Key Legal Hotspots for Employers in the COVID-19 Second Wave
COVID-19 has had an overwhelming impact on Canadian workplaces. While Canada previously saw a dip in positive cases, since late summer many provinces have experienced a resurgence, which some experts are calling the “second wave” of the pandemic. Many provincial governments have already reacted to the second wave by re-introducing preventative measures in high-risk areas.
From an employer perspective, legal compliance in light of COVID-19 seems like an arduous task: the risks and developments are constantly evolving, and various levels of government are constantly introducing new legislation and regulations to combat the impact of the virus. For some employers, the uncertainty may make it seem as if the goal posts are constantly shifting. However, by focusing on certain key hotspots and potential areas of liability, Canadian employers can greatly increase their chances of successfully navigating the legal landscape in light of the COVID-19 pandemic.
Health and Safety Obligations
In most provinces—though the obligations may be worded slightly differently—employers must take every precaution reasonable in the circumstances to ensure workplace health and safety. Failing to meet those obligations can result in significant fines or penalties under applicable legislation. However, there is no “one-size-fits-all” solution when it comes to health and safety; an employer must take all reasonable precautions to ensure the safety of its own workplace. To demonstrate due diligence in meeting this obligation, employers should conduct a risk assessment that identifies potential health and safety risk areas with respect to COVID-19 that are specific to the employer’s workplace, and develop effective solutions to mitigate those hazards.
As a best practice, employers should implement COVID-specific policies and procedures that not only outline the employer’s preventative measures—such as PPE requirements, cleaning of equipment and workspaces, and strict physical distancing procedures—but also the expectations for employees and supervisors. Supervisors should also be trained to model compliance, identify problem areas, and uphold COVID-19 policies.
Accommodation and Leave Protections
Employers have obligations under applicable human rights legislation to accommodate employees to the point of undue hardship. Employers should ensure they take all accommodation requests in good faith, and keep in mind that accommodation must be reasonable, but does not have to be the perfect accommodation the employee would prefer.
Due to COVID-19, there has been a significant increase in employee requests for accommodation based on family status and disability (including physical and mental health). Accommodation obligations can be triggered in many ways: for example, if an employee is immunocompromised due to a pre-existing medical condition, the employer may be required to alter their job duties to avoid contact with others, work from home (where appropriate), or take a leave of absence. Similarly, an employer may be required to accommodate childcare or eldercare needs that an employee may have because of COVID-19.
In some cases, where an employer has a reasonable basis to know that an employee’s disability has adversely impacted their work performance, the employer may have a duty to inquire whether the employee requires accommodation, even if the employee has not specifically requested accommodation.
Employers may not be able to anticipate every accommodation scenario that may arise, but must be able to identify where an accommodation request or need is tied to a protected ground and triggers the duty to accommodate. Employers who fail to meet their accommodation obligations can face liability such as constructive dismissal claims and human rights damages.
Employers must also be aware of any applicable COVID-related leaves of absence. Many provinces, and the federal government, have created job-protected leaves of absence for employees who cannot work for COVID-related reasons. Generally, the employee cannot be subject to discipline or reprisal because they take the leave, and has the right to be reinstated to their previous position (or a comparable one if their previous position does not exist) when they are ready to return from the leave.
Work from Home Arrangements
In response to the pandemic, many employers quickly pivoted to work from home arrangements. Employers who have continued such arrangements must take active steps to ensure that employees have a safe workspace at home, if they have not done so already. When employees work from home, home becomes the workplace, and health and safety obligations apply. If the employer’s workplace is covered, employees who are injured at home in the course of their work may be entitled to workers’ compensation benefits.
Employees who work from home remain entitled to protections under employment standards legislation. A major hotspot related to working from home is overtime pay. Without an overtime policy and training that provides guidance as to when overtime will be paid, how hours are tracked, and who authorizes overtime, it is very difficult for employers to track overtime worked at home. Employers who fail to adequately monitor overtime risk significant claims for unpaid overtime pay, which can add up to weeks or even months of wages.
Layoffs and Dismissals
Due to the impact of COVID-19, many employers have been forced to implement temporary lay-offs and permanent reductions to their workforce. Before implementing lay-offs or employment terminations in response to COVID-19, there are a number of key considerations to be made.
Many employers are unaware that they must expressly contract for the right to lay employees off work. When an employee is laid off absent the employer’s contractual right to do so, the employee may claim that they have become constructively dismissed. However, with the sudden and unprecedented impact of COVID-19, it remains to be seen whether Canadian courts will enforce this rule for employees laid off because of the pandemic.
Under most provincial employment standards legislation, when an employee is laid off for longer than a specified maximum period, the employee’s employment is considered to be terminated. Many provincial governments have temporarily amended lay-off rules to allow employers to implement longer lay-offs than normally permitted where the lay-off is related to COVID-19. Employers must familiarize themselves with the legal requirements and any applicable COVID-related measures, or they may face unanticipated liability in response to lay-off measures.
Before moving forward with permanent staff reductions, employers should carefully review relevant employment agreements. In recent years, the law around termination clauses has been in a constant state of flux. As a result, many once-enforceable clauses have been rendered unenforceable. Without an enforceable termination clause, the employee is entitled to common law reasonable notice, which in most cases significantly exceeds entitlements under applicable employment standards legislation. Given the recent changes in the law, there is a chance that even recently-drafted employment agreements may contain unenforceable termination clauses. Employers should carefully review and assess whether they can rely on their employment contracts before proceeding with strategies to reduce staff, or risk paying much more than intended.
Going Forward
Given the onset of the second wave of the pandemic, employers must continue to be conscious of these key legal COVID-19 hotspots. Given the current circumstances, and as employer compliance obligations related to COVID-19 continue to evolve, employers should seek advice before proceeding with any significant measures in response to COVID-19 to ensure they are meeting their existing and new obligations.
Laura has over two decades of experience providing advice and representation as an HR Lawyer. As an entrepreneur, Laura has built two highly respected firms which respectively provide proactive HR law and HR consulting advice designed to minimize workplace law challenges, maximize employee engagement and boost bottom line performance. Laura is also a seasoned workplace investigator, routinely engaged to conduct complex workplace investigations, and is recognized for specific expertise in investigations related to equity, diversity and inclusion. As a Certified Speaking Professional, Laura regularly delivers keynote talks on topics relevant to entrepreneurs, business leaders, HR professionals and lawyers. Laura has recently launched a podcast for business leaders and HR Professionals called We Thrive Forward – Conversations with Laura Williams which is available on all major platforms.
