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Be mindful of legal considerations when reopening, says legal expert

Brad Smith answered post-COVID questions during virtual Workplace Safety North event
(Adobe Stock photo)

As employers ponder their legal obligations surrounding the stage-three opening of the province, lawyer Brad Smith said it’s important to put everything into context.

Smith, who specializes in labour relations and employment law with the Thunder Bay firm Weilers Law, spent his July 15 lunch hour answering questions during the third installment in Workplace Safety North’s COVID-19 Conversations series, which explores pandemic-related topics of relevance to Northern Ontario workplaces.

While some guidelines, such as mask wearing, have been introduced by local health units, considerations like the right to refuse work fall under the province’s Occupational Health and Safety Act.

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To further complicate matters, Smith noted, the situation is changing on an almost daily basis as more is learned about the novel coronavirus and government and health authorities adjust their legislation and policies accordingly.

“The questions that you have really have to be context-sensitive of what area of the law you’re talking about, because you’re not necessarily always going to get the same answer every single time,” he said.

When it comes to making sure a workplace is safe for employees to return, Smith said employers can refer to the Occupational Health and Safety Act, which outlines their duty to take every precaution reasonable to protect their employees.

Generally, he said, they should follow the standards set out for their sector.

But he emphasizes that employers must keep up to date with changes made by multiple authorities in their jurisdiction – whether it’s the health unit, the municipality, the province, or the federal government – as they emerge.

“A lot of this is truly new, and when we look at the ‘every precaution reasonable’ standard, it’s basically saying as an employer, you can’t be negligent,” Smith said. “So that requires the employer to inform itself.”

That includes creating and distributing policies about training, personal protective equipment (PPE), and any special equipment being used, he added.

If an employee refuses to work under the belief that the workplace creates an environment in which they could contract COVID-19, Smith said employers should follow the process set out in the Occupational Health and Safety Act if they’re provincially regulated, or the Canada Labour Code if they’re federally regulated.

The guidelines are very similar: identify what’s unsafe and address the risk so the worker can return to work. Or, if the issue can’t be resolved, the worker would report the risk to, for example, the Ministry of Labour, which would do an inspection, and an order would be made against the employer, who would then address the hazard so the worker can get back to work.

If an employee chooses to leave the workplace because of an underlying medical condition due to COVID-19, Smith said the employer must make accommodations for the worker.

But if an accommodation can’t be made, that doesn’t mean the employee can be fired, Smith said, as that would be a violation of the Human Rights Code.

Instead, the person retains the right to return to the same position or comparable employment with the business.

“Unfortunately, we can’t put a time limit on that,” Smith said. “It’s unique to the individual, because, as we all know, a human rights assessment is very individualistic to that employee and his/her needs and the circumstances of the workplace.”

Smith acknowledged that some employees would continue working from home, where they might be more distracted by childcare duties, pets, or other activity in the house.

He advised employers to create a working-from-home policy outlining their expectations.

Holding regular virtual meetings, providing an outline of the work day, and checking on their work progress are all ways in which a supervisor can keep employees on task, he noted.

But when an employee doesn’t fulfill their obligations under their work contract, the employer could have a case for disciplinary action or termination.

“If the employee’s supposed to work 9 to 5, fundamentally, that doesn’t make any difference whether or not that’s at the office, it’s in their car, it’s at the client workplace, or it’s at their home,” Smith said.

“It’s the same basic bargain: they’ve got to provide whatever they’ve agreed to provide.”

So far, there isn’t any federal or provincial requirement for an employee to disclose to their employer if they’ve tested positive for COVID-19, Smith said, although that may change as the economy continues opening up.

But employers do have a duty to protect the rest of the workforce, he added.

That might mean that an employer creates a workplace policy that prevents an employee from returning to work until they provide a negative COVID-19 test.

The same general principle would apply to a vaccine, if and when one is developed.

With current predictions suggesting inoculation is still months or years away, Smith suggested there’s a “pretty good argument that the law will change” and any requirements could be introduced at the provincial or federal level.

If not, employers could introduce a workplace policy that makes being vaccinated against the novel coronavirus a condition of employment.

“It’s just like any other job requirement,” Smith said. “If the employer requires by policy, in terms of employment, that they have to be vaccinated, and they don't get the vaccination, then that might mean that the employer does not have to allow them to enter the workplace.”

Any employee still declining to be vaccinated would be protected under the Human Rights Code, Smith said, and would have to be accommodated up to the point of undue hardship.