Some Canadian provinces as well as some countries around the world are starting to open up. CP photo

Employment lawyers on returning to work during and after the pandemic

Most employees will have to return to work if their employer is meeting all of the safety guidelines

TORONTO — As provinces begin the slow process of reopening their economies and people start returning to the workplace, questions abound about the rights of employees and responsibilities of employers in the aftermath of COVID-19.

The Canadian Press asked two employment lawyers, Adam Savaglio, a partner at Scarfone Hawkins LLP, and Lior Samfiru of Samfiru Tumarkin LLP to answer some oft-asked questions about the legalities of getting back to work.

Do employees have to go back to work if they’re asked to, or can they continue working remotely?

Most employees will have to return to work if their employer is meeting all of the safety guidelines set out by the government, lawyers say. But they note there are some exceptions.

For instance, an employee who is the primary caregiver for a child and doesn’t have alternate care will be able to stay home from work and continue accepting government benefits without fear of losing their job, Savaglio said.

And he said employees don’t have to accept working for fewer hours or less pay.

“Can the employer modify your hours like, hey, come back three days a week? No, they can’t,” Savaglio said. ”They have to get into an agreement with you. They’re creating a new employment contract with new employment terms.”

Savaglio said there are some questions that don’t have answers yet.

“We’re in an unprecedented time and lawyers go by legal precedent,” he said.

But it seems some excuses won’t fly. For instance, it’s the employee’s legal responsibility to get to work, which could present difficulties if the employee doesn’t have their own car and worries about the safety of public transit.

Savaglio said in cases like that, it’s in the employer’s interest to be flexible with their workers.

“It’s in these times that really there should be a duty to co-operate between the employer and the employee, where you go back and forth to try to figure out what’s the best circumstance for me to perform my duties under my employment contract,” he said.

What can employees reasonably expect of their employers when it’s time to return to the workplace?

“An employer must follow each and every single requirement that’s imposed by the government and by health authorities that may be industry specific,” Samfiru said.

For instance, in Manitoba, retail stores have been allowed to reopen at half-occupancy, as have restaurant patios. In Ontario, retail locations with a street entrance will be allowed to open for curbside pickup this week.

Samfiru added that those guidelines may change over time, and “it is up to the employer to stay up to date.”

If an employee feels that their employer isn’t doing enough to protect them from the virus, what can they do?

“There is a legal process that an employee can engage in if the work is unsafe. It’s called a work refusal, which may also require the company to call in an inspector from the Ministry of Labour, who can then determine whether in fact the work is safe or not,” Samfiru said.

He said those inspectors will have their work cut out for them, because they’ve been trained to make sure equipment is working properly and safety measures are in place. Evaluating the spread of a virus is untrodden territory.

Does an employee have to tell their employer if they’ve had COVID-19?

A staffer doesn’t have to tell their boss if they were diagnosed and then cleared of the virus before returning to work, Samfiru said. But if the person may have recently been exposed to COVID-19, they have a duty to report it to their employer.

“If you’re in a situation where you could conceivably be putting others at risk and you know about that, you must tell your employer,” he said. “You must allow them to understand how to deal with you and then whether they need to exclude you from the from work or maybe require other employees to self-isolate or even shut down the business completely.”

He added that if an employee knowingly puts their coworkers at risk without informing them, they could be personally liable.

The decision of whether to disclose is one of common sense, he added.

“If you know someone that had the virus and now you’re not feeling well, reasonably you would expect that there’s a problem,” he said. “If you’ve been self-isolated at home for the last two months, and now you have a cold, you probably are not going to think that there’s a real risk there.”


Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Alberta Health Services' central zone jumped from 162 active COVID-19 cases to 178 on Friday. Five additional deaths were reported provincewide, bringing the toll to 323. THE CANADIAN PRESS/Graham Hughes
622 new COVID-19 cases set another daily high Friday

Province confirmed 622 additional cases Friday

City of Wetaskiwin Mayor presenting the AUMA Above & Beyond Award to John Maude and Susan Quinn. Ren Goode/ City of Wetaskiwin.
Wetaskiwin County residents win the AUMA Above & Beyond Award

John Maude and Susan Quinn are being recognized for their role in Wetaskiwin’s sustainability.

Alberta children whose only symptom of COVID-19 is a runny nose or a sore throat will no longer require mandatory isolation, starting Monday.
477 new COVID-19 cases confirmed in Alberta on Thursday

Changes being made to the COVID-19 symptom list for school-age children

There were 410 COVID-19 cases recorded in Alberta Wednesday. (File photo)
Alberta records 410 COVID-19 cases Wednesday

Central zone dropped to 160 active cases

Shaun Isaac, owner of Woodchucker Firewood in Trochu, is awaiting a new shipment during a firewood shortage in the province. All of the wood he has left is being saved for long-time customers who need it to heat their homes. (Contributed photo).
Firewood shortage in central Alberta caused by rising demand, gaps in supply

‘I’ve said “No” to more people than ever’: firewood seller

Conservative leader Erin O’Toole rises during Question Period in the House of Commons in Ottawa on Wednesday October 28, 2020. (Adrian Wyld/The Canadian Press)
Conversion therapy ban gets approval in principle, exposes Conservative divisions

Erin O’Toole himself voted in favour of the bill, as did most Conservative MPs

Pilots Ilona Carter and Jim Gray of iRecover Treatment Centres, in front of his company’s aircraft, based at Ponoka’s airport. (Perry Wilson/Submitted)
95-year-old Ilona Carter flies again

Takes to the skies over Ponoka

Children’s backpacks and shoes are seen at a daycare in Langley, B.C., on Tuesday May 29, 2018. Alberta Children’s Services Minister Rebecca Schulz says the province plans to bring in a new way of licensing and monitoring child-care facilities. THE CANADIAN PRESS/Darryl Dyck
Alberta proposes legislation to change rules on child-care spaces

Record-keeping, traditionally done on paper, would be allowed digitally

Prime Minister Justin Trudeau shakes hands with US Vice-President Joe Biden on Parliament Hill in Ottawa on Friday, December 9, 2016. THE CANADIAN PRESS/ Patrick Doyle
A Biden presidency could mean good news for Canadian environment policy: observers

Experts and observers say even a U.S. outside the Paris agreement may ultimately end up in the same place

People take a photo together during the opening night of Christmas Lights Across Canada, in Ottawa, on Wednesday, Dec. 4, 2019. The likelihood that most Canadians will enjoy a holly jolly Christmas season of gatherings, caroling and travel is unlikely, say public health experts who encourage those who revel in holiday traditions to accept more sacrifices ahead. THE CANADIAN PRESS/Justin Tang
Ho, ho, no: Experts advise preparing for a scaled-back COVID holiday season

Many of the holiday season’s highlights have already been scrapped or are unlikely to take place

Sen. Kim Pate is shown in Toronto in an October 15, 2013, file photo. The parliamentary budget office says a proposed law that would give judges discretion on whether to apply a lesser sentence for murder could save the federal government $8.3 million per year. THE CANADIAN PRESS/Colin Perkel
Judicial discretion for mandatory minimum sentences for murder would save $8.3M: PBO

The result would be fewer people in long-term custody at federal correctional institutions, experts say

Husky Energy logo is shown at the company’s annual meeting in Calgary on May 5, 2017. THE CANADIAN PRESS/Jeff McIntosh
Husky pipeline spills 900,000 litres of produced water in northwestern Alberta

The energy regulator says environmental contractors are at the site

Most Read