November 12, 2020
I have had numerous clients contact me with employment law questions related to COVID-19 and the various existing and new legislations that apply to the workplace at this time.
The most common questions I have received are related to employees requesting or or demanding that they be allowed to work from home, or refusing to come to the workplace.
Unfortunately, as the pandemic continues and infections increase, these questions are becoming more relevant to more employers and employees. I have prepared this FAQ reference for you with the information I think will be most helpful for you.
In addition to these questions, I prepared a more broadly based FAQ which I sent to you a few weeks. ago. It can be accessed on this link at the LeNoury Law website: FAQs COVID-19 and Employment Law
Preface: Safety in the Workplace
I preface this by noting that all employers have an obligation under the Employment Standards Act and the Human Rights Code to provide a safe workplace.
FOR TORONTO EMPLOYERS
On November 10 the Toronto Public Health Unit (PHU) introduced Specific Enhanced Measures in addition to the safety measures required under the provincial government’s new colour-coded Response Framework.
The Specific Enhanced Measures for Workplaces include
- Require an (internal) compliance officer to ensure implementation of occupational health and safety and infection prevention & control measures.
- Review HVAC systems to ensure they are in good working order.
- Promote work from home wherever possible.
As always, I encourage you to comply with the guidelines of all PHUs, and promote work from home appropriately if you are based in Toronto and it is possible for your company and its operations.
The following FAQs pertain more specifically to employee demands to work somewhere other than the workplace.
Employee Rights and Work From Home
As noted above, the employer is required to maintain a safe workplace. In the absence of a provable issue of safety, an employee does not have the right to work from another location because it is their preference.
Q: Are employees entitled to an accommodation to work from home?
A: Employees are not entitled to a work from home accommodation if they prefer and choose to work from home for reasons such as their children are not in school (i.e. they’ve chosen online learning during COVID-19).
I would encourage you to have a conversation with the employee about accommodation and the particular employee’s needs, however, there is no duty to accommodate, except under unusual and extreme circumstances.
Q: What if an employee doesn’t feel safe, they want to work from home and are set up to work from home?
A: This may be a viable option for you and your employee, and you may wish to agree with this arrangement, but there is no duty to accommodate, no obligation for an employer to facilitate a work from home arrangement for an employee.
However, if the employee is able to show that they need accommodations related to a protected ground under the Human Rights Code, the employer does have a duty to accommodate up to the point of undue hardship. While the employee is not entitled to choose their accommodation, work from home may be reasonable in some circumstances.
Q: An employer cannot ask for a doctor’s note, but what happens if an employee requests to work from home because of a medical condition?
A: If the employee is requesting an accommodation related to a medical condition, i.e. a disability, this is a protected ground under the Human Rights Code.
Under this scenario, the employee has an obligation to cooperate in the accommodation process, and to assist the employer in understanding what accommodations may be appropriate in light of the employee’s restrictions and prognosis. An employee would be required to provide medical documentation in support of their accommodation request.
Q: What if an employee is working from home, but would like to work even more remotely – perhaps in a different country – to be with an elderly parent during COVID-19?
A: In general, this would require that there be an explicit caregiving duty in place between the employee and parent(s). An employer is not required to agree to remote work from another country unless the employee is in a parent child relationship with that family member (e.g. an elderly parent) and is providing care that would trigger protection under the Human Rights Code ground of “family status”.
Other options: Infectious Disease Emergency Leave
In all cases where an employee has a work from home request that is based on preference rather than demonstrable necessity, I advise that you discuss the details of the situation and see if an agreement can be reached. If this is not possible, one option for employees may be to go on an Infectious Disease Emergency Leave (“IDEL”). However, the IDEL is an unpaid leave, so an employee on this leave would not continue working or being paid.
There are 6 general cases in which an IDEL may apply:
- Employee is in quarantine or isolation by a direction issued by doctor, nurse, Telehealth Ontario
- Employee is caring for a child/family member because of a matter related to COVID-19
- School or childcare is closed because of COVID-19 or because the employee did not send their child to school or childcare for fear of exposure
- Caring for a child who is sick with COVID-19 or who stayed home because of COVID-19 protocols at the school or child care (e.g. symptoms)
- Child had a symptom that did not automatically require the child to stay away from school or child care, but the employee was concerned the symptom may relate to COVID-19 and chose to keep their child home as a precautionary measure
- The same concepts apply broadly to family members
Q: Outside of IDEL, does the employer have to accommodate an employee’s requests that are based on preference, and not actual need?
A: No, if an employee is not on IDEL (i.e. the unpaid leave), an employer must accommodate an employee’s request for accommodation only if it relates to a protected ground under the Human Rights Code (e.g. family status, disability).