LEGAL ISSUES In the Eventual Return to the Workplace

By Melissa Nowak

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  1. INTRODUCTION & LENS OF EXAMINING EMPLOYEE ISSUES

As public agencies release best practice guidelines for an anticipated return to the workplace, employers must consider how these policies affect their employees and the legal ramifications that may arise in following recommended practices.

The Toronto Financial District Business Improvement Area (BIA) which represents Toronto’s premier business centre, including Union Station, PATH underground walkway and Canada’s five major banks published “Best Practices for Return to Work in the Financial District: Version 2” on May 1, 2020. 

This publication summarizes a list of best practices for return to work for the Financial District based upon consultation with several landlords in the Financial District, including Bentall GreenOak, Brookfield Properties, Cadillac Fairview, Oxford Properties and QuadReal Property Group,  and also upon research of best practices implemented in countries further along with their return to work operations.  

While this publication focuses upon the Toronto Financial District, its principals are widely applicable to commercial buildings with many occupants and help frame the legal issues that many employers may anticipate as these practices are implemented.

Although practices across buildings may vary, the underlying goal of social distancing and controlling occupant traffic flow from a building operation perspective will be seen, and these measures will undoubtedly have an impact on company policies and the expectations of employee amid this new environment. 

  1. OVERVIEW OF IMPLICATIONS OF NEW OFFICE BUILDING SOCIAL DISTANCING PRACTICES

To facilitate a return to the office in compliance with government-mandated requirements to observe physical distancing, wear personal protective equipment when physical distancing is not possible, and promote safe hygienic practices amongst building occupants, commercial landlords are implementing “Return to Work” policies.

These policies ask individual employers to consider adopting some of the following practices to ensure the safety of building occupants:

  • Stagger employee start times to reduce traffic flow through the building;
  • Reinforce hygiene recommendations for handwashing, avoiding face contact and safe sneezing/coughing;
  • Supply masks, gloves and hand sanitizers to employees
  • Encourage employees to wear masks in common areas of the building and wherever physical distancing cannot be maintained;
  • Implement a stay home when sick policy, possibly requiring employees to take their temperatures before leaving home;
  • Implement a desk cleaning policy and sanitization of surfaces within the workplace;
  • Reduce office density by reconfiguring workstations to achieve safe physical distancing and installing signage and floor decals to promote physical distancing;
  • Install barriers at reception desks or where visitors and deliveries are frequent. 

While these practices promote the larger goal of stabilizing the rate of COVID-19 cases, their underlying requirements may have legal implications.  

  1. LEGAL QUESTIONS THAT ARISE

Are Employers permitted by law to perform temperature screening on employees before admitting them to the workplace?

The short answer is yes.  In Ontario, there is no private sector privacy legislation applicable to private sector organizations. To avoid any potential privacy violations at common law, information obtained from temperature screening should not be collected, recorded, stored, used or disclosed for any purpose other than determining whether the employee should be permitted to enter the workplace. 

Is there an Ontario Human Rights Code concern with temperature screening employees? 

Information obtained by an employer in medical tests that could have an adverse impact on employees with other disabilities could violate the Ontario Human Rights Code.  As such, employers should obtain solely information from temperature screening that is reasonably necessary to the assess employee’s fitness to attend the workplace and exclude any information that may identify a disability.  

Can Employers discipline employees who are late arriving to work due to traffic controls and elevator occupancy restriction?

The short answer is yes, an employer could discipline, however, this could not likely be a cause for termination.  Ontario courts uphold the doctrine of “progressive discipline” which is a gradual escalation of disciplinary action by an employer for an employee workplace violation.   The measure is designed, however, to be corrective so as not to result in termination.

Under this doctrine, if an employee’s conduct is at issue, in this case, late arrival to work, the employer should provide the employee with (i) a clear explanation of the problem, in this case, failure to appropriately factor in the congestion delays amid social distancing; (ii) a list of steps that should be taken by the employee to address and correct the problem, in this case, an earlier departure to the office to accommodate such potential delays; (iii) assistance to the employee to help him address and correct the problem; and (iv) a reasonable timeframe in which the problem is expected to be corrected.

