5 October 2022
What obligations do Canadian employers have to mitigate the spread of COVID-19 in the workplace?
The COVID-19 pandemic presented many challenges for Canadians. Employers and employees have had to adapt to changing public health measures throughout the past few years. Provincial governments lifted most, if not all of their public health mandates in early 2022. Although public health mandates are no longer in effect for most Canadians, employers still have an obligation to promote a safe and healthy work environment for their employees.
The Current State of Public Health Orders
In some provinces:
- Masking is no longer required indoors.
- Vaccine passport systems are no longer in place.
- Individuals who are infected or exposed to COVID-19 are no longer required to isolate.
- COVID-19 related building capacity limits are no longer in force.
Although the above precautions may no longer be required by a public health order, it is still recommended for individuals to isolate after a positive COVID-19 test or if they have symptoms of COVID-19. Workplaces should carefully consider what precautions they will implement to prevent the spread of COVID-19. The best response will be tailored to the specific needs of each workplace and will consider applicable workplace legislation.
Occupational Health and Safety
Employers and employees are sure to be familiar with Occupational Health and Safety (OHS) requirements in their workplace. The duty to ensure a safe and healthy workplace extends to taking reasonable measures to prevent the spread of COVID-19 and other respiratory illnesses. Like other workplace hazards, employers must assess and control the danger of COVID-19 in the workplace. It may be good idea to review workplace practices if a novel variant of the COVID-19 virus enters the community. Employees have a right to meaningful participation with the assessment and the control of the spread of COVID-19 in the workplace. Meaningful participation in workplace safety practices will mean different things for different workplaces. Employees have the right to refuse dangerous work if they believe there is a hazard at the work site that poses an undue hazard to themselves. Employers who have implemented reasonable controls to address the risk of the spread of COVID-19 are unlikely to be found to have breached OHS rules. Some reasonable measures recommended include:
Floorplans or physical barriers that reduce physical contacts in the workplace.
- Enhanced cleaning and disinfection procedures.
- Sick leave/absence policies that reduce infection risk.
- Staggered or adjusted shifts that reduce the number of employees in common areas at a time.
- Workplace rules or guidelines about wearing masks.
What constitutes reasonable practice will be specific to each workplace. Employers are encouraged to work with their employees to find reasonable solutions to prevent the spread of COVID-19.
Human Rights Legislation
Human rights laws prohibit discrimination against any person on the basis of a protected ground. Protected grounds are elements of a person’s identity, such as their disability, family status, religious belief or other specific ground, that are recognized by human rights legislation. COVID-19 has impacted everyone differently and employers should be mindful of how COVID-19 in their workplace may affect their employees. Employers are expected to make reasonable accommodations wherever their employees are being impacted in the workplace in connection with a protected ground.
Long Covid has presented some challenges to employers with respect to requests for accommodations in the workplace beyond the statutory entitlement to sick days. In these cases, employers should turn to their standard policies for illness and disability leave. These policies can and should include clear requests for medical information from the employer’s treating physician. Employers are entitled to medical support when an employee requests an accommodation. What you can and cannot ask for in this information is a sensitive matter and legal advice should be obtained to ensure employers are up to date with the restrictions and limitations.
However, having a medical recommendation from a physician does not automatically mean the employer must provide the accommodation. The employer is entitled to do an assessment of its business requirements in terms of determining whether it is able to meet the requests and if it determines it can, it should be very clear about the parameters of any temporary accommodations. The employer should always make clear to the employee that if the employee provides the medical information this will not necessarily mean the employer is able to meet the request.
With respect to employees who may be immune-compromised and feel more vulnerable in the workplace or transiting to the workplace due to the prevalence of COVID-19 this is a much more difficult issue which would have to be dealt with on a one-off basis and we would recommend seeking legal advice. But as in any case where an employee is requesting an accommodation due to medical issues the employer is entitled to medical information from the employee’s doctor to support the request.
At the end of the day, disease prevention protocols in the workplace protect all employees and so if the workplace has a higher number of vulnerable individuals that workplace would be well advised to assess prevention protocols which are maximized.
Even today, COVID-19 has continued to disrupt schools and childcare, which presents a challenge for employees with children. Although family status is recognized as a protected ground by human rights legislation this does not automatically translate to an obligation to accommodate employees with respect to challenges with COVID-19. Most human rights family status cases deal with situations where one employee was treated differently than all of the other employees in their request for a family care accommodation. Employers are well-advised to have general policies for these types of issues and to update them as various social issues arise. It also behooves a workplace facing such issues as school closures due to unforeseen circumstances to be temporarily flexible in general policies to assist all staff. However, flexible temporary policies by no means translates to permanent accommodations for certain individuals.
During the height of the COVID-19 pandemic, many employers decided to have their employees work from home. Some people enjoyed the greater flexibility that working from home provided them and gained a preference to work at home. However, personal preferences of employees are not a protected ground, and human rights laws do not require employers to allow employees to work from home without reason or to otherwise adjust their workplaces to suit personal preferences.
If you or someone who works for you is interested in a COVID-19 related accommodation, such as work from home arrangements or otherwise, consider contacting our office. We can help your workplace make the best decisions about how to navigate the requirements of human rights legislation in your province.
In addition to government regulation, any agreements made during the pandemic may affect the responsibilities an employer may have. This can include any verbal or written agreement that influenced how your workplace dealt with COVID-19. The obligations and responsibilities of an employer will depend on the contents of the agreement. If you are concerned about any employer obligations arising from an agreement in your workplace, we can work with you to review your obligations.
- Provincial governments have rescinded most major public health mandates for businesses outside of the healthcare sector. Masking may no longer be required, individuals may no longer be required to isolate, and capacity restrictions may be relaxed.
- COVID-19 may still present a workplace hazard for employees. Employers should still take reasonable steps to control the spread of COVID-19 and other illnesses in their workplace. What steps are reasonable will depend on each workplace.
- Employers will need to provide reasonable accommodations to employees who are impacted in the workplace due to COVID-19 in relation to a ground protected by human rights legislation.
- Employers are not required to allow an employee to work from home purely because of a personal preference of the employee.
- Workplace agreements may affect an employer’s responsibilities.
If you have any questions about your rights and obligations as an employer or employee, our employment lawyers across Canada can work with you to help ensure that you are making the most informed decision.
Dickinson Wright, Therrien Couture Jolicoeur, D’Arcy & Deacon LLP, McKercher LLP, Carscallen LLP, Emery Jamieson LLP, and Watson Goepel LLP all contributed to this article.