Updating employment and workplace policies during COVID-19: Why it matters

The global pandemic has forced workplaces around the world to adapt very quickly to the current crisis. It is critical that during this unprecedented event, employers set out written expectations for their employees. Whether it is meeting the challenge of working from home, or setting guidelines for employees who continue to attend on-site as permitted by government order, employers should develop policies to mitigate risks and better manage their workforce.

This article sets out some considerations for employers as they develop these policies.

Working from home or at worksites

• Indicate that these policies are in force until “further notice by the employer”.
• Whether at home or in transit, remind employees of their obligation to keep information private and secure.
  • For further guidance, see our previous article on Workplace “Privacy Tips” during COVID-19.
• Set up guidelines on work hours and availability.
  • Advise workers that they are expected to be logged into devices during business hours and that this will be monitored.
  • Employers should consider whether an employee has child or eldercare obligations at home. What is the policy, if any, around “partial availability” hours? Encourage workers to discuss such issues with management.
  • Outline procedures for checking in with team leads or managers at the start and end of the business day.
  • Articulate expectations on how employees can log breaks or overtime.
• Indicate that existing policies, such as those relating to comportment and behavior, continue to apply despite other changes in the way work is being done.
• If applicable, set out how expenses are being covered differently (for example office supplies, long-distance calls or technical support).
• Advise workers that they must ensure that their workspace is safely set up in accordance with WorkSafe guidelines and free from distractions or disruptions. If employees think they may experience challenges with this then invite them to reach out to their managers for solutions.
• Alert workers to the potential for government measures regarding COVID-19 which may further affect workplace responsibilities.
• Incorporate any other issues as appropriate and confirm that the policies are subject to change due to the fluidity of the regulatory situation.

Discipline

• Employees must have advance notice about procedures or conduct which could affect their disciplinary status or employment status. Therefore, it is important to remind employees that policies apply during COVID-19 even when not in the workplace.
• Off duty and On Duty Conduct: Examples of off-duty and on-duty conduct which could: a) create liability for the employer, b) be a breach of trust between employer and employee and/or c) cause damage to the reputation or bottom-line of the employer (all of which should be subject to disciplinary procedures) include:
  • On-duty or off-duty conduct which violates an issued public health order.
  • Non-disclosure of recent travel or positive COVID-19 diagnosis.
    • Employers may discipline an employee for failure to disclose travel or diagnoses in accordance with public health orders because failure to do so could put the employer in breach of their obligation to protect their other employees.
  • Travel despite government prohibition about COVID-19.
    • If employees disregard government direction concerning travel, they could be held responsible for the consequences of mandatary self-isolation or travel restrictions which interfere with their return to work. Employers may permit the use of vacation days, sick days or unpaid leave to cover this period.

Consult with counsel before taking serious steps that may permanently affect an employee’s position.

 Privacy

• Consider policies concerning the disclosure of:
  • Employees’ information, such as COVID-19 diagnosis, exposure risk, or recent travel increasing risk.
  • Contact information to facilitate work-from-home, such as personal phone numbers or email addresses, and how the employer will treat this information.
• As a guideline, the risk of disclosure impinging on a person’s privacy rights must be balanced against workplace (and public) health and safety.
• For more information about this topic, see our previous article on Workplace “Privacy Tips” during COVID-19.

Human Rights

• Inability to work from home due to childcare or other COVID-related issues (non-medical).
  • Many provinces, including B.C., have now amended legislation to carve a COVID-19-related protected leave into employment standards so that an employer cannot terminate an employee under certain circumstances (including the inability to work due to childcare given the closure of schools and daycares).
  • Employers cannot discriminate amongst employees, such as by allowing exemptions for one but not another based on a protected ground (including marital status or family status).
  • Employers are advised to consult with counsel before taking individual or group action.

• Refusing to work with, or making disparaging comments about, people coming from certain regions such as Iran or China.
  • An employer has legal obligations under the Human Rights Code of British Columbia which continue to apply in the current COVID-19 situation.
  • An employer can neither discriminate nor tolerate discrimination by any of its employees against any person in their employment based on certain grounds, including race, colour, ancestry or place of origin.
  • Lack of an intention to discriminate is not a defence.
  • Remind employees of existing discrimination and harassment policies and that any discriminatory conduct or statements by employees are subject to discipline.
  • If the employer does not have harassment or discrimination policies, now would be a good time to develop them as they are required by WorkSafe BC. 

Conclusion

The above are some considerations that could help develop workplace policies that meet the new challenges posed by COVID-19. At the end of the day, every workplace is unique and would benefit from tailored advice to ensure that the employer has met legal obligations and mitigated risks in the face of a rapidly changing landscape.

Disclaimer: The legal ramifications of the global COVID-19 crisis are constantly changing. The information contained on this page is general only, may not apply to your specific situation, and is not intended to constitute legal advice.

Learn more at our COVID-19 Resource Centre.

Sarah Hentschel is a Senior Associate in our Litigation & Dispute Resolution Group, and focuses on Workplace and Privacy Law.