October 16, 2020
I have had many requests from clients looking for some clarity and guidance related to various issues regarding employees and the workplace as the COVID-19 pandemic continues.
You may have similar questions, so I am providing you with information on a few of those topics, specifically:
- Obligations of employers and rights of employees
- Employee refusal to work due to safety concerns
- Employee refusal to work due to disability
- Employee preference to work from home
- Childcare and family status
- Infectious Disease Emergency Leave
Obligations of Employers and Rights of Employees
I will preface all of the information below by noting that we are all living in the midst of an unprecedented event happening not only in our workplaces, communities and country, but around the globe.
Legislation and interpretation of that legislation by courts has been done over the course of many years of more stable times, so cannot be applied in full to the realities of today.
Having said that, it is important to be knowledgeable and aware of the existing and ongoing regulations as well as amendments and new legislation introduced in the past few months. I hope you will find this information helpful in finding solutions that are compliant with the appropriate regulations while also responding to and addressing the uncertain situations faced by both you and your employees.
Employee Refusal to Work
Under the Occupational Health and Safety Act (“OHSA”) employers have a general duty to take every precaution reasonable in the circumstances for the protection of a worker.
‘Reasonable in the circumstances’ is difficult to determine absolutely since there is no precedent for the circumstances we currently face.
Section 43 of the OHSA states that a worker who may otherwise be subject to discipline for insubordination is entitled to refuse work in certain circumstances where he or she ‘has reason to believe’ that performing the work would endanger himself, herself or another worker.
During this pandemic there is sometimes conflicting information from both official and unofficial sources, making it difficult not only to establish ‘reasonable in the circumstances’ on the side of the employer but also a ‘reason to believe’ on the side of the employee.
Whatever the circumstances, the OHSA stipulates that, in order to lawfully refuse work, the employee must report the refusal to his or her supervisor, who is required to investigate the hazard in the presence of the worker or a health and safety representative, if applicable. Following the supervisor’s investigation, if the worker “has reasonable grounds” to believe there is still a danger, he or she may continue to refuse work and an inspector from the Ministry of Labour may be notified.
As is the case with many situations, discussions between employees and employee representatives are preferable to these kinds of confrontation, and the OHSA permits an employer and employee to agree to safety precautions that address an employee’s concerns.
If an employee is reticent to return to the workplace due to health and safety concerns, my suggestion is to openly and candidly discuss the protections you have implemented to keep workers safe and mitigate the risk of contracting the coronavirus.
Conducting the screening of employees mandated in Ontario as of September 26, 2020 and using the downloadable screening questionnaire from the government is an action that demonstrates good faith and that precautions are in place to protect the safety of everyone in the workplace.
You can download the Screening Questionnaire at this link:
Workplace Screening Guidance.pdf
You may also find it helpful to review with employees the actions you have taken in the context of the government’s Reopening Guide and Toolkit, which includes suggestions for physical and operational methods to increase workplace safety.
Click here to download the Ontario Workplace Reopening Guide and Toolkit
Refusal to Work Due to Disability
The Human Rights Code protects against discrimination on the basis of disability, which is broadly defined and could include an otherwise manageable illness that is impacted by a hazard in the workplace. For example, asthma in many work settings would not pose a significant barrier to safe and productive work. However, due to the COVID-19 pandemic, individuals with severe respiratory issues may be concerned about their acute vulnerability to contracting the virus.
Employers are required to accommodate disability to the point of undue hardship. The threshold of undue hardship means that an employer is required to withstand a reasonable level of hardship in an effort to accommodate employees.
When an employee seeks accommodation, an employer is entitled to sufficient information to respond to that request. However, generally speaking employers are not entitled to an employee’s medical records or diagnoses.
Preference to Work from Home
Assuming a workplace is reasonably safe, an employee’s generalized anxiety or preference to work from home does not in itself justify the refusal to return to work.
You may have employees, though, that are still reticent to return to the workplace even though significant safety precautions have been implemented.
There is no legislated right for an employee to work in any place other than the place that has been determined by the employer, however, I would advise that you consult with employees who would prefer to work from home. If this can be done without disruption to your organization’s operations, it may be an option.
If possible, I would also consider an option of the employee working in the workplace for some portion of the work week and at home for another portion.
Some employees may be reluctant to return to work because of the availability of the Canadian Emergency Response Benefit (“CERB”) or the Canada Recovery Benefit (“CRB”) replacing it which is expected to provide income support to workers so long as such workers are available and looking for work.
According to Bill C-2, An Act relating to economic recovery in response to COVID-19, which has not yet been enacted, a worker is not eligible for CRB if he or she “failed to return to their employment when it was reasonable to do so if their employer had made a request.”
Childcare and Family Status
With the uncertainty surrounding the safety of students attending school, the level of general anxiety may be elevated for employees who have concerns about returning to work for reasons associated with child care. Some employers may request accommodations to assist them in dealing with family responsibilities.
The accommodation of family status is challenging even under normal circumstances. As a result of the COVID-19 pandemic, accommodation may be even more difficult for several reasons:In the event of an outbreak at a given school or daycare, employees may suddenly be responsible for providing childcare due to a quarantine orderDue to legitimate fears about COVID-19, a child with a light cold might be directed to stay at home unless he or she can produce a negative COVID-19 test resultSome schools and school districts that are returning to in-classroom learning are still relying upon hybrid models in which students are learning remotely for portions of the day or weekAlternative childcare options, such as grandparents picking up children from school, have been limited by health and safety concerns.Recognizing that these are uncertain times for all concerned, my suggestion again is to make appropriate inquiries to understand an employee’s issue and situation.
Possible accommodations might include a flexible schedule and/or the opportunity to work from home, or at home on specific days as suggested earlier.
As an employer you are not necessarily obligated to provide the type of accommodation requested by an employee so long as the accommodation you do offer adequately addresses the family status issue.
One thing to note is that if operational concerns are cited as a a reason to deny certain accommodations, any such concerns must be concrete and not theoretical. The employer must provide evidence to support a denial of accommodation.
If the employee in question has been working from home for months without appreciable impact on your organization’s operations, claiming that such an arrangement is untenable may prove difficult without a clear explanation as to why.
Infectious Disease Emergency Leave
If ongoing childcare concerns make a sustained return to work impossible, an employee is entitled to take an unpaid Infectious Disease Emergency Leave (“IDE Leave”) for reasons related to COVID-19, such as the need to care of a designated family member because of a matter related to COVID-19.
This includes but is not limited to school closures. Currently, there is no specified time limit for how long an employee initiated IDE Leave can last, provided that COVID-19 remains a designated infectious disease. Contact me for more details and further guidance if you believe the IDE may apply to a situation with one of your employees.As I noted at the beginning, these are truly unprecedented times and, as we are all aware, the novel coronavirus does not play favourites in regards to who it infects. I suggest that empathy and discussion and openness with employees is the best course in addressing their concerns while also ensuring that your organization is operating as continuously and efficiently as possible.
I hope that you, your family, friends and loved ones will remain safe and healthy while complying with the advice and guidance of our public health officials.