The pandemic has raised questions employers and employees have not had to grapple with before.
The now-available vaccines have added to those questions.
The Chief asked employment and labour lawyer Andrea Raso, a partner at Clark Wilson LLP about how this has affected workers’ rights.
Here's an edited version of that exchange.
Q: One of the recent changes in the law was amendments to the Employment Standards Act, providing workers with leave to get each dose of their COVID-19 vaccine, right?
A: Yes, workers get three hours’ paid leave. The employer pays that and we will see if there will be any ability for the employer to get reimbursed by the government for that. There hasn't been any statement on that yet. Right now, the employer will have to pay.
Q: For this, can the employer ask if the employee went to get the shot?A: Yes. In fact, the legislation says the employer can ask for proof but can't ask for a doctor's note. They don't want people having to go to the doctor's office to get notes, but the employer is entitled to ask for proof, so that might be a printout of the confirmation of their vaccine appointment or the little certificate you get when you get your vaccine. It is paid time off, so your employer can ensure the employee is taking time off to get the vaccine.
Q: What about in general, not related to that three hours off? Can an employer ask employees if they are getting vaccinated? After all, many employees have been working from home due only to the pandemic, and employers may start to want to bring folks back when they are vaccinated.A: As of right now, no. We are cautioning employers against asking that question. It is a personal question; it is a private question. It could potentially be offside of human rights legislation if, for example, an employee can't get the shot due to a medical condition or for religious or cultural reasons. Having a blanket policy that you can ask employees would be offside of that. The other issue is that it is not like the vaccine is a panacea — that once you get the vaccine, you are free to roam about without using any of the protection. Because of that, someone who hasn't got the vaccine, but is following all the protocols, at this point, they aren't in violation of any health order.
Q: Then it gets complicated for employers if you are trying to figure out when to bring people back to the office, doesn't it?A: Exactly. Hopefully, there will be some guidance with this. The last that Provincial Health Officer Dr. Bonnie Henry said about this was that employers should stop encouraging workers back to work unless it is essential. There's a public health order that if an employer has three employees test positive for COVID-19, they will be shut down for 10 days. The messaging right now is employers should be permitting employees to work from home wherever possible. That may change at some point.
At that point, it would be like the accommodation process, where if someone has a medical issue and that is why they are working from home, the employer would be entitled to ask for medical proof that the employee has to work from home. I think we will eventually get to that point, but I don't think we are there right now.
Q: Thinking ahead, anecdotally, I have heard employees saying they don't ever want to go back to the office. How much leeway do employees have once most folks are vaccinated to still say they don't feel safe?A: If they don't feel safe, and the pandemic is over, that will not be a legitimate reason not to return to work. It might be a mental health reason. If it is, then the employer might have an obligation to accommodate that mental health reason — that fear of not being able to come back to work. It is really going to boil down to, at the end of the day, employees might not have the legal right to say, "I am going to keep working from home." But, we are hearing that they may have that pull on employers because employers don't want to lose their employees. So, if they have a group of employees saying, "I want to work from home and I can do so successfully," then employers — outside of legal reasons — might have to think about business reasons to keep these employees. Everything we hear right now is predicting there may be more flexibility. There might be more working from home than there used to be permitted; I guess a lot will depend on the employer and their business needs.
Q: What if you are hiring a new employee? It would be great to have someone who is vaccinated or immune. What will happen with that?A: The way the law has been is that you cannot ask for medical information at the time of hire, unless it is in a safety-sensitive position.
If you are working down in a mine and you have a heart condition, you should disclose that so that an employer can see if they can accommodate that. Otherwise, typically those questions are offside, and I think they will continue to be offside. Whether someone gets any vaccine typically has been a very personal decision. It is hard for the employer to venture into that. If we find out that if people get a booster next year that they are 100% protected and unable to pass the virus on, then that may change. But right now, getting the vaccine, you still have to do all of the other things, and the employer still has to have all of those protocols in place. I can't see how they can justify what is seen to be an invasion of privacy.
Q: We are all being told as employees not to come to work if we are sick at all, even if it is just a headache. Where does that fall in terms of using sick days?A: That is what everybody is looking at right now. In Ontario, they just passed legislation that allows employees to have three days of paid sick leave — paid by the employer — and then the employer can seek reimbursement from the government.
That is the first time we have seen mandated sick leave paid by the employer. During the pandemic, the BC government did pass legislation that allows employees to take three consecutive days as sick days that are job-protected, which means just like with pregnancy leave, you can't be terminated for taking it.
But they are unpaid days. I think there is going to likely be pressure to follow Ontario's model, where the employer has to pay the employee, or the employee can get government benefits. What the theory is that otherwise, employees are still not going to take the time off if they aren't getting paid. I think we might see some sort of change going forward.
That may be a heavy burden for employers to have to pay for three days of sick leave. It may be too that an employer can require proof of that.
Q: What if you get a COVID-19 test and they tell you to wait for your results?A: That has been happening and at this point, you can take a COVID-19 leave of absence, which is also under the Employment Standards Act, which says for specific COVID-related reasons, you have to be off, you are entitled to do that, you are job-protected. But there is no obligation on the part of the employer to pay for that.
Q: What else do you see is going to be in your wheelhouse regarding the vaccine?A: Right now, a lot of employers are asking if they can make getting the vaccine mandatory.
I think the consensus at this time is, no, you can't. It is, again, the balancing of the privacy issue and human rights. And everyone has to follow protocols at work whether or not you have the vaccine. That is still going to be an issue for a while.
I really think the next thing is that we will see a lifting of restrictions, hopefully in the summer and the fall, and I think the real issue will be how to get people back into the workplace, because as we discussed, there are a lot of people saying, "I don't need to be in the workplace." Employers are really going to have to look at that. I think there is a false sense that everyone can work from home and do it successfully.
That might be true for some industries but for some other sectors, it was a really, really quick fix. There wasn't a lot of thought put into whether it was the best way to run the business. So, I think some employees have a false sense that this is the best way to work when really it was just supposed to be an interim, emergency measure.
Employers will be challenged to figure out a way to allow employees some flexibility but still ensure that things like employee morale and proper supervision of certain employees — and creating a collegial feel that is very important to many businesses — can still be maintained.
