Since the inception of the COVID-19 pandemic, many employers have been under pressure to act quickly and respond to sudden twists and turns in the law. As societal norms have shifted and an increasing number of employers and employees are adapting to the realities of the virus, employers are facing new (but also familiar) challenges. Below are the top five issues that employers/managers are facing during these times and some tips on how to limit liability and exposure.
Employers in all industries have concerns about safety precautions for employees. It is imperative for employers to:
- Closely monitor information from official sources about changes in the law with respect to COVID-19;
- Make efforts to carefully document, in detail, precautions and steps taken to ensure a safe workplace;
- Take additional precautions to ensure the health and safety of all employees including extra cleaning and physical distancing.
If an employee becomes infected with COVID-19, their employer should contact public health for guidance on next steps without delay.
Under an order issued by the provincial government, employers that are reopening are required to operate in accordance with applicable laws and regulations and comply with public health officials’ advice and instructions regarding sanitation or social distancing. For workplaces that are open to the public, employers must ensure that members of the public maintain a minimum two-metre distance from individuals with whom they did not arrive and maintain frequent cleaning of any washrooms that are available for public use. Certain sectors are also subject to specific requirements for reopening, and employers should keep themselves informed of these requirements.
For in-person workplaces, employers must also screen workers for COVID-19 prior to or at the time the employee arrives at work, using the screening tool, to determine whether the employee may enter the workplace. Essential visitors, such as delivery people, need also be screened; this should occur upon their arrival to the workplace. Screening results should be documented and stored in the event that inspectors or public health officials require these results for the purposes of contact tracing.
Employee requests for leave
Employers may encounter employees who are unable to work due to circumstances related to the pandemic. Circumstances include employees who are sick, in quarantine, must care for their children whose schools and daycares have closed, must care for a family member due to a COVID-19-related matter, or who are stranded in another country because of travel restrictions. In such cases, employees can request to take an unpaid Infectious Disease Emergency Leave (the IDEL), which is available for the length of time that COVID-19 remains categorized as an infectious disease. No doctor’s note is required for an employee to request this leave. Despite the fact that this is an unpaid leave, it would be preferable for employers to continue benefits for employees during this time. Employees on the IDEL may also be eligible to apply for government benefits.
Terminations and layoffs
When it comes to terminating employees during COVID-19, the regular termination entitlements, which are dependent upon such factors as the terms of an employee’s contract, the employer’s payroll, and an employee’s length of employment will apply.
During COVID-19, many employers are “laying off” their employees. However, employees who have reduced or completely cut hours as a result of the pandemic from March 1, 2020 onwards are deemed to be on the IDEL which, at the current time, lasts until July 3, 2021. Not all employees in this situation are considered to be on this leave. Exceptions to this designation include: already-terminated employees; employees whose layoffs are deemed to be terminations under the Employment Standards Act, 2000 (the ESA), prior to May 29, 2020, when the layoff period expired; employees who were constructively dismissed and then resigned within a reasonable period prior to May 29, 2020; employees whose layoffs were the result of their employers’ businesses being permanently discontinued from March 1, 2020 onwards; and employees who were provided with notice of termination pursuant to the ESA since March 1, 2020, except in cases where the notice is withdrawn.
Communications, engagement, and employee morale
Many employers have been struggling to maintain employee engagement and morale in the wake of COVID-19 and work-from-home realities. Often there is a positive correlation between employee engagement levels and productivity. Remote work, or work from home, is an arrangement that many employers have now transitioned to, but comes with numerous obstacles, especially with respect to time management, routine, and efficient workflow. Many employers may find it challenging to manage employees who are scattered in different locations. To combat these difficulties, employers should maintain regular communications, arrange check-ins with employees, and create and implement systems that allow employees to work virtually. Employers may consider whether they need to update their policies to include a remote worker policy or to reinforce confidentiality while working remotely.
Though the subject of vaccines may still be a relatively new one for many employers, it is one that will become more and more relevant as an increasing number of vaccines are rolled out and a greater number of individuals are inoculated. With several cases demonstrating the potentially negative impacts of vaccines, amongst other factors, there is no doubt that some employers will encounter employees who are reluctant to get vaccinated.
In cases where an employer wants an employee to get vaccinated, the employer may first consider providing the employee with information about vaccine science, public health, and economic benefits, to encourage the employee to get vaccinated. However, employees may refuse vaccines for reasons such as religious beliefs or medical reasons, and requiring these employees to undergo inoculation would be a human rights violation. Employers can consider the following options: request that the employee conduct their work remotely or separately; require the employee take unpaid leave and provide them with the option to return to work after vaccination or the end of the pandemic; or terminate the employee. If the latter, which is an option that should be exercised only as a last resort, a solid termination package should be provided to the employee.
Refusal to be vaccinated is unlikely to be a just ground for a termination with cause, given the high bar for establishing cause in terminations. So long as the employer’s requirement for the employee to be vaccinated does not violate any human rights protections, the employer can consider pursuing a termination without cause. However, it may be preferable for employers to tread carefully in the meantime and keep aware of further guidance from public health and government authorities before making any potentially risky decisions on termination.
The COVID-19 pandemic has generated issues that the majority of employers/managers had never before faced. As this public health situation continues, conversations around employment issues will shift. New concerns will arise. Other situations will become familiar. Many of these issues have the potential to remain at the forefront for employers in the years to come, even if they eventually fade into the background. Consider how to keep your workforce safe, healthy and how mental wellness also plays a part in productivity and success.
Jessyca Greenwood is a lawyer at SpringLaw. She has more than a decade of experience as a trial lawyer with a focus on criminal law, professional misconduct, mental health advocacy, and with the way these areas intersect with the workplace. She also brings to her practice a deep knowledge of the impact mental health has on businesses, workers and employers. firstname.lastname@example.org @jessycadefence