Again, the goal is to be corrective rather than disciplinary.  Progressive discipline facilitates early detection by employers of problems involving their employees and the opportunity to address them before they escalate and permits the employee a chance to take the steps required to remedy the situation.

We strongly recommend that employers update their employee policy to spell out the expectations for employees upon their return to a changed workplace.  An updated policy will clearly communicate the employer’s expectations amid the changing environment and help employees anticipate the logistical challenges they may face upon their return.

What policies and procedures should an employer have to address COVID-19 and to comply with obligations to provide a safe work environment under the Occupational Health and Safety Act (the “OHSA”)

The OHSA requires an employer to provide a safe work environment for its employees. Usually, this means providing appropriate safety gear, maintaining equipment and ensuring the workplace is free of harassment. However, this also applies more broadly to all aspects of safety, including an expectation that the employer will take steps to protect workers from a known virus while on the job.

COVID-19 should spur employers to review and to adapt their procedures and policies to ensure that they continue to comply with their obligations under the OHSA.

Does an employer have an obligation to report its employees’ illnesses?

Employers are required to report all occupational illnesses, including COVID-19, to the Ministry of Labour, Training and Skills Development in writing within four days. Employers are also required to notify their joint health and safety committee or a health and safety representative and a trade union, if they exist. [i]

An employer is also required to notify the Workplace Safety and Insurance Board within 3 days after learning of an accident that occurs while on the job to one of its workers if the accident necessitates health care or results in the worker not being able to earn full wages. 

Employers may have difficulty in determining whether an employee who makes a claim for coverage due to COVID-19 under the WSIA was injured while on the job.

In the current environment, the WSIB will have a hard time investigating workplace injury claims so employers should implement safety precautions now as a defence to any claims that employees may have been injured or contracted COVID-19 while at work.

An otherwise healthy employee is refusing to come into work and is unable to work from home. Does the employer have an obligation to pay this employee?

Subject to exceptions for certain industries, an employee may refuse to work when he or she has reason to believe that the physical condition of the workplace is likely to endanger himself or herself.

For an employee to refuse work, he or she must first make a claim that he or she has reasonable grounds to believe the workplace is unfit or reasonably dangerous place to work. Workers are entitled to be paid regular wages for at least the initial investigative process.

An employer is then obliged to investigate the complaint and potentially resolve the issue. During this initial investigation, the employee is entitled to continue to be paid. The full scope of this process is beyond this article, but we want to highlight that a refusal to work should be documented, investigated and resolved as quickly as possible.

Importance of Updating Employee Policies prior to Return

As businesses return to the office and commercial landlords impose measures to create a safe environment for building occupants, employers are well advised to consider the new measures imposed by their building staff and update their employee policies to reflect the employer’s expectations amid these changes.  These updated policies should be reviewed, updated and distributed to all employees.

Houser Henry & Syron LLP is a business law firm experienced in employment issues. This update is designed to provide details of recent best practices relating to Covid-19 and the return to the workplace, and other developments of interest. We encourage you to speak with one of our lawyers for advice about your current policies and practices.

For more information regarding any return to work questions or other business matters, please contact:

Michael Henry, Managing Partner; 416.860.8021 or MHenry@houserhenry.com

Melissa Nowak, Senior Associate; 416.860.8028 or mnowak@houserhenry.com

Alexander Levy, Senior Associate; 416.860.8016 or alevy@houserhenry.com

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About HHS

Since 1934, Houser Henry & Syron LLP has provided legal services to Canadian and foreign private businesses, helping them deal with complex legal challenges to grow and to manage risk successfully. We help our clients with mergers and acquisitions, commercial real estate, reorganizations, shareholders disputes and agreements, commercial agreements, employment issues and financing. We also pride ourselves in practicing in Plain English.

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[i] Government of Ontario, Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, Office of the Premier – https://news.ontario.ca/opo/en/2020/03/employment-standards-amendment-act-infectious-disease-emergencies-2020