/Howard Levitt: My employees say they have COVID-19 symptoms. I don’t believe them and want them back. What can I do?

Howard Levitt: My employees say they have COVID-19 symptoms. I don’t believe them and want them back. What can I do?


My law office has fully reopened along with much of Ontario. Like many jobs, it is difficult to “lawyer” as effectively from the comfort of your home. At least in employment litigation, you require access to all of your files and be able to efficiently move between them and cannot risk that something was not scanned. And there is nothing quite like walking down the hall and having a spontaneous exchange of ideas.

Having Zoom mediations, while emails continue to stream in is distracting and their success rate has proven not as high as in-person conversations. Much of human interaction is difficult to replicate over a telephone or a small computer screen. Face-to-face meetings have more spontaneity and avoid the family and other distractions of home. Then there is the issue of being able to motivate your staff.

With many law firms closed down, it is also a competitive advantage.

We have, over the past few weeks, devised return-to-work programs for our clients and were able to “walk the talk”.

In our case, we started with mandatory attendance every second day for a short interim period, except for those like myself, who had been coming in all along (law firms were deemed essential services from the outset).

Our back-to-work programs have been devised to protect employee and client safety, minimize discomfort and ensure that everyone follows the same rules. They also recognize that some will have greater concern than others due to their age, health or the condition of those with whom they reside.

While every workplace must individualize their program for their circumstances, the constituents are:

Contact

  • Keeping six feet apart at all times.
  • Remaining in your office or at your desk unless going to the kitchen, washroom, reception, dropping something off at someone else’s office or as otherwise necessary.
  • Calling, rather than walking over, when contacting others.
  • Handing over documents, etc. by placing them on a surface from where they can be picked up.

Common Areas

  • Procedure to pass in hallways.
  • Not standing in the hallways, talking about work or socializing.
  • Limiting the numbers in the reception area, kitchen, boardrooms and at the kitchen table — and limiting the number of chairs in each.
  • Delineating where meals and snacks can be eaten.
  • Delineating where to stand and the maximum number in an elevator in our office tower.

Meetings
Protocol for in-office meetings, including when reviewing documents together, and ensuring that such meetings are voluntary.

Personal Protective Equipment

  • Offering PPEs to those who wish them and recommendations as to when and where they be used
  • Cleaning and sanitation.
  • Delineating where there will be hand sanitizers and the requirements for what must be sanitized after each use.

Feedback and Compliance

  • Monitoring of compliance and a process for complaints about potential non-compliance.

It is critical that employers get this right. If they are negligent in preparing and enforcing their return to work protocols, they risk massive civil liability or Workplace Safety and Insurance Board claims from employees who attend work and are infected. Employers need not ensure perfection but are legally required to “take every precaution reasonable in the circumstances for the protection of their employees” (as well as other members of the public).

Wishing to avoid public transit is not a reason to refuse work

Between the Canada Emergency Response Benefit and government statements about the importance of staying home, many of my clients are already having difficulty getting employees to return to work. But while anxiety need not be accommodated, safety must be. If employees refuse to return to a safe workplace, it is cause for their dismissal, resulting in the loss of CERB as well as their jobs.

An exception is if an employee has unavoidable childcare needs. Those must be accommodated. But if there is someone else available to look after the children, such as a spouse, relative in the home or daycare, that must be availed.

And if they have no alternative means of childcare, the employer can find daycare for them, either in the workplace or otherwise. The employee must then accept it, whatever their fears of their children mixing with others. Similarly, wishing to avoid public transit is not a reason to refuse work.

Q: If I volunteer to take unpaid leave from my employer so I can take care of my kids, am I eligible for the CERB? My partner and I have been working full-time from home and have three kids. With school almost over, I am concerned that I will not be able to work full time and take care of the kids.

A: To be eligible for the CERB, you may not leave your job voluntarily.

You and your partner should speak to your respective employers about accommodating your childcare needs over the summer months. Employers have an obligation to accommodate legitimate and unavoidable family obligations up to the point of undue hardship. Since the two of you are already able to work remotely and watch your children, it is likely that your employers could accommodate you over the summer.

The only scenario in which you would be eligible for the CERB is if you are truly unable to work and watch your children at the same time or the employer does not permit that and one of you must stay home.

Q: I was laid off in April for economic reasons from my part-time job where I worked for about 17 months. My boss now wants to recall me in July full time — which I am not keen on. Can I refuse?

A: In most cases an employer does not have the right to place a non-union employee on a temporary layoff and it is a constructive dismissal.

Employees can take a reasonable amount of time to think about whether they want to accept the change. Since only one month has passed, you can still claim constructive dismissal.

In the circumstances, however, since your job was part-time and you only worked there for 17 months, you could not claim very much in damages.

The employer does not have the right to change your status upon return to full time from part-time and that too would be a constructive dismissal permitting you to refuse it.

Q: I have called employees back and they refuse saying they have COVID-19 symptoms. I don’t believe them. What is my recourse?
A: In Ontario and some provinces, you are prohibited from requesting doctor’s notes. You can speak to their friends or review their social media profiles to see if they are engaging in activities inconsistent with what they claim. Short of that, other than hiring a private investigator to observe them or following up with them on their recovery, there is little you can do.

Q: Can an employer force me to take the temperature of customers walking into the store?
A:
If it’s done in a way that you need not have contact with the customer i.e. having them take their own temperatures and then placing it down for you to pick up, yes. As for employees or customers not wanting to be subjected to temperature checks, since such checks are relatively unintrusive, safety trumps privacy.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.

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