Employers are facing a growing number of legal considerations as they continually adapt policies amid the ongoing coronavirus pandemic, according to a recent webinar hosted by Hicks Morley Hamilton Stewart Storie.
In Ontario, there’s been a substantial increase in workplace inspections through that province’s occupational health and safety act, said Ted Kovacs, a partner at Hicks Morley. As a result, employers need to ensure employees are aware of safety protocols, particularly for risky areas like break rooms.
“The focus on health and safety has never been more intense. If this vigilance isn’t maintained, the employer risks an order from the ministry of labour. If an outbreak occurs, orders can partially or completely shut down operations.”
While coronavirus testing and vaccination programs and policies bring an assumption of risk for employers in the form of potential legal challenges, these considerations are governed by contextual factors, he said. These include the risk to employee health posed by increased cases and the presence of coronavirus variants to the nature and physical layout of the workplace itself. However, in the absence of case law pertaining to the coronavirus and workplaces, employers are advised to consider an array of factors.
“We recommend a balancing approach. Any litigation will balance all these factors, including risk management and assumption. The challenges are rooted in privacy and vary from the privacy concerns in testing to the concerns related to vaccination.”
Also speaking during the webinar, Kathryn Meehan, a partner at Hicks Morley, said employers have faced numerous workplace issues from accommodation to discipline for employees who fail to comply with safety protocols. In regards to employees who refuse to wear masks, she said while employers shouldn’t ask for medical information, they have reason to ask on grounds of accommodation, which could lead to the use of alternative equipment such as hybrid masks/visors or extending the remote work period.
However, when employees refuse to comply and it’s not related to a human-rights issue like disability, she said employers have the right to impose discipline. “Some [employers] have disciplined employees for coming in while waiting for test results or for working without medical clearance when they have symptoms. In those cases, the employees put their own interests ahead of the risks they were posing to the company and their coworkers. Those discharges have been upheld.”
Human rights issues also come into play regarding mandatory vaccinations, she said, adding that employee health concerns — such as pre-existing conditions and impact to mental health — or claims of religious discrimination can trigger a human-rights defense under case law.
“The employer would have to demonstrate vaccination is a bona-fide employment requirement and consider its ability to accommodate up to the point of undue hardship. They could have these employees work from home, away from people or to wear more [personal protective equipment] to reduce transmission risk.”
And with remote work making it potentially easier for employees to work beyond their daily shift, she said employers need to maintain a robust policy governing hours of work. “Some employers have used blackout periods where employees can’t log in or check email, or they’ve strictly limited overtime [during the pandemic].”