There are potential risks, including constructive dismissal associated with not paying employees or discontinuing benefits while employees are under quarantine. We would encourage employers to obtain legal advice to discuss the appropriate strategy for their business.”
Where layoffs are on the horizon, Robert Weir of Borden Ladner Gervais said some employers might be covered by force majeur clauses on contracts.
“A thorough review of the collective or employment agreement is required before making decisions related to notice or layoffs, as well as the current directives and requirements of the health authority in the province where the business is operating. The determination as to whether the concept of force majeure applies may require a legal opinion,” Weir said.
Weir said where employees continue to attend the office, there should be as little contact as possible with work areas regularly cleaned and disinfected. Common areas should be sanitized, he said.
As well, he recommended staggering shifts to limit contact and limit numbers of people using rest areas simultaneously.
Weir said public health officials should be contacted if an employee tests positive for COVID-19. As well, their work areas should be sealed off.
“This may mean sending other employees home, closing stores and temporarily closing down workplaces,” he said.
Weir added that checking employees’ temperatures could be seen as an unjustified invasion of privacy.
“We are not in normal times, however,” he said noting risks and benefits of such activities must be weighed. “While temperature checking will not catch every case of COVID-19, as it is possible for someone with no symptoms and no fever to test positive, it will catch some cases. Employers also have to weigh the costs of such a program as, in most provinces, they will have to pay employees who report for work but are sent home.”