Canadian HR Reporter

2 www.hrreporter.com N E W S obligations put on employers to follow the recommendations of public health to prevent the spread of the virus, says Fisher. "It's clear, these are extraordi- nary circumstances when it comes to addressing health and safety." Over 18 months of crisis, employers have had to step up quickly to address the situation. And despite the chaos of the early days and the subsequent waves of rising COVID cases and regional lock- downs, a look at recent decisions suggests employers' efforts are backed by a legal system focused on safety in the midst of much uncertainty. Bracing for legal challenges For the most part, employers have looked to public health directives for an objective standard against which to compare their policies, such as the impor tance of wearing a mask, says Jennings. "Ultimately, when adjudicators are looking at whether or not to enforce a policy, the employer has to demon- strate to the adjudicator that they have an objective reason for constructing the policy that they did. And those public health guidelines are in many ways the most objective sort of resource that most employers are going to ultimately have access to." Most protocols that are being imple- mented right now are what's being recommended by public health or is required by the legislation, says Fisher, so employers are "in a very strong posi- tion to defend those policies, even as we've seen different requirements being implemented with little to no notice." Obviously, legal decision-makers are going to be closely guided by what the current science winds up saying. And, sometimes, the science is inconclusive, Mask requirements One of the areas generating pushback from employees has been around face masks in the workplace, reminiscent of previous legal challenges in the health- care sector, says Jennings. Hospitals have instituted policies that basically say that an employee has the choice of either getting a flu vaccination or wearing a mask throughout the dura- tion of the flu season. "A number of arbitrators essentially found that those vaccination or mask policies were not reasonable for an employer to enforce, in part because the science in terms of just how efficacious the flu vaccine is or requiring employees to wear a mask in terms of minimizing the hazards posed by flu in the workplace to other people who are patients of the hospital wasn't necessarily clear," he says. With COVID, the science has reached the point where it's clear that mandatory masking requirements are helpful for cutting down on the spread of the virus. "Arbitrators have essentially found that's why it is reasonable to enforce it, because there is that uncertainty in the face of a global pandemic, when lives are on the line… even if the science isn't there truly proving the efficacy, because of the unknown in the situation," says Jennings. Employees who have exercised their right to refuse work when it comes to mask requirements have not necessarily been successful. For example, one worker in the food industry did not want to wear an N95 mask because he felt other safety measures were sufficient and the mask limited his oxygen so it was a danger to his health, says Patrick Essiminy, head of the employment group for Montreal at Stikeman Elliott. "His argument was categorically rejected by the court." In another case, employees did not says Michael Lynk, associate professor in the faculty of law at Western University in London, Ont. "What you will find is that many arbi- trators would be guided by two princi- ples: One is insisting upon a high justi- fication for an intrusion on somebody's body either through COVID-19 testing or through a mandatory vaccination; [and two is] being aware that some workplaces are a high risk with respect to COVID-19 infection, and in a high- er-risk workplace, an employer would probably have to prove less in order to be able to establish the justification for their COVID-19 policy via testing, the mandatory vaccination or whatever else there is." want to work without an N95 mask because they were concerned about their safety, but, ultimately, "the court refused the order, saying that the scientific liter- ature did not show that N95s were required... because it was determined that the surgical masks were sufficient," he says. Employee privacy concerns Another challenging area for employers? Employee privacy, when it comes to issues such as taking people's tempera- ture in screening for COVID or rapid antigen testing. But, at the end of the day, employers have to protect their workforce from any harm. And during the pandemic, the harm could have terrible consequences, says Essiminy. "It always becomes a balancing act between potential measures that could invade someone's privacy by what is being basically sought out by these measures. And, in this case, the balancing act is yes, if you will take someone's temperature or if you will ask someone to declare symp- toms, it is because you also have an obli- gation to protect the health and safety of the workplace generally." Two recent cases demonstrate the challenges around employee privacy and workplace safety. In the December 2020 decision Caressant Care Nursing & Retirement Homes v Christian Labour Association of Canada in Ontario, the union had challenged the policy for employees to be tested for COVID every 14 days. They considered it an "unrea- sonable exercise of management rights" and an "intrusion on the privacy of employees, as well as a breach of digni- ties," says Fisher. WORKERS UNEASY ABOUT SAFETY PROTOCOLS Source: Stericycle, U.S. "Arbitrators have found it is reasonable to enforce [COVID safety measures] because there is that uncertainty in the face of a global pandemic, when lives are on the line." James Jennings, Filion Wakely 79% Percentage of workers who would leave their jobs if their employer did not offer COVID-related safety training 23% Percentage of workers who say their employers does not offer COVID-related safety training 54% Percentage of workers (and 62% of leaders) who think used PPE could pose an infection risk 80% Percentage of employees who dispose of PPE at work Focus on safety> pg. 1

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