Your real rights when returning to the workplace
the coronavirus pandemic is bringing about a lot of employment law battles about rights, some real, some illusory.
Masks, parental leave and working from home are the workplace issues of the day, and, in every case, many Canadian workers feel an inchoate sense of entitlement. Let’s start with masks. Various Canadian cities have now mandated masks in public workplaces. Some employers have supplemented that with their own mask requirements.
Some, albeit few, employees have physical restrictions that mean wearing masks for long periods is unhealthy for them. With proper doctor’s notes substantiating an actual disability, they must be accommodated. But those employees are few and far between.
But many employees and members of the public also strongly believe they have an inchoate right to enter public spaces and workplaces without the requisite mask. They feel their civil rights are somehow impacted by that requirement.
Let me put that to rest. There is no such right.
If an employer or government mandates a mask, then any employee refusing to wear one at work risks immediate suspension and ultimate dismissal for cause. Members of the public can be excluded from entering that establishment — and should be.
Employers who disregard the law in that respect face two consequences. First, a boycott from members of the public who will not view that workplace as safe. Second, massive liability if anyone enters and is stricken with COVID-19.
The reason is that the law follows public health mandates. Any employer who does not follow up-to-date medical directives is prima facie negligent.
The converse is also true. If an employer follows current public health mandates and someone is nevertheless stricken with COVID-19 in its workplace, the employer has a perfect defence to any negligence action or prosecution under the Public Health Act and Occupational Health and Safety Acts. Following current scientific advice by definition is not negligent.
The next perceived right is that of employees who feel they need not attend work because they are anxious, immune compromised, older, etc. Perhaps they have listened to our prime minister and deputy prime minister’s ministrations about the importance of staying home. But those aspirational exhortations run afoul of employment law obligations to attend a safe workplace.
An employee who refuses to return to the workplace — either because they erroneously view it as unsafe or believe they have a right to continue working from home — faces dismissal for cause and, in addition to losing a job in a difficult economy, disqualification from Canada Emergency response Benefit and Employment Insurance benefits.
An employee who contests the safety of the workplace can have it evaluated by an Inspector from the Ministry of Labour. But employees have been unsuccessful in almost every such challenge across Canada.
The last right is one that concerns parents who no longer have daycare or school for their children. Schools may continue home online learning in September, so this problem is not going away. As a result, some parents believe they have a right to not return to work when summoned.
In this case, they are correct. If a parent needs to stay home to look after children, and do not have anyone else such as another parent, grandparent or daycare to look after them, they have a legal right to stay home.
If an employer fires them for exercising that right, the employee has a good wrongful dismissal case and additional human rights damages might result because of the employer breaching the family status protections in human rights legislation across Canada.
The employer is not without recourse. It can insist the employee look for childcare facilities. If the employee cannot find any, the employer can look, and if it finds appropriate facilities, the employee must take and pay for them. Employees cannot take the position that they are only comfortable with their previous childcare facility that is no longer available.
The more controversial question is whether the employer has to let employees work from home with full pay if they have children who have to stay home. Childcare has to be accommodated, which means letting employees work at home if possible, but if, as a result of lessons, needy children or noisy ones interrupting Zoom meetings, the employer garners no benefit from such work, then that accommodation need not be made.
rights, real and inchoate, are forming July’s Covid-19-related battles and keeping my firm’s lawyers very busy.
And now on to the questions I received recently.
Q: My employer is not recalling me and other older workers. They claim it’s for our own benefit as COVID-19 is more dangerous for our age group. do I have recourse as I want to start working again?
A: In most cases, a layoff is a constructive dismissal. Even if you accepted it, once other workers are recalled, your right to claim constructive dismissal is revived. you also have a human rights case as you were discriminated against due to your age. The employer did not ask you if you wished to remain home. It chose not to recall you directly based upon your age, which, despite its rather paternalistic rationale, violates human rights legislation.
Q: I’m self-employed/contact worker currently getting the Canada Emergency response Benefit (CERB). If I make more than $1,000 this month, but go back under that amount next month, can I reapply for CERB?
A: you can for the applicable four weeks.
Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.