Answers to common questions during COVID-19 about workplaces and employment:
Question: If an employee chooses to work from home because of childcare, kids’ online learning/homeschooling, but their role is impossible to do at home, are we required to provide alternative work OR do they just go on leave?
Answer: There is no requirement for an employer to facilitate working from home. The employee would have job protection under the Infectious Disease Emergency Leave (“IDEL”). The employee may also be entitled to the Canada Recovery Caregiving Benefit or Canada Recovery Benefit.
Question: What if an employee works from home because of a medical condition, but we can’t ask for a doctor’s note?
Answer: If the employee requests an accommodation related to a protected ground under the Human Rights Code (i.e. disability in this case), then 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 this scenario.
Question: If an employee has a pre-existing condition that puts them at a higher risk for contracting Covid-19, is it sufficient for the employer to provide the employee with PPE and ask them to come into work in the office?
Answer: An employer will need to understand the nature of the person’s restrictions by requesting a medical opinion. Providing PPE may be an appropriate accommodation (as part of the accommodation process), but an employer should arrive at an accommodation plan based on a medical opinion and a collaborative discussion with the employee. This reduces the risk of a human rights complaint (HRTO Application), and makes for a happier workplace.
Question: Staff are saying their fear of coming into work is related to taking public transit. What can we do?
Answer: Tough question and it depends. Typically an employer’s workplace health and safety obligations wouldn’t include an employee’s commute, but in Covid times this is murky. An employer and employee should discuss the employee’s concerns about public transit, and whether there are alternatives to minimize the risk (e.g. modified schedule for off-peak travel times and better social distancing, employer subsidies for vehicle gas, mileage, and/or parking, occasional work from home, etc.). After that conversation, if the employer’s reasonable precautionary measures don’t suffice and the employee believes they are still unable to get to work, IDEL may be the best alternative. Employers can also require that employees use any outstanding vacation time.
Question: What if an employee does not want to come to work, despite the employer’s extensive health and safety measures, and they don’t want to go on IDEL – the only option they will consider is working from home. What are the employer’s options?
Answer: Again, employers can require that the employee use any remaining vacation time, or deem the employee to be on IDEL.
In some cases it may be appropriate to assert that an employee has abandoned their job. The threshold for job abandonment is high and first requires a careful review of the facts and communications between the employer and employee.
Question: IDEL eligibility seems very broad. When would it not apply?
Answer: Where an employee’s situation does not fall within the extensive list of reasons an employee may take IDEL, then IDEL will not apply. Yes, IDEL now applies very broadly!
The ripple effect of shifting government restrictions and an approaching Canadian winter will be significant for many employers. We know the many related legalities and issues are top of mind for businesses. We invite you to join us for our next webinar, “WINTER IS COMING! Covering Your Employer A*$ as We Head Indoors” during which we will continue the conversation and delve into a) employee leaves, b) liabilities if your employee or customer gets sick, c) seasonal layoffs and terminations, and d) other Q&As
Credit: “Covid-19 2nd Wave Workplace Law Issues: Part 2”, Spring Law, M. Baizley and D. Murray, Nov. 12, 2020 (from Lexology.com).
