Canadian Employment Law Today

July 15, 2020

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: Under occupational health and safety legislation, employers have a general duty to maintain a safe workplace. This duty applies to the unique risks and challenges associated with COVID-19. As a result, employers may be required to handle health and safety concerns differently than they did prior to COVID-19. There may be concerns raised by employ- ees regarding personal protective equipment (PPE). Businesses resuming operations may have an obligation to provide PPE as part of their workplace occupational health and safety (OHS) obligations, depending on the nature of the business and the services provided. PPE is more likely to be required in situations where it is not possible to maintain physical distancing. Employers should also implement non-PPE measures to control transmission of COVID-19 wherever possible, such as physical distancing and cleaning and disinfecting. Employers may also need to accommodate employees with underlying health conditions who would not have needed accommodation prior to the risks associated with COVID-19. This may mean increased levels of PPE, work- ing from home if possible or other means to physically distance employees. Due to the risk of an outbreak in the work- place, workers must self-monitor for symp- toms and use the online self-assessment tool if they have any symptoms associated with CO- VID-19. Businesses should have a workplace illness policy and, as part of the policy, sick em- ployees should be required to stay home or be sent home from work. Employers should have plans in place for increased worker absences and may have to tolerate increased absentee- ism. Employees also have the general right to refuse unsafe work. Employers will have to take into account the additional hazards and protections associated with the threat of CO- VID-19 as they move to bring their workforces back to the workplace. Answer: Workplace privacy law in Canada has evolved over the past decade with the ad- vances in technology. Privacy legislation is split between federally legislated workplaces and provincial legislation. For federally leg- islated workplaces, the Personal Information Protection and Electronic Documents Act recognizes the right of privacy of individuals including employees. Provincial privacy leg- islation also recognizes privacy rights within the provinces. When evaluating whether an employer has infringed on the privacy rights of an employee, the courts have focused on what level of moni- toring is reasonably justified. To answer the question of reasonableness, the Federal Court in its 2004 decision Eastmond v. Canadian Pa- cific Railway used the following four-part test: • Is the measure demonstrably necessary to meet a specific need? • Is it likely to be effective in meeting that need? • Is the loss of privacy proportional to the benefit gained? • Is there a less privacy-invasive way of achieving the same end? There is also an obligation to inform the em- ployee that they are being monitored. The test focuses on solving specific prob- lems within the workplace. It must be shown that there is a problem within the workplace, such as theft or harassment, and not the po- tential for a problem for surveillance to be jus- tified. If using computer cameras to monitor employees in their home office, an employer would need to inform the employee of their monitoring as well as have a reasonable pur- pose to monitor them. Courts have found that unwarranted surveillance of a workstation can result in a constructive dismissal from of a "poisoned atmosphere": Colwell v. Cornerstone Properties Inc. A workplace privacy policy is a valuable tool for an employer to have in place and employees should be trained on the pri- vacy policy. Employers that are considering additional monitoring or surveillance of their employees are encouraged to seek advice from legal counsel. For more information, see: • Eastmond v. Canadian Pacific Railway, 2004 FC 852 (F.C.). • Colwell v. Cornerstone Properties Inc., 2008 CanLII 66139 (Ont. S.C.J.). Leah Schatz is a partner with MLT Aikins LLP in Saskatoon. She can be reached at (306) 975- 7144 or 2 | July 15, 2020 Ask an Expert Have a question for our experts? Email MLT AIKINS LLP, SASKATOON with Leah Schatz Employee health and safety concerns after COVID-19 Question: Should employers handle health and safety concerns from employees differently than before as we move toward returning to workplaces after the pandemic? Canadian HR Reporter, 2020 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as temporary layoffs during the pandemic, health and safety for remote workers and employee mental stress during COVID-19. You can view the blog at Employers may need to accommodate employees with underlying health conditions. Monitoring employees through computer cameras Question: Can an employer monitor employees working from home through their computer cameras if it notifies employees of this practice? It must be shown that there is a problem within the workplace.

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