COVID-19 & Employment Law: January 2021

The BarristonBlog

COVID-19 & Employment Law: January 2021

27 Jan, 2021

On January 19th, 2021, the Sandbox Centre of downtown Barrie hosted a webinar during which Barriston Law Associate Joshua Valler, MPP Andrea Khanjin, and Janice Leroux of HR Performance and Results discussed the most recent COVID-19 updates and how they impact employment law.

Featured below is a brief summary of the information provided in the webinar. A full recording of the webinar may be accessed at the following link: Sandbox COVID-19 and Employment Law Webinar

Work from Home

As a general rule, those employees that can work from home must be permitted to do so. This requirement does not, however, apply to government workers, or any person or publicly funded organization that delivers or supports government operations and services , including those in the health care sector.

A good way for employers to determine whether or not an employee’s attendance on site is necessary is for the employer to take time to consider the employee’s duties; if the employer ends up struggling to come up with reasons the employee must work on site, there’s a good chance they don’t have to.

Employers should write a list of their employees’ names and occupations, with a column next to each name stating the reasons why those employees have to be on site, if they do. As an example of what could be included on such a list, an employer may write that an employee must come in to sign cheques, but will work from home when their presence is not essential to the functioning of the business. This document doesn’t need to be elaborate; its purpose is to have something to provide to authorities should they inquire into why certain employees are still working on site.

Employees may report their employer to the Ministry of Labour for having required them to attend at work. It is in the employer’s best interest for a discussion to take place between the employer and employee to clarify where the employee is expected to work and ensure the employee is in agreeance.

Continued Operation of “Non-Essential” Businesses

Owners of businesses not permitted to have members of the public enter their business premises may still operate in an altered capacity, for example making products available via curbside pickup or delivery. For these businesses, sales must end by 8pm each day, however not all operations must cease at this time; for example, a business owner may remain at the premises beyond 8pm to continue with activities related to the operation of the business. Curbside pickup is permitted between 7am and 8pm daily for these “non-essential” businesses.

Workplace Inspections by the Government

The Ministry of Labour, Training and Skills Development has launched a new campaign called “Stay Safe All Day”. The focus of this campaign is ensuring workplace compliance.

The inspections facilitated as a result of this campaign focus on high-risk workplaces such as warehouses, distribution centers, construction projects, long-term care homes, grocery stores, and workplaces with reported COVID-19 outbreaks.

Employers should be aware of the fact that police or other provincial offenses officers may order a place of business to close where a violation has been identified.

Guidelines for Businesses

Every business and organization must ensure that its screening tool for employees and contractors complies with the updated requirements pursuant to the Ministry of Health and Long Term Care’s COVID-19 screening tool for businesses and organizations.

This screening tool has been released by the Office of the Chief Medical Officer of Health for Ontario, and is available at https://covid-19.ontario.ca/covid19-cms-assets/2021-01/Guidance-Screening-Workplace-Jan7_EN.pdf

Employers should post a screening sheet on their facility’s doors, so that employees know they can’t enter unless they pass screening. Such screening is not limited to employees, but extends to suppliers and couriers entering the business’s premises.

Employers must also ensure that employees are aware of their entitlement to paid leave/and or income replacement for COVID-19-related absences. Examples of statutorily-protected employee absence entitlements include sick leave, family responsibility leave, family caregiver leave, family medical leave, and critical illness leave.

Employment standards legislation has been amended to provide protection for employees, granting them unpaid Infectious Disease Emergency Leave (“IDEL”), meaning that employers cannot terminate the employment of an individual who is not performing the duties of their position for a number of prescribed reasons, including acting in accordance with legislation, being under medical investigation/supervision/treatment for COVID-19, and providing care/support to a prescribed individual for a reason related to COVID-19 (including school/childcare closure).

Employees have the right to refuse work in conditions they reasonably believe will endanger them. It is possible that potential exposure to COVID-19 may constitute such a reasonable belief for all but those for whom COVID-19 is a foreseeable risk reasonably associated with the job, such as healthcare workers. An employee’s perception of risk is not always reasonable cause for refusal, but does warrant an investigation by the employer.

Can Employers Require that Employees are Vaccinated?

The government has not mandated that people be vaccinated, and it is currently unclear whether an employer can require an employees be vaccinated, given that this pandemic presents a novel issue not yet tried by the courts.

For more information on the Ontario COVID-19 restrictions please visit: https://covid-19.ontario.ca/

Charles Lund & Joshua Valler

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