Authors
The COVID-19 pandemic has been one of the most universally challenging times for Canadian employers. Almost three years into the pandemic, employers are still faced with difficult decisions—including how to grapple with evolving views on the role of the office and where work gets done. While some organizations are prioritizing or even requiring a full return to the physical workplace, others are managing a hybrid workforce. While we see a range of approaches, many organizations are increasingly managing an uptick in in-person attendance. This is a good time for organizations to examine the state of their workplace policies and to consider whether they are purpose-fit for their evolving workplace cultures, and current health and safety concerns.
This article provides employers with guidance to consider when revisiting, crafting and implementing return-to-workplace policies for employees.
Over the last several months, governments have dropped most public health requirements related to COVID-19 (masking, vaccination, social distancing, etc.). In response, many workplaces have also removed many—if not all—of the public health restrictions that they had implemented at the height of the pandemic. However, it is important for employers to remember that, while the state of the pandemic has shifted, they continue to have obligations to take reasonable steps to maintain the health and safety of the workplace. To that end, scientific and public health guidance should continue to drive employers’ workplace health and safety policies. Employees’ privacy and human rights should always be respected but must be balanced against an employer’s business interests and legal responsibility to create a safe and healthy workplace1.
In respect of vaccination policies in particular, there is increasingly a question about whether such policies are necessary and/or effective in preventing or minimizing the spread of COVID-19 in the workplace. Many employers are therefore reevaluating the need for such policies. Vaccination status is personal health information which employers should only be requiring disclosure of if such disclosure is necessary and proportionate. Employers who choose to maintain vaccination policies should ensure that they can demonstrate a need for the policy and that the policy is proportional, scientific- and evidence-based, does not require employees to disclose more personal information than necessary, and provides accommodation for individuals who cannot be vaccinated for reasons protected under human rights legislation. These criteria were satisfied in the recent case Hawke v. Western University, where the Ontario Superior Court of justice ruled that Western University’s proof of vaccination requirement did not violate applicable privacy legislation2.
While the case law is always several months removed from the current pandemic environment, we have seen courts uphold vaccination policies when these requirements are met. In the unionized labour context, mandatory COVID-19 vaccination and testing policies have generally been upheld3. However, more recent awards suggest that strict policies requiring employees to be double vaccinated, and which provide for the removal of unvaccinated employees from the workplace if they do not comply, may no longer be reasonable, given scientific evidence of the waning efficacy of vaccination4. In the non-unionized context, a British Columbia court recently dismissed a constructive dismissal claim by an employee who was placed on unpaid leave for failing to comply with a mandatory vaccination policy5, holding that the employer’s policy was reasonable based on the information available at the time. Caution should be exercised in relying on these decisions, however, given that a) they are always fact-specific (having regard for the nature of the workplace, the terms of the policy, etc.) and b) while decided recently, the facts underlying the decisions arose at different stage(s) of the pandemic.
While much of the discourse surrounding the COVID-19 pandemic has focused on health and safety issues, broader approaches to the way we work continue to garner increasing attention. Now is a good time for employers to review other workplace policies to ensure that they reflect the current work environment. These include:
Many organizations that are requiring a return to the office (either on a full-time or hybrid basis) are being met with resistance from some employees. We are often asked whether an employer can mandate that their employees return to work. The answer is that employers generally have the right to require employees to return to the office. However:
It is important for employers to promptly address (including through progressive discipline) employees who are choosing not to return to the office without approval. Employees who are permitted to continue working from home in the face of a policy requiring in-person attendance may be able to argue that, at some point, the right to work remotely became a term of their employment.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
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