Considerations for the Return to Work amid COVID-19

Over the past 6 months, businesses have had to adapt to many challenges presented by the COVID-19 pandemic. The return to work environment presents some new challenges and will undoubtedly require adjustment and flexibility by employers and their employees.

Many businesses are considering how and when to safely return employees to the office after a period of layoffs or remote work. Under the Occupational Health and Safety Act, an employer has an obligation to take all reasonable precautions to ensure the health and safety of its workers. Accordingly, an employer should consider what controls may be put in place to reduce the risk of transmission of COVID-19 or other such infectious disease within the workplace. The employer should also be prepared for what actions it will take if an employee is diagnosed with COVID-19 and may have exposed others. If the employee contracted the disease at work, or other workers may have been exposed to the disease at the workplace, the employer has various reporting obligations, including to public health authorities, the Ministry of Labour, WSIB, Joint Health and Safety Committee (if there is one), and to those employees who may have been exposed to the disease while at work.

There will also be situations where employees are unable, or reluctant, to return to work. Employers will need to carefully assess the employee’s reasons for refusing to return to work to determine whether they have a duty to accommodate the employee pursuant to a protected ground under the Human Rights Code, or pursuant to Ontario’s Infectious Disease Emergency Leave regulation. On September 3, 2020, the government extended these emergency leave provisions to January 2, 2021. Under these regulations, an employee may take an unpaid leave of absence for COVID related reasons, which include but are not limited to the need to self-isolate, to care for a family member, or because they cannot return due to travel restrictions. Employers should be mindful that a leave of absence may persist beyond January 2, 2021 (or such later date if the regulation is extended), if the employee continues to require accommodation for his/her disability and/or family status, which grounds are protected under the Human Rights Code, assuming that such can be accommodated by the employer without undue hardship.

However, a general fear of contracting the virus, without more, is unlikely to be sufficient to trigger an entitlement to emergency leave or other protected leave. If an employee refuses work for health and safety reasons, an employer may contact the Ministry of Labour who will assess whether the work refusal is justified or not.

Finally, many businesses may be struggling with the economic consequences presented by this unprecedented pandemic and may seek to reduce the hours, pay, or other benefits normally provided to their employees. The Infectious Disease Emergency Leave regulation permits employers to implement temporary layoffs and temporarily reduce an employee’s hours or pay and provides that such will not be considered a constructive dismissal.

It remains unsettled as to whether a court may still find a layoff or significant reduction in pay to constitute constructive dismissal at common law. However, and in any event, one might argue that during these exceptional times an employee has a duty to accept a temporary layoff or reduction in pay in mitigation of their losses, at least while they search for alternate employment.

The above is intended to provide an overview of some of the legal and practical challenges you may encounter during these unprecedented times and is not intended as legal advice. Please contact a lawyer if you wish to obtain legal advice specific to your needs.