Has your employment been impacted by COVID-19
The impact of COVID-19 on Canadian business, employees and associates is unprecedented and the new business as normal has in some circumstances forever changed. Pettle Law is here to help Employers and Employees navigate the work from home environment as well as the return to the workplace.
Accommodating employee requests not to return
There are a variety of unique challenges employees are facing and there are a number of reasons a worker may be unwilling or unable to return to work. Employers should consider and develop policies for the following situations:
- Higher-risk employees: Certain individuals may be at greater risk of contracting COVID-19 or of having more severe complications from COVID-19. According to the Government of Canada, individuals at higher risk include older adults, people with weakened immune systems, and people with medical conditions including heart disease, hypertension, lung disease, diabetes and cancer. Recommendations for higher-risk employees may include implementing:
- A self-disclosure policy whereby employees can disclose that they are at a higher risk (without disclosing any personal details or sensitive medical information).
- Mitigation measures if the employer is or becomes aware that an employee is at higher risk (for example, working from home).
- Employees with childcare issues or caring for a sick relative: In some provinces, employees are eligible for job protected leaves if they are required to provide care to a person for a reason related to COVID-19 (i.e. school closure or sickness). If an employee requests to take a certain unpaid statutory leave of absence and meets the qualifying requirements of that statutory leave, the employer must grant it and may be precluded from terminating the employee’s employment for the duration in the leave. For employees making such requests, employers may consider:
- Permitting the employee to work from home, if possible.
- Whether the employee is eligible for paid leave in accordance with the employer’s existing contracts, policies and practices.
- Employees concerned about workplace safety: Subject to applicable OH&S legislation, workers have a statutory right to refuse work if the worker believes on reasonable grounds that the work constitutes a danger to the worker’s health and safety. OH&S legislation varies by jurisdiction, but requirements for work refusals generally include the following steps:
- the employee must report the hazard to the employer;
- the employer must take any necessary corrective action in a timely manner to address the hazard reported;
- if an employee believes their workplace is still unsafe, the employee may make a complaint to the OH&S authorities in their jurisdiction; and
- OH&S officers have authority to enforce OH&S legislation in a number of ways, including conducting inspections, issuing orders, writing violation tickets and issuing administrative penalties.
Employers should consult legal counsel where an employee has exercised their right to refuse to work to inform themselves of the applicable procedure in their jurisdiction.Employers should ensure that their accommodation policies and practices address these issues fairly and in accordance with their legal obligations pursuant to applicable human rights legislation. As we noted in our Quick Reference Guide for Employers, human rights commissions across Canada have published policy statements and general principles regarding COVID-19 and an employer’s human rights obligations. Human rights commissions within Canada have provided very clear guidance that employers should be sensitive to a variety of factors affecting an employee’s ability to attend the workplace such as caregiving responsibilities or pre-existing health problems (for example, if the employee has a compromised immune system).
