Can an employer discipline or remove from duty an employee it learned has been ignoring pandemic-related public health guidelines if the workplace involves people in close proximity?
Question: Can an employer discipline or remove from duty an employee it learned has been ignoring pandemic-related health guidelines if the workplace involves people in close proximity?
Answer: As businesses begin to open up, employers are faced with the task of ensuring that their employees are safe and their COVID-19 protection policies are in compliance with provincial health guidelines and occupational health and safety legislation. However, policies that are not followed are as valuable as the paper on which they are written. As such, employers must be diligent in ensuring that COVID-19 protection policies are strictly followed.
Employers have an obligation to provide their employees with a safe work environment. Allowing employees to blatantly disregard pandemic-related health guidelines not only results in the creation of a potentially unsafe work environment, it also exposes the employer to liability for failing to provide a safe workplace.
Therefore, when an employee is refusing to comply with pandemic-related health guidelines, discipline is likely warranted. An important first step to addressing this type of potential misconduct is to understand why the employee is ignoring or failing to comply with these health guidelines. The reason for this initial inquiry is to understand if the employee is simply refusing to comply or if they are unable to comply with public health guidelines. For example, if an employee is not able to wear a mask because of a health condition, the employer may be required to accommodate this employee with an alternative work arrangement or modifying their work conditions to accommodate this individual’s illness. Failing to do so may result in the employee filing a human rights complaint against the employer for discrimination on the basis of a protected ground. Accordingly, understanding the reason for the breach is important before imposing any form of discipline.
If you are dealing with an employee who is blatantly refusing to but is able to comply, discipline is likely warranted and should be carried out to maintain the safety of your workplace. Depending on the gravity of the offence, a reasonable starting point would likely be addressing the misconduct with the employee and advising them that it is a violation of public health guidelines and any relevant employer policies and that their behaviour must change immediately.
For minor infractions of public health guidelines, it is reasonable to adopt a progressive discipline approach and provide a few documented warnings to allow the employee the opportunity to change their behaviour. However, there may be circumstances where the conduct of the employee is so egregious — an example would be coughing on fellow employees or attending work while knowing they are infected with COVID-19 — that an immediate suspension or termination may be warranted, depending on the workplace.
As evidenced by the foregoing, each situation is context-specific and will require an individual assessment. Ultimately, if an employee is refusing to comply with public health guidelines, despite being able to comply, employer discipline is certainly warranted and, in some circumstances, removal from duty may be required.
Tim Mitchell practises management-side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or [email protected]