COVID-19 and the return to work

Karine Dion and Malini Vijaykumar
Karine Dion, left, and Malini Vijaykumar are associate lawyers practising in Nelligan Law's employment and labour law groups.
Editor's Note

This article is sponsored by Nelligan Law.

As the COVID-19 curve starts to flatten and political leaders start discussing the possibility of lifting restrictions, workplaces across the province of Ontario are preparing for the day when they can re-open their doors.

Understandably, however, many employers and employees alike will have questions about how this return to work will take effect, including when and how to return to work and, most importantly, how to do it all safely and legally.

While each workplace will have to consider its own particular circumstances in what will become its “new normal,” below we’ve outlined some of the common questions we have heard to date and expect to hear in the coming days and weeks about returning to work, and weigh in to help individuals navigate a new phase of this unprecedented time. 

Q: How do we make the workplace safe for employees to return? 

Each workplace is different, and a return to work plan for one may not be appropriate for another. Each workplace should conduct its own risk assessment to determine how best to protect its workforce, its clients and customers, and its contractors.  

Employers are encouraged to establish return-to-work policies that aim to reduce the spread of COVID-19 in the workplace, and to make sure these are properly communicated to and understood by employees. These policies can either be posted in the workplace or individual copies can be provided. 

To assist employers in establishing these policies, the government has set out some risk mitigation strategies for workplaces based on different workplace factors. To review this information, please visit the federal government’s website. Some of these factors may include: 

  • Proper communication about risk and mitigating risk to employees and clients;
  • Posting signs encouraging frequent and proper hand hygiene (washing hands for 20 seconds with soap and water, or using alcohol-based hand sanitizer), physical distancing (avoiding greetings like handshakes and maintaining two-metre distances between people wherever possible), avoiding touching one’s face, respiratory etiquette (coughing or sneezing into one’s arm or a tissue);
  • Providing the necessary facilities and cleaning products to maintain a clean and safe workplace and increase the cleaning of high touch areas such as doorknobs and elevator buttons;
  • Posting signs asking ill clients or customers to stay away from the workplace;
  • Cancelling or postponing all non-essential meetings or travel;
  • If physical distancing cannot be consistently maintained, employers should consider having employees wear a non-medical mask or face covering;
  • Avoid sharing communal office equipment/supplies;
  • Reducing the numbers of clients or customers who can enter a store or participate in a certain activity at any given time;
  • Teleworking arrangements, flexible hours (especially for those who must use public transportation), staggered start times for employees, modified service delivery/hours of operation, and use of email and teleconferencing, especially in a high transactional workplace; and
  • Modifying infrastructure at work to enhance physical distancing by two metres.

Employees who could feasibly work from home can ask the employer to permit them to continue doing so in order to limit the number of people physically in the workplace and to adhere to physical distancing guidelines. Employees who cannot feasibly work from home and who have concerns about returning to work should ask the employer about the safety procedures that are going to be in place at the workplace, as well as whether employees will be expected to provide any safety equipment themselves. It would be harder for an employee to take the position that their workplace is not safe without first asking their employer questions about what safety precautions they plan on taking.

If, after raising these questions, the employee reasonably believes that its employer is not taking reasonable safety precautions, then Ontario’s Occupational Health and Safety Act (the“OHSA”) allows employees to refuse unsafe work. In order to do so, the employee would need to promptly report the circumstances of their refusal to work, ideally in writing, to the employer or supervisor who will then investigate. If the employer determines that the work environment is safe, then the employee will need to either return to work or promptly make a complaint to the Ministry of Labour, who will then conduct its own investigation and issue a finding as to whether the refusal was valid.

Employees who follow the proper procedures for refusing unsafe work may still have access to the Canada Emergency Response Benefit (CERB). That said, if an employee voluntarily quits their job, they will not have access to the CERB.

Q: Can I force my employees to get tested for COVID before they return to work? 

Employers should not make getting tested a precondition for their employees to return to work.

Testing for asymptomatic individuals is, as of the date of this article, still not publicly available or accessible, so an employer may run the risk of an employee claiming they have been constructively dismissed if their employer won’t let them return to work without proof of a negative test result.

Q: My workplace has temporarily laid off its employees. When and how should they be brought back? Was my layoff even legal? 

Employers can choose who to recall and in what order they recall them, so long as their decisions are not discriminatory. An employer should advise an employee, in writing, of the exact day they are being recalled to work following a layoff, and the employee should acknowledge that they will indeed be returning to work on that day. Employers will want to consider how long an employee has been laid off in deciding who to bring back and when to avoid them having already been deemed terminated under the Employment Standards Act, 2000 (the “ESA”).

