Companies concerned about Covid-infected employees
So many of the questions from our clients in 2020, not surprisingly, involved circumnavigating the issues surrounding COVID-19.
Recently, one client inquired about terminating a “problem” employee for cause because he tested positive for the novel coronavirus. The employee’s disciplinary history involved an altercation, in which he had to pay thousands of dollars for damages involving a hotel room he rented with a colleague. Our client came to learn that he had a psychotic episode and was admitted to the hospital that night.
Given the violence at the hotel, my client wanted to fire the employee at that time. It did not help that some co-workers (who learned of the incident through water cooler chat) complained of feeling “unsafe” in his presence.
The employee wa s long-tenured, had never previously been in difficulty and had no prior violent history. The medical condition causing the outburst would have made the firing unlawful and in violation of the Human Rights Code.
Begrudgingly, and with a strict warning to follow his doctor’s orders to avoid another incident, the employer agreed to bring him back.
Months later, and incident free, the same employee contracted the virus. Following his recovery, our client returned in hopes of obtaining my blessing to terminate for cause. His rationale? The earlier hotel incident led my client to believe that the virus has been contracted irresponsibly through disregard for workplace policies and general safety guidelines.
My obvious questions: “What do you know about how he contracted the virus? What evidence is there that he contracted it through irresponsible behaviour? Have you seen him violate workplace policies relating to social distancing or wearing protective gear? Do you have any proof that he is socializing outside of his ‘ home bubble’ or attending large gatherings?”
Not surprisingly, it became clear that the employer was motivated to seize on something to be rid of this employee. In those circumstances, not only could the employee not be fired, but doing so would both be a wrongful dismissal and a human rights violation, giving rise to additional damages. It would be just like firing any employee for being sick.
You can only consider terminating an employee for cause if you have solid proof that the employee behaved in violation of health and safety guidelines, and for potentially recklessly exposing their colleagues.
Many companies are concerned about employees returning to work after contracting COVID-19, but, the lesson is, such employees cannot be treated punitively following their return.
Also, other employees, anxious about an employee’s return, can themselves not be afforded special treatment because of fear if the employee isolated from the workplace first and the employer followed all public health guidelines.
As I have said in these columns before, companies have no obligation to accommodate the general anxiety of employees fearful of returning to the workplace. As long as the employer has taken steps to minimize the risk of transmission, instructed the infected employee to follow their doctor’s advice and ensured that anyone who has COVID-19 symptoms (or not fully medically recovered) are prohibited from entering the workplace, everything should resume to business as usual.
Companies should also remember that they have an obligation to mitigate privacy related concerns and ensure that any information collected is kept separate from the employee’s general file ( that would be accessible to anyone in management).
Leaking, even inadver
THE LESSON IS SUCH WORKERS CANNOT BE TREATED PUNITIVELY UPON RETURN.
tently, confidential medical information could expose employers to liability. Of course, to the extent the fact that someone had contracted COVID-19 has to be disseminated to those with whom they might have had contact with, that is permissible, for the protection of those workers and their families.
Your obligations to keep your employees safe under the Occupational Health and Safety Act in the current climate at least, trumps privacy concerns insofar as it relates to questioning your employees about their off- duty conduct. You must have some reason to believe that an employee may have been irresponsible in perhaps attending a “hot spot” before questioning them. The ques
tioning should be reasonable in the circumstances and applied consistently to everyone suspected of similar conduct. In fact, not questioning such employees, could pose risks for customers, coworkers and their families. It could also be deemed negligent on the part of employers, exposing them to liability.
Financial Post Got a question about employment law during COVID-19? Write to me at levitt@ levittllp. com. Questions are edited for clarity and space. Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.