Fifteen Ways To Leave A Pandemic
“The problem is all inside your head she said to me,
the answer is easy if you take it logically.
I’d like to help you in your struggle to be free,
there must be 50 ways to leave your lover.”
As we all get jabbed with needles and begin putting various unpleasantness (COVID-19, Donald Trump, the Maple Leafs’ annual playoff swoon, etc.) behind us, employers are asking questions. Lots of questions. And, almost regardless of industry, the questions are similar.
So, I thought I would package up 15 (not 50…) of my most-commonly-issued bits of wisdom from the last few weeks and pass them along. This shouldn’t be taken as me saying that I don’t want to hear from you all… nothing could be further from the truth!
In no particular order, here are tips which I hope will make employers’ lives a little bit easier as the light at the end of the tunnel edges tantalizingly closer.
- Except in certain highly safety-sensitive workplaces (such as, possibly, residential long-term care homes), employers cannot (legally) enforce a requirement that employees must become vaccinated as a condition of ongoing employment.
- Other than in those exceptionally safety-sensitive settings, terminating an employee or refusing to allow him/her to return to work due to his/her refusal to receive the COVID vaccination would undoubtedly form the basis for a claim for damages for wrongful/constructive dismissal (in court) or for discrimination (in the human rights context).
- Employers may, however, actively encourage employees to receive the vaccination (while urging them to gather their own information about the associated risks, and to make their own decision on whether to receive the shots). There are many ways in which this encouragement could manifest itself. It could, for instance, simply be an information campaign. It could also involve the offering of incentives to employees who demonstrate having obtained the vaccine (but, before offering incentives, do talk to me about what you’re planning to offer and what the eligibility conditions will be). For instance, it could involve a company-wide “Vaccination Drive” with prizes once the desired threshold is met, etc.
- Employers must also – for the moment, at least – continue to observe the various public health orders and impose workplace health and safety precautions aimed at protecting their staff and customers from contracting the COVID virus. (In most workplaces, this includes continuing with mask-wearing mandates, imposing social distancing requirements, asking staff and customers to answer specific questions about their physical condition and recent whereabouts, etc.).
- Employees who refuse to follow reasonable guidelines - such as wearing a mask - on unreasonable grounds (ie. that they feel they are being “discriminated against”, etc.) can be subject to measures such as placing them on an unpaid leave of absence. Employers are not obligated to allow employees to dictate the terms of their return to work. In this situation, do consult with me before taking the step of forcing the employee out of the workplace.
- It is critical to note that BC’s public health orders have not been relaxed, yet, and likely will not for some time, so – despite ½ of eligible BC residents now having been vaccinated – you can/should keep doing the things you’ve been doing for the last 12 months. As mentioned above, this includes mask-wearing, social distancing, etc. Although we are hearing, for instance, that mask-wearing mandates have been dropped and mass gatherings are happening in various U.S. jurisdictions, that is still not the case here in BC. Continue to take your guidance from Dr. Bonnie Henry and the B.C. government.
- If an employee wants to come to work but the employer considers him/her to be a substantial risk for having been exposed to COVID (because, for instance, he/she has traveled out of the jurisdiction, attended some mass public event, etc.), the employer may reasonably refuse to allow the employee to return until a period of isolation has occurred. Remember, your company’s health and safety obligations are owed to all of your staff and customers.
- Employers may also ask staff whether they have been vaccinated (and, if so, whether they have received both recommended shots). This could be done, for instance, in order to facilitate the employer’s ongoing COVID-related health and safety measures. There is (almost) never any harm in asking. I consider this information gathering to be a constituent element of the employer fulfilling its WorkSafeBC obligations towards staff (and customers).
- If the employee resists answering the question (whether he/she has been vaccinated), the employer likely cannot (legally) enforce a requirement that the employee must disclose that information, except in the extremely safety-sensitive settings mentioned above. An individual’s medical history is considered highly personal information and so, except in rare settings, I cannot see B.C.’s privacy commissioner upholding a requirement for disclosure of these details.
- Employers should, of course, comply with the new Employment Standards Act requirement that (if requested) they provide staff with 3 paid hours off work in order to obtain the vaccination. From the Employment Standards Branch website…
You can take up to 3 hours paid leave to be vaccinated against COVID-19. If necessary, you can take additional paid leave for a second dose.
Employees are entitled to this leave no matter how long they have been employed.
Paid leave is retroactive to April 19, 2021.
- For the purposes of the 3 paid hours of leave, it should be totally acceptable for the employer to require the employee to confirm that his/her reason for wanting the (up to) 3 hours off is to attend at an official site to obtain the vaccination. However, do note this guidance from the Employment Standards Branch website…
An employee who requests leave can take up to 3 hours paid leave to be vaccinated against COVID-19. There is no requirement for a request to be in writing, or for the employee to give the employer advance notice.
If necessary, the employee can take an additional paid leave of up to 3 hours for a second dose.
Paid leave is retroactive to April 19, 2021.
If the employer asks, the employee must provide enough of an explanation to reasonably show that the leave was to receive the COVID-19 vaccination.
An employer can ask for proof that an employee is entitled to take this leave, for example, confirmation of a vaccine appointment. An employer cannot require a doctor’s note or proof of vaccination.
- Employers should also be prepared for the likelihood that B.C.’s government will soon be enacting legislation to provide employees with up to three days of paid sick leave related to COVID-19 (through December 31, 2021). This is just the “thin end of the wedge”, as the legislation will likely also establish a permanent, paid sick leave program that would take effect on January 1, 2022. The days of the B.C. Employment Standards Act not imposing any requirement on employers to provide paid sick leave appear to be ending.
- Employers can require employees who have been working remotely to return to the workplace at some point. This may take some effort because some people are going to be reluctant to return. However, although each instance will have to be addressed based on the circumstances, employers are not required to allow their employees to work from home, indefinitely.
- If the long-term plan is to have employees back at the office again at some point, the sooner that occurs the better. The longer they are allowed to work from home, the stronger their claim of “constructive dismissal” becomes when they are finally told to return to the office.
- Employees who claim to have some medical basis for not returning to in-person duties may be required to provide actual medical evidence of that basis in some form (ie. a descriptive note from a physician). Each case should be addressed on its own merits. Employers should not be shy to insist on receiving satisfactory medical justification; personally, I would be skeptical of a doctor’s scribbled note saying something like, “Should work remotely for 6 months” or something similar. Again, in this situation you might want to contact me to discuss just how hard to push.
So, there you have it. If all of this is just too much to manage, then hop on the bus, Gus, you don’t need to discuss much. Just drop off the key, Lee… and get yourself free.
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.