As we continue to see encouraging developments given the decreasing incidences of COVID-19 in Canada and a progressive reopening of the economy, employers face challenges complying with the rapidly evolving orders and guidelines issued by the government and public health authorities with regards to ensuring a safe workplace for all.
In the last several months, employers have had to quickly adapt and learn about how to prevent the transmission of COVID-19, quickly implementing efficient remote work measures, planning and maintaining a safe return to work, and navigating existing, as well evolving legislation, regulations and government orders resulting from the pandemic. As many experts predict a second wave of the COVID-19 pandemic in the fall, so will uncertainty, risk and ambiguity on managing rapidly evolving circumstances continue. It is therefore not surprising that the pandemic has increased potential employment litigation exposure from a variety of sources.
Claims may be triggered if employees are laid off, have their work hours or wages reduced, refuse the recall, contract the virus in the workplace, and are denied the right to continue working remotely or other requests for accommodations.
The areas employers are likely to notice a rise in litigation include:
- Constructive dismissal claims arising under applicable employment legislation following temporary lay-offs, and hour or wage reduction.
- Employment discrimination claims arising under applicable human rights legislation, based on allegations related to discriminatory rehire and recall decisions, disability discrimination, failure to reasonably accommodate employees with a disability (including denial of requests to work from home), forced leaves of absence, and co-worker stigma and discrimination based on race.
- Workers’ compensation claims for allegations that an unsafe workplace has caused sickness or death due to COVID-19.
- Health and safety violations claims arising under applicable occupation health and safety legislation for alleged employer failure to take appropriate measures to reduce COVID-19 exposure and transmission within the workplace, to provide necessary personal protective equipment, adequate handwashing areas and sanitizing dispensers, or enforcing social distancing protocols.
- Violations of a collective bargaining agreement claims, which often include provisions that address scheduling, meal and rest breaks, work assignments, layoffs, and other terms and conditions of employment.
- Employment or labour standard claims arising under applicable employment legislation for non-existent or inadequate notice given to laid off employees, failure to provide leave of absence or sick time, and wages or hours violations stemming from remote work.
- Privacy violation claims arising under applicable privacy legislation for the mishandling of employee personal information.
As such, it is advisable for employers to take proactive steps to mitigate their exposure to COVID-19 employment-related claims, namely:
- Staying abreast of new government orders and/or legislative enactments related to COVID-19.
- Developing a return-to work protocol that incorporates provincial health orders and local health authorities’ workplace safety guidelines, communicating the protocol to all employees, ensuring compliance with the protocol, investigating and addressing any reported concerns, and documenting the investigative process and outcome.
- Ensuring relevant policies are revised and updated, including policies related to workplace harassment and discrimination, reasonable accommodation, and remote work.
- Educating management and human resources professionals on applying policies fairly, uniformly and consistently.
- Preserving the confidentiality of all medically related information provided by employees during the pandemic pursuant to applicable privacy laws.
- If reducing hours and wages, providing notice of change as required by applicable employment legislation and documenting employees consent to such changes.
- If proceeding with layoffs, providing appropriate notices as required by applicable employment legislation and ensuring selection criteria is non-discriminatory.
- If an employee reports a positive and/or presumptive COVID-19 diagnosis, communicating with local public health authorities for guidance, documenting steps taken and complying with recommendations, including quarantine timeframes and return-to-work parameters.
- Handling recalls, rehire and job offers in a manner that limits the risk of discrimination claims.
- Implementing a reasonable accommodation process to evaluate requests for temporary modifications to job descriptions, remote work, modified work schedules, etc. Such requests should be reviewed on a case-by-case basis and properly documented.
- Evaluating requests for leaves of absence and determining whether a leave entitlement exists under applicable employment legislation, which must be reviewed on a case-by-case basis and properly documented.