“Workplace health and safety” was traditionally viewed by many employers as a concern primarily for construction sites, manufacturing facilities and other physically demanding workplaces.
But as employers look ahead to reopening their offices while COVID-19 remains present in parts of our community, several Ottawa employment lawyers say businesses and organizations are obligated to take “reasonable precautions” to maintain a safe and healthy work environment for staff.
Here are some of the issues that businesses and organizations will have to navigate in the weeks ahead:
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Masks and temperature checks
Air Canada made headlines this week when it announced plans to start checking the temperatures of all passengers to “provide greater peace of mind.” Many airlines – as well as some grocery stores – already require customers to wear face masks.
As these measures become the norm in certain parts of daily life, can employers ask the same of employees as they enter the office to prevent co-workers from spreading the coronavirus?
Nigel McKechnie, an employment lawyer with Mann Lawyers, says businesses and organizations should tread carefully.
“(Employers) should have a written policy; it shouldn’t be targeted at any single group, and it should be done in the least invasive manner possible,” McKechnie says, adding that all results should be kept confidential unless “necessary for health and safety reasons.”
Jill Lewis, an employment lawyer with Nelligan Law, says temperature screening would make sense for workplaces dealing with vulnerable populations, such as nursing homes or childcare centers. She says an office setting, however, might be a grey area.
“It always comes down to what is reasonable in the situation,” Lewis says. “Once we all start going back to work, employers need to follow public health recommendations.”
Protecting vulnerable employees (and their families)
From the onset of the pandemic, there have been signs that COVID-19 affects certain demographic groups, such as older individuals or those with compromised immune systems, more severely than others.
But it’s not just these individuals who may be reluctant to return to the office. Many individuals live with elderly parents or relatives with health issues and are concerned about the possibility of bringing the coronavirus home from the office.
If an employee feels unsafe going into work because they live with a family member who is particularly vulnerable to the risks posed by COVID-19, Lewis says they have several options to explore.
They could request accommodation based on family status, she says, and continue to work from home. But Lewis cautions that this is not a blanket or absolute measure as employers are not required to make accommodations that impose undue hardship. If the worker is unable to perform the core duties of their job from home, the employer has no obligation to continue employing them.
Another option is for employees to take family caregiver leave – an unpaid absence of up to eight weeks per year per family member. Lewis notes that this means the employer has to hold the employee’s job open but does not need to pay them.
Some employers may be contemplating measures to protect vulnerable workers, such as those above a certain age, by asking them to stay home.
But David Spears, a partner with Brazeau Seller Law, says this could potentially be seen as age discrimination, which is prohibited under the Ontario Human Rights Code.
However, that doesn’t mean employers shouldn’t maintain open lines of communication with at-risk employees and explore options to accommodate workers.
“It wouldn’t be offensive to ask if they are comfortable continuing to work,” Spears says. “But you’re playing a risky game if you impose restrictions on them unilaterally.”
The evolving workplace
The COVID-19 pandemic has normalized remote work for many employees. This opens up new considerations for HR professionals, such as ergonomic workstations in employees’ homes, McKechnie says.
This could mean sending out memos to employees to ensure they are “comfortable and not straining themselves when they sit at their desks.”
Employers should also consider the impact of the COVID-19 pandemic on employees’ mental wellness.
Spears says he expects a spike in mental health issues in the workplace. If an employee is unable to continue working due to their mental health, Spears says the employer needs to accommodate them. This could mean allowing the worker to take a leave of absence or assisting them in applying for disability benefits.
“There has to be flexibility from employers and employees to work out a sensible solution to this unique and unprecedented situation,” he says.
