Canadian Employment Law Today

April 7, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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Answer: As businesses begin to open up, em- ployers are faced with the task of ensuring that their employees are safe and their COVID-19 protection policies are in compliance with provincial health guidelines and occupa - tional health and safety legislation. However, policies that are not followed are as valuable as the paper on which they are written. As such, employers must be diligent in ensuring that COVID-19 protection policies are strictly followed. Employers have an obligation to provide their employees with a safe work environ - ment. Allowing employees to blatantly disre- gard pandemic-related health guidelines not only results in the creation of a potentially unsafe work environment, it also exposes the employer to liability for failing to provide a safe workplace. Therefore, when an employee is refusing to comply with pandemic-related health guidelines, discipline is likely warranted. An important first step to addressing this type of potential misconduct is to understand why the employee is ignoring or failing to com - ply with these health guidelines. The reason for this initial inquiry is to understand if the employee is simply refusing to comply or if they are unable to comply with public health guidelines. For example, if an employee is not able to wear a mask because of a health condition, the employer may be required to accommodate this employee with an alter - native work arrangement or modifying their work conditions to accommodate this indi- vidual's illness. Failing to do so may result in the employee filing a human rights complaint against the employer for discrimination on the basis of a protected ground. Accordingly, understanding the reason for the breach is important before imposing any form of dis - cipline. If you are dealing with an employee who is blatantly refusing to but is able to comply, discipline is likely warranted and should be carried out to maintain the safety of your workplace. Depending on the gravity of the offence, a reasonable starting point would likely be addressing the misconduct with the employee and advising them that it is a viola - tion of public health guidelines and any rel- evant employer policies and that their behav- iour must change immediately. For minor infractions of public health guide- lines, it is reasonable to adopt a progressive discipline approach and provide a few docu- mented warnings to allow the employee the opportunity to change their behaviour. How- ever, there may be circumstances where the conduct of the employee is so egregious — an example would be coughing on fellow em- ployees or attending work while knowing they are infected with COVID-19 — that an imme- diate suspension or termination may be war- ranted, depending on the workplace. As evidenced by the foregoing, each situ- ation is context-specific and will require an individual assessment. Ultimately, if an em- ployee is refusing to comply with public health guidelines, despite being able to com- ply, employer discipline is certainly warrant- ed and, in some circumstances, removal from duty may be required. Answer: COVID-19 is requiring employers to get creative with ensuring the health and safety of their employees, especially those with pre-existing conditions that require ad- ditional accommodation in light of this dan- gerous virus. Employers are required to ensure the health and safety of their employees, while balanc- ing their obligations to accommodate those employees with conditions protected under human rights legislation. When it comes to the requirement of em- ployees wearing a mask, the employer must ensure this condition is indeed a bona fide oc- cupational requirement (BFOR), meaning it is necessary to accomplish a legitimate work- related purpose or goal. In circumstances where physical distancing is not possible, such as in a factory, the requirement to wear a mask likely amounts to a BFOR. However, when a workplace requirement amounts to a BFOR, it does not dissolve an employer's obligation to accommodate em - ployees to the point of undue hardship. If an employee has provided medical documenta- tion indicating that they are unable to wear a mask, then the employer is obligated to work with the employee to develop reasonable ac- commodation — examples of which may in- clude wearing a face shield instead of a mask, decreasing length of shifts and/or allowing for more breaks, allowing the employee to work remotely or placing the employee in an alternate position where they are isolated from other employees. If the workplace does not allow for the em - ployee to be accommodated without the em- ployer suffering undue hardship, then the em- ployer is required to consent to the employee taking an unpaid medical leave of absence. It is important when faced with these ac- commodation issues that the employer un- dertake an assessment of their workplace to determine possible accommodation options. While employers are not required to create new positions, impact other positions or ac- commodate to the point of undue hardship, they are required to take meaningful steps to accommodate their employees. Tim Mitchell practises management-side labour and employment law at McLennan Ross in Cal- gary. He can be reached at (403) 303-1791 or tmitchell@mross.com. Canadian HR Reporter, 2021 2 | | April 7, 2021 April 7, 2021 Ask an Expert Have a question for our experts? Email jeffrey.smith@keymedia.com MCLENNAN ROSS LLP, CALGARY with Tim Mitchell Employee ignoring public health guidelines Question: Can an employer discipline or remove from duty an employee it learned has been ignoring pandemic-related health guidelines if the workplace involves people in close proximity? Accommodating employee who can't wear mask in an open workplace Question: How should an employer approach accommodating an employee who can't wear a mask for medical reasons in a factory-type workplace with many people around? Egregious conduct, such as attending work knowing they are infected, may warrant immediate suspension or termination. A bona fide workplace requirement doesn't dissolve an employer's obligation to accommodate.

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