Returning to work during COVID-19

Can your Squamish boss force you to wear a mask? Can employees refuse to come back to work? These questions and more answered by an employment lawyer

With talk of things starting to open back up in Squamish and elsewhere, and with COVID-19 still a concern, what can employees and employers expect from the new normal?

The Chief caught up with Andrea Raso, a senior employment and human rights lawyer at Clark Wilson LLP, to talk about the rights of employees and employers as they begin a return to work.

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What follows is an edited version of that conversation.

Q: One situation we have heard of from readers is workers who told their bosses they didn't feel well, and then their bosses pressure them for COVID-19 test results. How much can employers intrude into your private life in this regard?

A: When the provincial government created the COVID-19 leave of absence a few weeks ago, they put in a clause that said an employer cannot require an employee to provide medical justification, at this time.

The reason being is that the government could envision hundreds of thousands of employees all rushing to the doctor in the middle of a pandemic. The legislation gives the employee the benefit of the doubt.

The provincial health officer is saying very clearly if you feel sick or suspect you may have been exposed, you are required to self-isolate. The employer can't require anything else.

Q: Can employers enact mandatory health procedures? So, can they say you have to get a temperature check, for example? Or wear a mask?

A: It really will depend on the nature of the workplace. Starbucks, for example, is saying that they are going to require employees to wear masks. It is really balancing employees' privacy rights with the employers' obligation to create a safe and healthy work environment.

At Starbucks, behind the counter, people are in close quarters, walking back and forth and they are customer-facing. So it probably makes sense for the employer to require employees to wear masks.

In another workplace, where people are just in their own offices, that may not be reasonable.

Temperature taking is a different thing. We are starting to see the science say that some people don't get temperatures with this virus. So really, what value is it to do something as intrusive as a temperature check?

Q: If employees don't want to come back to work because they are just really scared and uncomfortable with ramping back up again at this time, what rights do both sides have?

A: When there is the all-clear from the public health officials to start bringing people back to work, we are hoping that we are going to get some guidance from them.

So they may say, "You must tell your employer that you are experiencing symptoms," so that will give comfort to other employees that co-workers aren't coming in sick.

We are all going to be nervous, it is human nature.

What employers should be doing is finding out why employees don't want to come back. Does the employee have an underlying health condition? Is the employee taking transit and squished in with others? Once the employer understands the basis of the fear, they may be able to make accommodations to make the employee feel safe.

If it is because of something the employer is not doing — so for example, the employer doesn't have handwashing stations available or is making employees work in close quarters without a mask, then the employee can complain to WorkSafeBC, and they will investigate.

If the employee just can't be made to feel safe, regardless, the employer can technically terminate that employee, but I don't expect employers will. They are more likely to say the person is then off on unpaid leave.

Q: What about if a family member gets sick, do we have to tell our employer that?

A: In normal circumstances, that is personal information and not something you would have to disclose. But I think with this we are going to be guided by public health officials. They say if you have somebody who is sick at home, you need to self-isolate.

In the balancing of privacy versus health and safety, all things being equal, the employer can probably ask if the employee has been around anyone with symptoms.

Both privacy legislation and occupational health and safety legislation are both based on what is reasonable in the circumstances. So, is that a significant intrusion into someone's personal life? Probably not to the degree that other things are, such as taking someone's temperature.

Q: Typically, if say, I have a cancer diagnosis and I tell my boss, I expect that she won't tell everyone else in the office. But if I tell my boss that I have tested positive for COVID-19, is that something she can tell everyone I work with?

A: The same is true with COVID. Everyone in the office, if you don't work directly with them, does not need to know. Let's say you work in a building with five floors and you never go up to a different floor, why would they need to know? This is where there is going to have to be some really good judgment on the employers' part. There may be a situation with someone who is in a mailroom, and who has gone office to office, then that is a situation where it may be reasonable to tell. The best way to deal with it is to get the employee's consent to tell.

I suspect most employees won't have a problem with that if it is a situation where they are in close contact with a lot of people.

Q: Are you at all worried — if that is the right word — that because of COVID, things may move permanently to a bit more of an intrusion into employees' privacy?

A: I do not think the potential intrusion into privacy is a long-term concern. Because the test is always reasonableness in those specific circumstances.

What makes it right during a pandemic, is not going to be reasonable in a time when this isn't going on.

I think there are going to be some long-lasting effects of the pandemic, however. For example, when the government put in the COVID-19 leave of absence, they also put in an unpaid leave of three days for employees who are just ill. It is job-protected. That was slipped into the legislation and I think that shows that health and safety in the workplace are becoming the priority.

Q: Maybe there will be a different culture shift then around coming into work sick? My generation often thinks you work no matter what — "suck it up buttercup," kind of idea, where you don't call in sick, even if you are. Perhaps that is going to change as a workplace norm?

A: I think that is actually what is going to change. Some studies have shown, too, that when one employee goes into work sick, thinking they are going to be productive and the employer wants them there, the number of others they are infecting is worse for the workplace. The ideology around working sick is going to change.

Q: Can my employer force me to use vacation days to stay home for any reason? Say, I don't feel great but not thinking it is COVID-19?

A: Employers cannot force employees to use vacation days for anything other than vacation days. That is legislated. The employer has to make sure the employee is only using vacations for that.

I think the first you do is look at any sick leave policy that is in place and that should be the first thing utilized. If there isn't such leave available or the employee has used it up, then the COVID-19 leave of absence is the way to go because then the employee can get the Canada Emergency Response Benefit or eventually Employment Insurance (EI). That is a better way to deal with it.

Q: A final, bigger-picture question is around the courts. Are the courts still closed or what is happening there?

A: There was recently an update from the chief justices from the different courts. The Court of Appeal, they are going to open on Monday, to do things by phone and video.

That is pretty easy because there aren't a lot of witnesses and a lot of it is by paper.

The provincial court, which is small claims and lesser criminal cases and traffic cases, they are trying to do more things online and they have quite a bit of video capability.

The Supreme Court, however, to date, has still only permitted written applications on issues under dispute and that is by phone or video. Urgent matters — some criminal and family — are going ahead, but beyond that, there hasn't been any movement to get things back up and running.

Efforts are being made to allow for video conferencing, but the court is just not there yet.

And for the people who are the clients, you still want to make sure that they have had access to justice and that they have had a fair trial.

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