COVID-19 – BACK TO THE WORKPLACE
When employees say “NO”
Now that more businesses are opening back up, employers are beginning to wonder what a return to the workplace will look like. As employers who have been in business for long enough will know, coaxing a work-from-home employee back to the office can be touchy under the best of circumstances. Here we discuss some common legal issues employers are likely to encounter when getting their people back to work.
1. Can employees continue working from home if they are afraid to return to work?
The simple answer is no. If the government decides that the employer’s place of business can open back up, the employer is entitled to insist on having its employees return to the workplace. That is the case, whether or not the employee is able to perform the job from home. The pandemic does not change the fact that employers – not employees - get to determine when and how employees do their work. That is, unless working from home becomes a term of the employment contract.
2. Can being instructed to work in an office be grounds for a work refusal?
Employees may refuse unsafe work pending the Ontario Ministry of Labour’s determination. However, so far, the Ministry has toed the government line, having consistently held that the dangers related to COVID-19 do not meet the criteria for a work refusal. The Ministry has made health and safety orders to employers to improve conditions in workplaces, but it does not appear that the ministry has ordered that employees must only work from home. It is however essential that employers provide a safe workplace. This includes providing employees with the appropriate health and safety guidance and direction and, PPE necessary for employee protection. All employers should have a Covid-19 policy put in place.
3. Should employees be told they can return to work “whenever they are ready?”
No, not unless employers are prepared to have their employees work from home indefinitely. At some point, an employee who has been working from home for an extended period of time obtains a contractual right to continue working from home. As long as the employee is working from home due only to the COVID-19 pandemic, that is not a major concern. The longer work from home is allowed to continue, however, the harder it will be to get those employees back in the workplace – both practically and legally speaking. Putting that decision in the hands of the employee risks having them prolong the return indefinitely. Now is the time to create a Working from Home Policy, if the Company does not already have one. That policy needs to make it clear that working from home is temporary and, at the Company’s sole discretion.
4. What if the employee brings a doctor’s note that says they should continue to work from home?
That depends. Undoubtedly, some employees will enlist the help of their doctors for assistance in keeping the work from home arrangement going. Employees are only entitled to reasonable accommodation, not necessarily the accommodation of their choice, or even the accommodation recommended by a doctor. In virtually all such cases, employers are going to be justified in requesting further medical information to determine how the medical condition can be accommodated. In some cases, employers may be justified in requesting that employers submit to an independent medical evaluation.
5. Can employees at heightened risk from COVID-19 insist on working from home?
No – but they can insist on reasonable accommodation under Human Rights Legislation. Employees who are at a heightened medical risk from COVID-19, such as elderly or immune-compromised employees, may be understandably apprehensive about returning to work. While work from home might be the simplest solution, it is not necessarily the only solution. It depends on how the employee can be accommodated in the workplace – information that will not be readily available to the employee’s doctor at the first visit. For instance, an employee who drives to work, parks outside, and works completely alone is at far less risk than an employee who works in the city, takes public transit and works inside in close quarters with others. Again, the employer is entitled to sufficient medical information to determine what accommodation options are available to it in the circumstances.
6. Is stress/anxiety related to COVID-19 sufficient reason to continue working from home?
Interestingly, yes. A medically-confirmed stress or anxiety condition related to COVID-19 – even one that is not rational or based in reality – must be accommodated by employers up to the point of undue hardship. In this case, continued work from home may be the only reasonable accommodation available.
However, this is not a loophole to be easily exploited by inclined employees and doctors willing to pick up their cause. As always, employers are entitled to request reasonable medical support. Particularly where the condition is of a psychological nature, employers are usually entitled to request that the employee submit to an independent medical evaluation.
7. How should employers deal with employees who insist on working from home due to medical reasons?
Conceptually, discipline and termination should be the last option. The first step is to clarify the medical information to determine what accommodation options are reasonable. If the medical advice suggests that accommodation in the workplace is possible, the second step is to stop paying the employee, and telling him/her that the job will be available once the employee is prepared to return to the workplace. If the employee continues to refuse the return to work, only then should the employer start considering discipline and termination. Each of these steps should be done under the supervision of experienced employment law counsel.
8. Each case turns on its own facts- do not apply a one-size-fits-all approach.
Outside of human rights legislation, there is a host of statutory protections afforded to employees, depending upon the facts. This can include the necessity of considering critical illness leave, family caregiver leave, infectious disease emergency leave, etc. In other words, you can require your people to return to the workplace, but employee resistance must be dealt with on a case-by-case basis.
Contact Hyde HR Law today for advice on these and other employment law matters.