Our last installment focused on preparing physical workplaces for reopening, having regard to public health and occupational health and safety requirements. At this point, employers following along are alive to critical legal considerations that are unique to physical workplaces. In this installment of The Canadian Employers’ Reopening Playbook we discuss complex legal and practical considerations to return workforces to “COVID-prepared” workplaces.
Recalling the Workforce
1. How should employees be called back to work, and in what order?
As noted in our last installment, the return to work process should happen gradually. Employers should only call employees back to work if:
a. there is work for the employees,
b. the work can be done safely, following occupational health and safety rules, and
c. the employer can comply with general public health guidance/requirements.
As a starting point, employers should consider first returning employees who are necessary to reopen the workplace, or are unable to work from home. While there is no precise order for selecting employees to return back to work, employers should ensure that their selection criteria are based on legitimate, non-discriminatory considerations. Employers need to be mindful that certain decisions, such as recalling young and healthy employees over older employees who may be more susceptible to COVID-19, may be well-intentioned but may amount to discrimination under applicable human rights legislation. At the same time, and as discussed below, employers should be prepared to address concerns raised by employees who are high-risk, are affected by provincial daycare, school or camp closures, or who are simply afraid or unwilling to return. In some cases, accommodations or leaves of absence may be appropriate; in others, employee insubordination may need to be addressed with a firmer approach.
The earliest set of employees likely to be recalled are those currently on temporary layoff, since employers are likely to begin their return to work process by recalling employees who could not otherwise work from home. Before recalling temporarily laid-off employees, employers should review the applicable employment standards legislation, company policies, and/or collective agreements for parameters and requirements relevant to recalling employees, including notice requirements, recall priority rights, and at what point a temporary layoff amounts to a deemed termination. To avoid the consequences of a deemed termination, employers may wish to use a “first off, first in” approach to recall, ensuring that employees who are closer to the deemed termination threshold are returned to the workplace soonest.
Layoff considerations in Alberta, British Columbia, Ontario, and Quebec:
|Jurisdiction||Is notice required to recall employees?||How long can I lay employees off for?|
To be valid, the notice must:
|Maximum Period: 60 days in a 120 consecutive day period, which has been extended to 120 days in response to the pandemic. The maximum period can be extended for a longer period of time if a worker consents and receives wages or benefit payments during the layoff.|
|British Columbia||No.||Maximum Period: 13 weeks in a period of 20 weeks, which has been extended to 16 weeks in response to the pandemic.|
|Ontario||No.||Maximum Period: 13 weeks in a 20 consecutive week period. The maximum period can be extended for a longer period of time (i.e., less than 35 weeks in a consecutive 52-week period) if employers provide some form of compensation, such as pay or benefits, during the layoff.|
|Quebec||No.||Maximum Period: 6 months.|
Other provinces will have their own rules regarding temporary layoffs. Please refer to the applicable employment standards legislation for further details.
2. What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?
Generally, employees have a right to refuse to work if they have reasonable grounds to believe that the work is dangerous. If a worker exercises their right to refuse unsafe work, an employer must follow the investigatory and reporting process outlined in the applicable occupational health and safety legislation. While the procedural requirements for work refusals vary by jurisdiction, the general response is as follows:
- internally investigating the situation with the worker and a health and safety representative;
- document the work refusal and the investigation; and
- implement any necessary action to remedy the hazard, if any.
If the employee’s refusal is justified, the employer has a positive duty to re-establish a safe working environment. If the refusal is not justified, the employee should be directed to return to work. If the employee disagrees with the employer’s determination, the employer should notify the provincial occupational health and safety body. A health and safety inspector/officer will be appointed to determine if the work refusal was lawful or not.
Employees who exercise a right of refusal must be paid until the situation is resolved. That said, the employee must remain available to perform alternative duties that may be assigned by the employer. Employers are not required to pay, and may discipline, an employee who refuses to return to a workplace that has been rendered safe. That being said, employers should seek legal advice before disciplining an employee for a work refusal.
3. Are there employees or groups of employees that should not be immediately required to return?
Employers should refrain from recalling employees who are able to effectively work remotely. By doing so, employers will mitigate the risk of exposure to those that need to be at the workplace.
Similarly, as a safety precaution, employers should restrict the use of non-employees, including contract workers, during the early stages of reopening. Employers should develop a policy outlining this restriction, the purpose of the restriction, the time period of the restriction, as well as the employer’s right to reverse the restriction. That being said, if employers need to hire or call back non-employees, employers should develop a policy that clearly states that non-employees are required to comply with the company’s COVID-related policies and/or procedures.
While employers should not select or overlook employees on the basis of a perceived vulnerability (or relative lack of vulnerability), they should consider any legitimate requests to work from home. These requests should be handled carefully and with consideration for protections under employment standards legislation and human rights law. Likely reasons for requests to work from home include:
- Childcare/Eldercare Obligations: In certain provinces (e.g., Ontario), employees are entitled to a leave of absence if they cannot return to work because they are affected by school or daycare closures or need to care for designated family members affected by COVID-19. Where an employee cannot return to the workplace or work productively from home, this type of unpaid leave may be appropriate. However, employers should pay careful attention to what documentation (if any) can be required from the employee – in many cases, employers may be expected to take employees’ requests at “face value”. If employees can work productively from home and are simply requesting an accommodation in terms of work location, such a request can be dealt with through the employer’s normal accommodation processes.
