Canadian HR Reporter

June 2021 CAN

Canadian HR Reporter is the national journal of human resource management. It features the latest workplace news, HR best practices, employment law commentary and tools and tips for employers to get the most out of their workforce.

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Page 2 of 31 3 "I think that we'll see some backlash at that point as well." Safety-related payment options Unlike normal safe ty measures, COVID-19 could see employees having to leave the workplace to self-isolate, have a COVID test or get a vaccination. This presents a challenge for employers when it comes to compensating the time off work. For example, one case saw a union for long-term care homes claiming that the collective agreements required the employer to provide sick pay when nurses received a positive COVID-19 diagnoses or were symptomatic or when nurses were required to self-isolate. While the arbitrator ruled that sick pay should be given when the staff were sick or symp- tomatic, they said this was not required when people had to isolate for 14 days if they hadn't tested positive or were asymptomatic. But the arbitrator decided the intru- sion and the policy were reasonable and necessary to protect the safety of workers as well as the residents, she says, and it didn't make sense for the employer to wait until there was an outbreak before taking action. Rising mental health issues Employers don't just have to worry about employees' physical concerns when it comes to COVID-related safety measures — there is, of course, mental health as well. For example, in Review Reference #R0269567, a B.C. food service worker at a correctional institute was denied workers' compensation for stress that she claimed came largely from overwork after an outbreak depleted staff levels. WorksafeBC ultimately disallowed the claim. "There's been a significant spike in mental health claims coming from Canadian workers during the pandemic. I wouldn't be surprised [if ] we see ongoing claims of the workers compen- sation level, and we might see employers who are challenging employees with respect to requests for time off or for particular benefits related to mental health," says Lynk. But because there is a much greater openness in Canadian society toward mental health issues, as well as among arbitrators, "that is something that employers would not be wise to want to come down hard on their employees," he says. Employers should not underestimate the potential for mental health issues that come out as we return to normality, working full time in a normal work envi- ronment, says Essiminy. Generally, if an employee does not meet the criteria of sick leave and does not have a workers compensation case, the other option is applying for the employment insurance benefits that are offered by the federal government for people who cannot go into work because they have to isolate, says Essiminy. "Employers, as far as I know, are not paying the employees to stay home and not work, unless the employees that are unable to come into work can be accom- modated by doing remote work... But if someone's not working, then the options are limited." When it comes to paying employees, there's both a legal and a practical answer, says Jennings. "The employer doesn't really have a freestanding obligation to employ and pay employees for time that they're not performing work, absent the terms and conditions of a sick pay plan or short-term disability plan entitling the employee to that." On the other hand, some employers have decided to sort of offer sick pay to workers awaiting COVID test results or self-quarantining, he says. "Some employers want to roll it out because, frankly, they recognize that if you're required to quarantine for 10 days, it might be financially difficult on their employees and they might be deciding to do right by their employees. But from a practical workplace manage- ment perspective, if an employer wants to try and avoid an outbreak in their workplace and disincentiv- izes employees from coming in when they're experiencing symptoms related to COVID-19, [they might decide to offer pay]." WORKERS LOOKING FOR REASSURANCES "A violation of a public health or employer COVID-19 guideline is likely to be viewed as a very serious offence." Natalie Fisher, Sherrard Kuzz Disciplinary considerations Despite best efforts, employers may face the dilemma of discipline when it comes to employees not following COVID- related safety rules. And while employee termination may seem excessive in the midst of a pandemic, it may be the best course. Early results for employers have been fairly encouraging when it comes to the response of courts and arbitrators around their disciplinary actions, says Jennings. "But by no means do they essentially give an employer carte blanche to termi- nate every employee for cause in relation to every violation of a COVID-related protocol, no matter how small it is." An employer will always need to deter- mine the appropriate response based on the severity of conduct, the employee's individual circumstances and any prior conduct issues — particularly ones that are safety related — as well as whether the worker expresses remorse for their actions, says Fisher. But, generally, an adjudicator will not look kindly on a worker who puts their personal interests above the health and safety of other workers and the general public, she says. 6 in 10 Number of workers who will refuse to go back to their workplace if they feel it's not safe enough 82% Percentage of workers who trust their employer to take the necessary health and safety precautions 72% Percentage of workers who are OK going back to the workplace if the number of COVID-19 cases is low Source: KPMG, Canada

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