If an employee has been put on a temporary layoff, but their employment contract does not contain any provision expressly permitting the employer to do so, that employee may have an argument that their layoff constitutes a constructive dismissal. In Ontario, if an employee remains on layoff past 13 weeks in a 20-week period (or 35 weeks in a 52-week period in some circumstances, such as when the employer continues to make benefit contributions), the layoff turns into a “deemed termination” under the ESA. That said, given the unprecedented nature of the current situation, and the fact that many employers are stuck having to make the difficult decision of either laying off employees, terminating them, or closing down altogether, the choice to lay off could be seen as the lesser of all evils.

Q: What if some employees don’t want to come back? 

If an employer asks its employees to return to work, then so long as the employer has taken reasonable, necessary precautions to keep the workplace and employees safe, and the employer is permitted to be open, the employees do have to return to work. If an employee still chooses not to return to work even after the employer has taken such precautions, this could be seen as insubordination or even a resignation. This is subject to an employee’s right to a statutorily protected leave and the employer’s duty to accommodate its employees to the point of undue hardship (for example, employees facing childcare responsibilities amidst ongoing school closures).

If an employee believes their employer is offside of a public emergency order, or if the employer is not offering reasonable accommodation, they should speak to an employment lawyer.

Q: What if the employer doesn’t want some employees to come back? 

Employees who remain on layoff may, as discussed above, have certain entitlements under the laws of constructive dismissal and/or the deemed termination provisions of the ESA. If an employer decides on a permanent basis not to recall certain employees, then – like any other without cause termination – those employees will have certain entitlements, whether they be statutory (under the ESA), contractual (pursuant to their employment contract) or at common law.

Employers should be mindful of human rights legislation, as well as the anti-reprisal provisions of the OHSA and ESA. If an employer’s refusal to recall certain employees is based on a prohibited ground of discrimination under the Ontario Human Rights Code, or based on those employees having previously voiced concerns with health and safety compliance or compliance with employment standards, then that employer could be in breach of those statutes and face a complaint and ensuing liability.

Q: Do I have to disclose my COVID-related symptoms to my employer? 

Employees who develop COVID-related symptoms (even mild symptoms) should stay home to avoid spreading illness to others. The employer has an obligation to keep its workplace safe, and as a result can require employees to report COVID-like symptoms and/or positive test results. This will enable the employer to take the necessary precautions, such as advising those in the office who may have had contact with the symptomatic employee to go home and self-isolate, although the employer should generally avoid disclosing a specific employee’s personal information beyond what is necessary in this regard. Employers should only ask employees for information that is reasonable in the circumstances, to avoid being offside of privacy laws.

If an employee, or someone with whom they live, has tested positive for COVID-19, the employee should go home and self-isolate for at least 14 days.

Note that the ESA has recently been amended to include a new emergency leave provision for declared emergencies and infectious disease emergencies. This leave cannot be imposed upon an employee by an employer, but can be utilized by an employee who needs it. It is a leave without pay for reasons including, but not limited to, being under individual medical investigation, supervision or treatment related to COVID, being in quarantine or isolation, the employer having sent the employee home due to fears of virus exposure to others, or for those providing care or support (e.g. to children) given school or daycare closures.

Q: How should companies structure their employment operations moving forward? 

The pandemic has radically changed expectations for employers and employees. Moving forward, employers will want to give serious thought to including language in their employment agreements permitting them to put employees on temporary layoffs, in order to mitigate the risk of constructive dismissal arguments. Workplaces may see physical changes such as the institution of more physically distant office setups and the inclusion of more stringent sanitation guidelines, even for office environments. Policies for telework will undoubtedly become much more common and an employer’s failure to offer teleworking arrangements may be more likely to be considered a failure of accommodation. In these unprecedented times, one thing is certain: all of us will need to adapt.

Everyone, including employers, owners, employees, clients and customers, has an important role to play in taking steps to reduce the spread of COVID-19. Together, we can take these steps and move through this pandemic into the next stage of our new normal.

It is important to note that each workplace is different, and a work plan for one may not be appropriate for another. It is also important to note that this situation is fluid – as we learn more, and the government guidelines evolve, work plans may need to be revisited.  For the most up to date information about the legal implications of the pandemic in the workplace, please visit the Nelligan Law COVID-19 Resource Centre

We are working diligently to stay on top of the situation, and our legal teams are ready to help.  

Please note that the information in this article is meant to address workers who are not unionized and who are not deemed “essential” by statute or emergency order. If you have particular questions about your situation, please contact one of our employment lawyers who would be happy to assist.

Please note that the information provided in this article is Ontario-focused; however, our team has multi-jurisdictional expertise. We would be happy to assist with your employment needs in Ontario, Quebec, or other provinces, as well as the federal jurisdiction. Please contact us for further details.

As the COVID-19 situation is evolving rapidly, please note this information is relevant at the time of publication.