- High-Risk Employees/Family Members: In certain cases, public health guidance may recommend against an individual unnecessarily exposing themselves to COVID-19, such as where the employee is in a high-risk category or lives with a family member who is high-risk. Where these employees can work productively from home, employers should consider providing a work location accommodation through its normal accommodation processes. Where these employees cannot work productively from home, employers should consider an unpaid leave of absence. In some provinces, this type of leave may be protected by employment standards legislation. In other provinces, human rights laws that protect employees with disabilities or who are associated with persons with disabilities will likely require this type of accommodation.
- Mental Health Conditions: In some circumstances, the risks associated with returning to work in a pandemic may trigger or exacerbate mental health conditions, such as anxiety (including obsessive-compulsive disorder) or mysophobia (germophobia). In most cases, requests to work from home on this basis will not be protected by provincial employment standards legislation. However, since mental health conditions may be recognized disabilities under human rights law, employers should follow their normal accommodation processes and, if a disability exists, reasonably accommodate the employee.
Implementing Testing and Other Screening Measures
4. Can an employer screen or temperature check an employee for COVID-19? What about other medical testing?
In Canada, medical assessments or tests to verify or determine an employee’s fitness to perform work are only permissible in limited circumstances (i.e., bona fide occupational requirement). Generally, absent express consent from employees, Canadian employers are prohibited from requiring employees to undergo mandatory health-related testing, including health screening and temperature scans.
That said, employers have an obligation to provide a safe environment for employees. Given the infectious nature of COVID-19, health screening and temperature scans are arguably a bona fide occupational requirement and a reasonable precaution to protect the health and safety of workers.
At this time, only medical tests approved by Health Canada can be imported for use in Canada and only qualified healthcare professionals may request access to such tests. As such, Canadian employers do not have access to, and are prohibited from conducting, any other forms of testing (i.e., diagnostic and/or antibody testing) for COVID-19.
5. How should screening measures and/or temperature checks be implemented and conducted?
As a best practice, employers should provide advance written notice and obtain employee consent to implement health screening and temperature scan measures.
Health screening questionnaires and temperature scans should be administered in the least invasive and most confidential manner possible. As a best practice, and to avoid any potential privacy violations under local law or at common law, information obtained through screening and testing should:
a. not be collected, used, retained and/or disclosed for any purpose aside from determining whether the employee should be permitted to enter the workplace;
b. be anonymized prior to recording, where recording is necessary; and
c. be safeguarded against unauthorized use and/or disclosure.
Additionally, where an employer requires temperature scans, steps should be taken to ensure that the scan is conducted by an individual with occupational or public health training, to ensure consistent testing procedures and reliable results.
Finally, whenever possible, multiple screening measures and common sense should be used to avoid “false positives”. For examples, employees experiencing menopause or employees with a history of respiratory issues may appear unfit to return to the workplace if only one screening measure if used (e.g., temperature scans or questions about coughing or shortness of breath), but may be able to continue working once other explanations are taken into account.
6. How often can employers screen individuals entering the workplace for COVID-19?
There are currently no restrictions on the frequency of COVID-19 screening measures in Canada. Given the infectious nature of COVID-19, employers are likely justified in requiring employees to complete health questionnaires and undergo temperature scans on a regular basis (i.e., daily).
7. Can employers refuse access to employees who do not consent to screening measures, including questionnaires and temperature checks? Can employees be disciplined for their refusal?
As noted above, employers have a general duty to take every precaution reasonable in the circumstances to protect the health and safety of its workers. Therefore, employers may refuse access to employees who refuse to participate or consent to the screening measures, including temperature scans.
Employees who refuse to participate or consent to the screening measures can be sent home without pay. Where the screening measures have been introduced as a required company policy, employees who routinely refuse to participate may also be subject to disciplinary measures, as would be the case for willful violations of other company policies. However, before penalizing employees, employers should consider if any characteristics protected by human rights laws may be in play. If so, accommodations may be appropriate, such as placing the employee on an unpaid leave of absence but without any other disciplinary measures.
8. What if an employee tests positive, exhibits symptom, or is suspected of having COVID-19?
Employees that test positive for symptoms related to COVID-19 should be advised to go home, self-isolate, and call a medical health professional to discuss their symptoms, treatment options, quarantine requirements, and next steps regarding formal assessment and further testing.
Employers should take all reasonable measures, to the extent possible, to protect the identity of any employee who is suspected of having COVID-19.
While an employer is not required to pay an employee who is unable to work due to COVID-19, except as required under company policy or the employment agreement, employees are entitled to an unpaid job-protected leave of absence in all provinces across Canada.
Stay tuned for our next alert, where we’ll discuss how to operate in a changed environment.
We also welcome you to join us for The Canadian Employers’ Reopening Playbook webinar this Friday, May 29. For more detail and to register, please click here.