Some restrictions are lifting, but employers must remain cognizant of safety measures in the workplace
As the COVID-19 pandemic has progressed through a number of waves and variants, we are now seeing a large number of jurisdictions lifting all, or nearly all, public health orders relating to COVID-19. Some of the provisions which have been lifted include proof of vaccination requirements, masking, isolation requirements, and other protective measures.
As a result of these changes, many employers are considering whether and how to return employees to the workplace, for those who have continued to work remotely. Employers are also assessing what health and safety measures should remain or be implemented in the workplace as the landscape of the pandemic continues to change.
The removal of the public health orders and other COVID-19-related legislation does not necessarily mean that employers will want to immediately return to pre-pandemic practices. As the pandemic is not over, there are a number of considerations involved both in making this determination and implementing a return to work.
Assessing the workplace
First and foremost, employers have a legal obligation to ensure the health and safety of both their workers and patrons as far as is reasonably practicable. As a result, employers should assess the level of risk of exposure and transmission among workers and patrons of their business before making any changes to their COVID-19 policies, notwithstanding the lifting of public health restrictions related to COVID-19.
In conducting this assessment, employers may want to consider:
- the risk of transmission between workers in each type of position in the workplace
- the risk of adverse effects from infection with COVID-19 to individual workers or patrons that have identifiable vulnerabilities to the virus.
- what safety measures are available to be implemented in the workplace in the event of a return to the workplace where operations have been previously run remotely.
If occupational health and safety risks are identified in this assessment, employers can consider whether adding or maintaining particular safety protocols in the workplace – such as masking, vaccination or testing requirements – would be sufficient to ensure the health and safety of workers. In conducting this assessment, it is important to consider whether the health and safety measures are reasonable in the circumstances, as well as the risks of challenge by employees regarding their implementation or continuation of a practice.
Refusals
Absent contractual, human rights or occupational health and safety issues, employers can require employees to return to the workplace, generally speaking. However, if a full or partial return to the workplace is implemented, some employees may refuse to return. Where there is such a refusal, it is important that employers question the reason.
A duty to accommodate may be triggered where a protected ground under the applicable human rights legislation is engaged. An employee’s actions or words may be sufficient to trigger these duties.
Two protected grounds that could arise are disability and family status. For example, an employee who requests to not return to work for childcare, eldercare, or medical reasons may trigger the employer’s duty to accommodate. In these situations, an employer may need to explore the basis for the request and, potentially, the different kinds of accommodation that may be available.
Employees also have a right to refuse unsafe work under occupational health and safety legislation. Where the right is asserted, the employees who refuse are generally protected from discipline or reprisal for doing so. It is a fairly rare occurrence, but COVID-19 has brought about some concerns about the safety of returning to the workplace.
As a result, employers will want to ensure adequate safety protocols are in place to ensure the workplace is safe. Additionally, to prevent this type of refusal, employers should make a concerted effort to clearly communicate to employees what steps the employer has taken to ensure the safety of the workplace before changes are implemented.
Mental health accommodation
A subset of human rights issues of particular significance in implementing a return to work are mental health issues exacerbated by COVID-19.
It is important for employers to be mindful that not all disabilities under human rights legislation are visible or obvious. Therefore, it is particularly important in implementing a return to work to ask appropriate questions, listen, and document conversations with any individuals who push back on being recalled to the workplace. In many circumstances, employers will want to request documentation from the employee’s medical professional on the employee’s restrictions associated with their mental health condition to determine what accommodations may be put in place.
In addition to obtaining information from the employee, information should be gathered about the different kinds of adjustments that can be made to the work environment, such as partial or gradual returns or changes in duties. In unionized workplaces, unions have a duty to participate in the accommodation process, and this may include making exceptions to the collective agreement. The duty to accommodate is not constrained by contracts or collective agreements.
Although an accommodation request on mental health grounds does not necessarily mean that the employee must be permitted to work from home indefinitely, it may give rise to obligations for the employer to investigate and make adjustments in implementing the change.
Notice
Given the significant time which has passed since the pandemic began, employers may also want to consider whether remote work has become a term of employment and whether reasonable notice needs to be provided to employees to return them to the workplace.
Some employees have been working remotely for nearly two years. An employer who unilaterally requires an employee to immediately return to the workplace may be at risk of the employee filing a constructive dismissal complaint. A comprehensive remote work policy or remote work agreement will likely have addressed the intended temporary nature of remote work.
Unfortunately, these were not always implemented in the haste of moving to remote work at the beginning of the pandemic. As a result, employers should determine the possible risks of constructive dismissal in the circumstances and what steps may be taken in returning employees to the workplace to alleviate some of these concerns.
