Coronavirus changing discipline in workplace
Rank-and-file employees now facing career consequences for risky behaviour thanks to virus
One year ago, hosting a pizza party with co-workers or showing up to work with stomach bug symptoms were unthinkable in terms of fireable offences.
But legal suits based on such incidents are now before the courts as COVID-19 upends the way managers enforce health mandates and discipline employees.
Like politicians and other high profile individuals who have recently been caught travelling in defiance of regional health orders, rank and file employees are now facing career consequences for risky behaviour that would otherwise go unnoticed.
A recent example is a neonatal intensive care nurse from London, Ont.,
who was fired on Jan. 19 after speaking at an anti-lockdown rally in Washington, D.C. In a statement, the London Health Sciences Centre said it suspended Kristen Nagle without pay in November for actions “not aligned” with its values and then terminated her after an internal investigation.
The case reflects the growing issue amid the pandemic of whether someone’s behaviour is a risk to the employer’s reputation.
“Things travel so fast on social media,” says Danica McLellan, an Albertabased employment lawyer at Neuman Thompson. “Employers are definitely crafting policies to make sure that they’re getting ahead of these sorts of issues.”
McLellan says the starting point for an employer to look at your off-duty conduct is whether there’s a connection to the workplace.
“For example … two employees go to the bar and they get into a fight. Or an employee sexually harasses another colleague. There’s a nexus, a connection to the workplace,” says McLellan. “Another one is if an incident occurs on the property, but not during working hours. Two people get into a dust-up in a parking lot, or someone smoking weed in a parking lot.”
There are limits to what your employer can fire you for when it comes to your off-duty behaviour. For example, getting pregnant or attending religious festivals may be protected under human-rights laws.
Some employers have built screening for risky behaviour into their workplace policies with things like COVID-19 symptom questionnaires that ask about travel. But whether or not your workplace has a policy that explicitly prohibits international travel or breaking public health guidelines, your boss can still take action on your risky behaviour under the right circumstances, says Sandra Guarascio, a lawyer at Roper Greyell who practises in British Columbia.
That’s because workplace lawyers can rely on a seminal 1967 legal case, Millhaven Fibres Limited v. O.C.A.W., Local 9670, which says your boss must prove at least one of five factors before disciplining an employee for off-duty conduct, says Nancy Barteaux, founder of Barteaux Labour and Employment Lawyers.
Those five factors boil down to: whether the employee’s conduct harms the company’s reputation or product; whether the employee is unable to perform their duties satisfactorily; whether other employees will refuse, be reluctant or be unable to work with you; whether the employee is guilty of a serious breach of the Criminal Code; or whether the employee’s conduct makes it difficult for the workplace to operate effectively.