Time to Go Back: An Employment Law Perspective

As incredible as it seems, Ontario is finally emerging from its Covid-19 slumber. Slowly but surely, businesses are coming to terms with the idea that all of that real estate on which they have been paying rent can once again be occupied.

This brings with it questions and concerns for employers:

1. Can I force my employees to return to the office? 2. What are my obligations to my employees? 3. What if some refused to be vaccinated?

Herewith, some practical advice:

Return to the Office:

Employers are quite right to want a workplace that not only utilizes the company’s real estate capital but more importantly, does not waste the inherent human capital that can accrue from day-to-day attendance at the office. It is difficult to understate the value of employees interacting - angels and ministers of grace defend us! – in person. The sense of shared value and vision, the collegial atmosphere, and idle “water cooler” talk all help to bind employees together in a common purpose and community.

As comfortable as employees may have been working from home, there is no inherent right to do so. The employer writes the paycheques, and so it gets to set the rules. Whether a full return to the workplace is in the cards; a rotating schedule; or even a hybrid home/work model, the employer is well within its rights to reinstate or impose what works best. For purposes of employee harmony, it would be wise for the employer to keep open lines of communication and give notice to the impending “return to normal” to allow employees to sort out their affairs.

Safety in the Workplace:

The Occupational Health and Safety Act imposes certain obligations upon employers to take all steps reasonable in the circumstances to reduce the risk of Covid-19 transmission in the workplace. This includes vaccination policies (and exemptions) as well as Covid-19 Safety Plans (including social distancing, PPE, signage, and enhanced cleaning protocols). The Region of Waterloo Health and Wellness website provides clear and user-friendly advice at https:// www.regionofwaterloo.ca/en/health-and-wellness/coronavirusresources-for-workplaces.aspx and should be referred to on a regular basis to ensure workplace compliance. If an employee does test positive for Covid-19, the employer must notify the authorities and be alive to the leave entitlements of the employee under the Infectious Diseases Emergency Leave provisions. Currently, the provisions are due to end on December 31, 2021, but, as with all things Covid, this can change very quickly.

Human rights considerations should be considered if an employee is absent from work because of a Covid-19 infection. Any adverse action taken against the employee during their convalescence could trigger an application with the Human Rights Tribunal, so proceed with caution.

Vaccine Hesitancy:

Certain employees, claiming to have done “their own research”, are refusing to comply with company vaccine policies. So, how do you solve a problem like Maria (or Mark)? The solution is not much easier than catching clouds.

Remember: An employer can terminate an employee for any reason, subject to certain legislative exceptions, by giving notice, or money in lieu of notice. Before doing so, here are some questions the employer should ask itself:

1. Do we wish to assert “just cause” and pay the employee nothing or offer a severance? 2. Do we wish to retain the employee and instead, subject them to weekly testing and safety precautions while in the workplace? 3. How important is this employee to the workplace and would the business suffer losses by their departure?

The answers vary by the employer, but the upshot is this: there are extremely limited exceptions under the Human Rights Code to claim accommodation for not getting vaccinated, so termination of employment is an option. On the other hand, there may be an employee with institutional knowledge who is otherwise an asset to the company so the loss could be great. A business evaluation should be undertaken and, of course, legal advice sought.

ABOUT THE AUTHOR Matthew Dewar

Matthew Dewar is a founding partner of Duntrune LLP and has been practicing employment law exclusively for 17 years. He can be reached at mdewar@duntrune. law or 519-772-7533.