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Legal minefield staked as workspaces reopen

Privacy laws prevent employers from questioning vaccination status, but most employees can’t refuse to return to the office if they feel unsafe
Many employees reluctant to return to the office while some employers want all hands on deck. | CBRE

Many employers in B.C. plan to start bringing employees back to the office in the fall. Their staff, in a lot of cases, have been working from home since March 2020 because of the COVID-19 pandemic.

As of September 7, the province plans to move to Phase 4 of its reopening and restart plan. At this stage, work places can fully reopen.

Surveys suggest many employers plan to move gradually, taking a phased-in approach, while others will permanently adopt a flexible work schedule.

“Only six per cent of the organizations that we surveyed are planning to call everyone back,” said Kelsey Coburn, research associate of human capital for the Conference Board of Canada.

Most employers surveyed said they plan to adopt some form of flex work schedule – one that allows some employees to continue to work from home, at least part-time, and have to come into the office only two or three times a week.

But some employers are eager to repopulate their offices with full complements of staff, and there are good reasons for doing so. Some employers have witnessed serious declines in worker morale or productivity during the pandemic, and the loss of office culture and discipline may be part of the problem.

“There are a whole host of reasons why employees being in the workplace is better for both the employer and the employee,” said Veronica Rossos, a lawyer specializing in employment law at Miller Thomson LLP.

“I think a lot of work places have realized that culture and workplace ethos are very difficult to maintain at a distance. There are obviously performance management issues that are much easier to address when people are in the workplace.

“An employer wanting employees to return to work in order to foster those kinds of relationships and that kind of relationship with their employees is, in my view, within their rights to do so.”

But human resources departments can expect some challenges with a full return to the office. Both employers and employees would be wise to know what their legal rights and obligations are.

Employers who want to bring all or most of their workforce back to the office could face legal quandaries. They are legally obliged to ensure a safe work environment for their employees, but privacy laws restrict them from asking employees health-related questions, including whether they are vaccinated.

Rossos said one of the top questions she has been getting from employers is whether they can require employees to be vaccinated before bringing them back to the office.

For employees, one of the top questions is whether – now that they have proven they can do their job from home -– they can insist on continuing to work remotely.

The answer is generally “no” to both questions, though there are grey areas.

“It remains a little bit unclear, because the courts have yet to weigh in on what, if any, of these provisions may be contrary to whatever laws,” Rossos said.

“There is a tension between a privacy right – so not having an obligation to disclose your health information to your employer – and the obligation of an employer under Workers’ Compensation legislation … to ensure that everyone is in a safe and healthy workplace.”

There are cases where employers can require their staff to be vaccinated. A long-term care home is one of those cases. Provincial policy requires all staff working with the elderly to be vaccinated. Otherwise, they must continue to follow strict COVID-19 protocols like wearing personal protective equipment at all times. In cases like these, employers are allowed to ask a worker for proof of vaccination.

But long-term care homes are an exception to general privacy rules that prohibit employers from even asking if employees are immunized. Rossos added that the rules could change, however, either through legal precedents or legislative changes.

“It’s entirely possible that we may see some legislative changes that will make it a little bit more permissive in the workplace,” Rossos said.

Although employers can’t legally ask their employees to prove they have been immunized, many employees are likely to volunteer that information to their peers and employers. One need only look at their own social media feeds to see how many friends, family and colleagues are keen to proclaim to the world that they’ve been immunized.

Rossos cautioned that employers should not tolerate an us-versus-them environment, in which employees who are not vaccinated, for whatever reason, begin to feel ostracized.

“To start pointing fingers at employees who aren’t vaccinated … could be a basis for a bullying and harassment complaint,” she said.

Despite high levels of immunization, some employees – those with compromised immune systems, for example – may have lingering and legitimate health concerns over returning to the office. If an employee’s complaint went to a tribunal, the employer might have a hard time making a case that the employee needed to be in the office.

“To suggest it can’t be accommodated now, after that’s been done for the past 18 months … I think that would be a pretty specious argument,” Rossos said.

On the other hand, an employee who doesn’t want to come back to office because he or she likes working in pyjamas from home could end up losing his or her job.

“Then, I think, you’d have an argument to suggest they are resigning their position,” Rossos said.