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May 29, 2020

Bringing employees back to the workplace: What employers need to know

It has now been a month since the Manitoba government announced its roadmap for easing pandemic restrictions on businesses and public facilities. The slow but steady return to work and social life in Manitoba poses further novel issues for employers. This article deals with some of the frequent questions we’ve been asked about the return to work.

Q: Can employees refuse to come back to work?

A: Under The Workplace Safety and Health Act, workers have the right to refuse work that they reasonably believe constitutes a danger to their safety or health, or the safety or health of someone else, should they perform the task.

For work to be considered dangerous, the hazard is generally unusual to the normal working conditions or tasks, or the health or physical condition of the worker increases the risk; the hazard is likely to result in serious injury or illness, and reasonable controls have not been put in place to reduce or eliminate the risk.

The reasonableness of work in the context of COVID-19 will depend on whether the workplace is a high-risk environment (healthcare, for example); whether the workplace has had positive cases of COVID-19 associated with it; and what measures the employer has taken to mitigate the risk of contagion and personal contact.

Guidance should be taken from public health authorities on what steps are appropriate mitigation,  and if the common practices in the employer’s industry or market exceed the recommendations of public health authorities, employers should strive to meet that higher standard. Distancing markers on the floor, controlled access to the workplace premises, providing sanitizers and regular cleaning, using masks and personal protective equipment, setting up physical dividers, inquiring as to the health status and travel history of visitors to the office, and minimizing close contact opportunities on the premises are examples of mitigation measures in common use now. Employees exhibiting symptoms of COVID-19 should not be permitted to return to work.

Q: What can an employer do if they do not accept that an employee’s refusal to work is reasonable?

A: Employers have a positive obligation to reasonably ensure the safety and health of its workers at work.

If a worker reports dangerous work to the employer, the employer must work with the worker to assess the risk and resolve the concern. Workers who are concerned about their safety and health at work should bring their concerns to their supervisor or to their Workplace Safety and Health Committee (for workplaces having more than 20 workers).

If the employer and the worker are unable to agree on a resolution, a worker representative from the Safety and Health Committee, or another worker can be brought in to help assess the situation and attempt to resolve the issue. In union workplaces, the local’s representatives should be involved in the resolution process in accordance with the collective agreement.

It is also important to remember that an employer cannot take or threaten discriminatory action against the worker (i.e. discipline or termination) for refusing to do dangerous work.

However, if the employee’s refusal to work is not reasonable given the circumstances, and the employee does not return to work despite specific direction by the employer to do so, the employer may be able to consider the employee to have abandoned his/her position.

Q: Can employees demand a flexible schedule to accommodate caregiving for dependents?

A: Generally speaking, yes. Employers cannot discriminate against employees on account of their family status. It is widely known that, with the closure of schools and daycares, and upheaval of normal life the pandemic has caused, many employees may need accommodation to balance their work and home commitments. Each request for accommodation should be considered on a case-by-case basis and whether accommodation should be made will depend on the individual facts.

Q: Can an employer pay “hazard pay” to employees reluctant to return to work?

A: Hazard pay is additional compensation for employees who work in environments where hazardous conditions prevail. Absent a clause in a collective agreement or employment contract to the contrary, employers are not obligated to pay employees hazard pay, but employers are free to offer it as additional compensation.

Hazard pay is not a substitute for remedying or mitigating a dangerous workplace.

Q: Can employers require their employees to work from home, even if the workplace premises are permitted to re-open?

A:  Employers have the right to implement policies to govern their workplace. In certain cases, requiring employees to work from home, without giving employees reasonable notice of the new policy, may amount to a constructive dismissal on the basis that it is a unilateral change to the employment contract that is detrimental to the employee. Employers can mitigate this concern by ensuring that employment contracts give the employer the authority to make such a change, or by ensuring the employees consent to the change.

It may be reasonable to require employees to continue working from home, especially to respect social distancing protocols. Each case will depend on the circumstances, including the consideration of whether the employees can reasonably carry out their work from home.

However, employees who require access to the workplace should be reasonably accommodated.

Staggering employees’ hours at the workplace may be one strategy employers can use to mitigate the risk of contact between employees and respect social distancing protocols.

We are available.

Fillmore Riley’s employment law practice continues to be available to assist Manitoba employers with their response to the COVID-19 pandemic. Our key contacts are:

David Simpson

Curran McNicol

Mark Newman

Celia Fergusson

Dayna Steinfeld

Jenna Seavers

Kelsey Yakimoski

Gwen Muirhead

Resource posted May 28, 2020, with reports from  Gwen Muirhead.