Employers are being directly and indirectly affected by the COVID-19 pandemic as it poses a range of challenges such as the employer’s obligation to protect the health of their workers as well as workforce interruptions, either due to employees contracting the virus, or due to supply chain disruption.
This legal update highlights the main legal issues that employers may face in the workplace when dealing with the risks posed by the COVID-19 pandemic.
Health and Safety Considerations
The primary obligation of any employer is to ensure the workplace is a safe and respectful environment for all persons, including employees.
Key legal issues for employers to consider around employee health and safety include:
· How to properly conduct workplace hazard risk assessments for the virus.
· Practices for reducing virus-related risks in the workplace.
· The employer's right to temporarily require a high-risk employee to stay home
and the constructive dismissal risks that arise when the employer does so.
· The employee's right to know about virus-related hazards in the workplace.
· The employee's right to refuse work they reasonably perceive to carry a risk of infection,
and the exceptions to that right.
· Alternatives to employee attendance at the workplace, including telecommuting arrangements.
· Reporting obligations to health and safety authorities and workers' compensation authorities following incidents of workplace infections.
· The employer's obligation to protect employees from violence and harassment connected to the virus (for example, where the employee is targeted for being a member of a group perceived to carry the virus).
Managing Employee Absence
Many employers will undoubtedly be impacted by employee absences during the course of the COVID-19 pandemic. Employees may be absent from work for a number of reasons: they may have contracted a virus, they may be obliged to care for a loved one who is ill or they may be unable to attend work due to travel disruptions.
The key legal issues for an employer to consider relating to such absences includes:
· The statutory leaves available to employees who contract the virus, or who must seek medical treatment, or who must care for sick family members.
· The distinction between culpable and non-culpable absence in assessing the proper employer response to employee absence from work.
· The employer's obligation to accommodate disability arising from the virus.
· The distinction between a brief, temporary illness that does not attract a statutory duty to accommodate
and a more serious illness that requires accommodation.
· Employee rights under workers' compensation legislation where a virus is contracted at work.
· The scope of medical information the employer can reasonably require an employee to provide to address virus-related medical questions and proper procedures for requesting that information.
· Proper privacy practices with respect to employee health information, including obtaining consent where required and handling that information with a level of security that reflects its sensitivity.
· Managing an employee's return to work following recovery from infection.
Planning for Business Disruptions and Continuity
We encourage business owners to continue to keep their businesses operating to the full extent possible while being mindful and implementing the government’s recommendations for preventing and curtailing the spread of COVID-19 and other viruses.
Nonetheless, even with the best of planning, COVID-19 may disrupt the normal course of business through other means such as supply chain interruptions, travel restrictions, drop in customer attendance, and so on.
Below are the main legal considerations for employers dealing with business disruptions and continuity:
· The extent and limits of the employer's right to make changes to working conditions through new workplace policies and procedures.
· Requirements for conducting proper layoffs without triggering constructive dismissals.
· Constructive dismissal risks that accompany changes to an employee's working conditions, including:
· temporarily suspending an employee who presents a risk of infection;
· transferring an employee to an alternate work location;
· changing an employee's hours of work; and
· changing an employee's work duties.
· The employer's obligation to provide additional working notice, termination pay or severance pay where larger numbers of employees are terminated as the result of a business closure.
We hope that by making a balanced assessment of the risks present in your particular business operations you will be able to keep your business operating at its greatest capacity possible during these times of social distancing and self-quarantining. Each employer must objectively assess its own risks and make socially responsible and financially responsible decisions based on the actual risk, and not based on being shamed into a decision due to what is happening on social media.
This legal update merely provides an overview of the key issues that employers will encounter in the coming weeks and months. This overview is intended to highlight the complexity of the potential legal issues that might arise in the workplace.
In the coming weeks we will provide a deeper discussion of some of the more common workplace issues that might arise as a result of the COVID-19 pandemic.
In the meantime, if you require detailed assistance in preparing a workplace response to an infectious disease outbreak or legal advice on assessing your risks when addressing any of the above legal issues, please schedule a consultation by clicking the button below. We can accommodate video consultations and telephone consultations when requested.