One year ago, hosting a pizza party with co-workers or showing up to work with stomach-bug symptoms were unthinkable in terms of fireable offences.
But legal suits based on such incidents are now before the courts as the coronavirus pandemic upends the way managers enforce health mandates and discipline employees. Like politicians and other high-profile individuals who have recently been caught travelling in defiance of regional health orders, rank-and-file employees are now facing career consequences for risky behaviour that would otherwise go unnoticed.
A recent example is a neonatal intensive care nurse from London, Ont., who was fired on Jan. 19 after speaking at an anti-lockdown rally in Washington, D.C. In a statement, the London Health Sciences Centre said it suspended Kristen Nagle without pay in November for actions “not aligned” with its values and then terminated her after an internal investigation. The case reflects the growing issue amid the pandemic of whether someone’s behaviour is a risk to the employer’s reputation.
“Things travel so fast on social media,” says Danica McLellan, an Alberta-based employment lawyer at Neuman Thompson. “Employers are definitely crafting policies to make sure they’re getting ahead of these sorts of issues.”
She says the starting point for an employer to look at an employee’s off-duty conduct is whether there’s a connection to the workplace. “For example, two employees go to the bar and they get into a fight. Or an employee sexually harasses another colleague. There’s a nexus, a connection to the workplace. Another one is if an incident occurs on the property, but not during working hours. Two people get into a dust-up in a parking lot, or someone smoking weed in a parking lot.”
There are limits to what an employer can fire someone for when it comes to their off-duty behaviour, she says. For example, getting pregnant or attending religious festivals may be protected under human-rights laws. “If someone gets a DUI and the DUI doesn’t have any connection to the employment, it might not be grounds for discipline.”
Some employers have built screening for risky behaviour into their workplace policies with things like coronavirus symptom questionnaires that ask about travel. But whether or not a workplace has a policy that explicitly prohibits international travel or breaking public-health guidelines, an employer can still take action on employees’ risky behaviour under the right circumstances, says Sandra Guarascio, a lawyer at Roper Greyell who practices in British Columbia.
That’s because workplace lawyers can rely on a seminal 1967 legal case, Millhaven Fibres Limited v. O.C.A.W., Local 9-670, which states an employer must prove at least one of five factors before disciplining an employee for off-duty conduct, says Nancy Barteaux, founder of Barteaux Labour and Employment Lawyers in Atlantic Canada.
Those factors include whether the employee’s conduct harms the company’s reputation or product; whether the employee is unable to perform their duties satisfactorily; whether other employees will refuse, be reluctant or be unable to work with them; whether the employee is guilty of a serious breach of the Criminal Code; or whether the employee’s conduct makes it difficult for the workplace to operate effectively.
“What was previously normal behaviour, like travelling during holidays, can now expose a workplace to both significant safety concerns, which would impact operations and other employees and also reputational risks,” says Guarascio.
However, McLellan says an employee’s role at the organization, such as being in a leadership role, or having access to the till or contact with customers, could all be considered in a dismissal. A unionized workplace might need to meet a higher bar of just cause for dismissal, while non-unionized shops could let someone go without cause and add a notice or severance payment. Although an employer does have some legal power without a pandemic workplace policy, she says many provinces require workplaces to have a plan anyway.
Nadia Zaman, a lawyer at Rudner Law who practices in Ontario, says there’s recourse for an employee who feels a colleague is bringing a coronavirus health risk to the physical workplace through dangerous off-duty conduct. “The employee can refuse to work if there are reasonable and legitimate grounds for them to believe that there’s a safety risk in the workplace. Once the employee reports their safety concerns, the employer is then required to investigate the situation and advise them whether the safety risk has been resolved or not. And if the employee continues to believe there’s a safety concern, the Ministry of Labour can be asked to come in to investigate.”