Principles existing before the pandemic continue to apply now, say labour and employment lawyers
A year and a half after the COVID-19 pandemic began – and with the restrictions that that entailed -- employees have started to return to the office. With that comes a new set of challenges, including continued masking in the office, and under what circumstances employees can continue to work from home.
We spoke to two lawyers (one in Calgary, one in Quebec) to get answers on employment and labour law matters such as duty to accommodate, questions about vaccination, and workplace safety.
Can an employer ask an employee if they have been vaccinated?
The short answer is no, unless vaccination is a requirement to perform one’s workplace duties.
Under Quebec’s charter of human rights, employees are afforded protection from questions regarding their medical conditions or histories, says Andre Sasseville, a partner and employment and labour lawyer at Langlois Lawyers in Montreal. “There are exceptions whenever the request is reasonable, and in relation to the fulfilment of the job,” says Sasseville; for example, when vaccination is required to perform one’s workplace duties.
However, he says, “if an employer has a different set of protection rules for employees who have been vaccinated, then in general the employer is allowed to ask the question” about vaccination status, and if an employee refuses to respond, some case law may indicate that employers could treat employees who refuse to answer in the same way as employees who have not been vaccinated. In more extreme cases, a continued refusal to answer could result in dismissal.
Even Quebec’s newly announced “vaccine passport” system may not affect workplace situations, as it pertains to visiting commercial establishments such as restaurants, bars and gyms, and some events.
Can an employer require employees to be vaccinated?
Vaccination is not compulsory, although in some sectors employers may require employees to be vaccinated as a condition of performing their duties.
“Established case law -- most came from arbitral jurisprudence – has dealt with this issue prior to COVID, especially related to flu shots,” says Steve Eichler, a labour and employment partner at Field Law in Calgary. “If the workplace is one where there is likely to be an elevated need [for workers to stay healthy] – so, for example, healthcare facilities, senior care residences -- there is going to be a stronger foundation for the argument that the dire impact [of transmitting disease] is such that mandating vaccination is appropriate.”
Even though COVID-19 is somewhat novel, “it’s not really novel in terms of principle,” Eichler notes; the same workplace requirements may have applied in the past to getting flu vaccines, for example. “Can you force people to get vaccinated? No. Bodily integrity is something the law understands well. … Employers can really only mandate workplace policies, not life policies.”
But an employer can say, “’given what we do, in order to be here and work here, you have to be vaccinated.’”
Do employees have the right to continue to work from home?
Again, the short answer is no. Working from home isn’t a “right,” though employers may have a duty to accommodate employees who cannot safely or readily come into work – for example, owing to a disability.
In Quebec, an employer cannot permanently require an employee to work from home; it’s considered an invasion of an employee’s right to privacy in their home environment, says Sasseville. But an employer can certainly refuse an employee’s request to continue to work from home and require that all employees return to work, unless there are stipulations to the contrary in the contract of employment, he says.
That said, “We expect that most employers, because there’s a shortage of manpower in Quebec, will not oblige employees” to work from the office if they don’t wish to, in order to retain them as employees, he adds.
Many businesses have been functioning by complete remote working for a year and a half, so remote working is still an option as accommodation, Eichler says. “If you suddenly say, ‘we're not going to tolerate it at all,’ I think you might be faced with the argument” that even though remote working may not have been ideal for the company’s business model, “surely you can accommodate those who require accommodation.”
What kind of accommodations does an employer need to make for employees who may be immunocompromised, or request other accommodations?
Reasonable accommodation must be made, says Eichler, who stresses that there is “no such thing as perfect accommodation.”
If a human right is triggered, “then you have the right to accommodation, which may include working from home.” But, “even there, accommodation isn’t an absolute right, it’s subject to undue hardship.” So, for example, an employee suffering from severe asthma, which meets the threshold of disability, might request to work from home full-time if, say, they are living in a part of the West affected by the wildfires and smoke (or, fear the enhanced risk of contracting COVID-19); mild asthma, however, might not merit the same accommodation.
Accommodation is required if the employee is part of one of the enumerated categories of persons whose special rights are protected under the Charter, says Sasseville: for example, the handicapped. In Quebec, this does not include the obligation to take care of children under provincial legislation, meaning that employers are not required to provide accommodation for childcare responsibilities. This would not apply to employees who work in federally regulated workplaces such as banks, airlines and telecommunications companies.
“The most difficult situation that we will encounter relates to employees hired during the COVID pandemic, because in such a case, employees who have not come into the office will now be required to do that,” Sasseville says. This would not apply to employees hired during COVID who have agreements to work remotely on an ongoing basis stipulated in their employment contracts, he adds.
Can employers be held liable for not providing a safe workplace, despite enforcing protocols and requiring PPE?
Yes; employers always have the responsibility to maintain safe workplaces, as stated in federal and provincial laws.