Legalities of COVID-19 Employers Must Know

      Legalities of COVID-19 Employers Must Know

      COVID-19 created dramatic disruptions for workplaces across the country. This past year has challenged employers and employees in unprecedented ways including, lockdowns, financial hardships, layoffs, business closures, and increasing health and safety risks.

      The reality is that no part of our lives is untouched by the pandemic, including our workplaces. Employers have a duty to create and maintain a safe work environment. This guide provides quick references on how to avoid potential legal disputes related to COVID-19 health and safety.

      Privacy Legislation

      The privacy legislation protects employees' personal information from being shared. However, there are exceptions to consent, which can create a grey area with COVID-19 and potentially put employers at risk of breaching the privacy legislation.

      What is necessary to disclose for COVID-19 related exposure may depend on the Occupational Health and Safety Act or on what is required by public health authorities. The ultimate objective is to provide enough information but limited disclosure to maintain contact tracing protocols.

      Employers should never provide identifiable information such as the name, date of birth, or other identifiers of the individual subject of suspected or confirmed COVID-19 cases. Nor should the information on the date of the individual's exposure, the extent and circumstances of their potential exposure be shared. There are exceptions to these restrictions in emergency situations where the individual's life is threatened and their health or the security of another individual is at risk.

      Employers need to advise their employees that there has been a confirmed case of COVID-19 in the workplace. However, they must limit this disclosure to the greatest extent possible to prevent breaching privacy legislation.

      Health & Safety Violations

      Disregard to health and safety measures in the workplace could cost your business thousands of dollars in fines. It could even lead to a mandated temporary closure of your business.

      Under section 43 of the Occupational Health and Safety Act of Ontario, most workers are entitled to refuse to work if they have a reasonable belief that the workplace is putting their health and safety at risk. Employees may refuse work if the employer fails or refuses to arrange appropriate and safe measures to help stop the spread of COVID-19 within the workplace.

      The Occupational Health and Safety Act prohibits employers from penalizing workers for obeying the law or exercising their rights. If COVID-19 work refusals come about within the workplace as an employer, you cannot dismiss or discipline employees for work refusal. Or you may find yourself under investigation with the Ministry of Labour.

      Job-Protected Leave

      COVID-19 has created many challenges for parents with young kids at home. Employers have a duty to accommodatewhich means that sometimes as an employer, it is necessary to adjust rules, policies, or practices to prevent discrimination and help identify other accommodations that will not pose such a hardship on employees.

      Employers cannot discipline, demote, layoff, dismiss, or threaten an employee because they are taking unpaid job-protected leave from work due to COVID-19.

      Employees are entitled to time off work to take care of children out of daycare or for family members tested for the virus. Employees cannot be discriminated against for taking time off to care for others who are closely related to them affected by COVID-19 or who are in self-quarantine.

      An employer who denies the requested leave or takes revenge against an employee for doing so may be putting themselves at risk for potential exposure to a claim of violation against the applicable provincial employment standards that governs this employer.

      Besides, an employer could subject themselves to a whistleblowing claim if failing to comply with legal obligations, injustice, endangerment of health or safety, or deliberate concealment of any of these things. Employees should feel confident that the employer is taking all precautions necessary to protect the workplace against COVID-19.

      Address Employment Matters

      2020 may have been one of the most challenging times for employers to stay consistent and up to date with Employment Standards legislation. In Ontario, the Infectious Disease Emergency Leave affects several rules around temporary layoff, constructive dismissal, termination, and severance. It includes the employee's rights to reinstatement and be free from penalty. In crucial times like the last year we've had, it is not the time to take risks.

      The unprecedented impact on employers and employees is forever changing. The employer must stay up to date and be prepared to address employment matters and ensure that appropriate measures are implemented and maintained. The Stream Dental HR team is committed to helping our clients navigate through these difficult times and provide all hands-on deck to assist your business needs.

      References:

      https://www.osler.com/en/resources/in-focus/coronavirus-navigating-legal-implications-and-business-impacts

      https://www.ontario.ca/document/guide-occupational-health-and-safety-act/part-v-right-refuse-or-stop-work-where-health-and-safety-danger#section-9