Jordan: For a growing number of people across Canada, it’s time to go back to work, or at least it will be really soon. As an indicator of how we’re coping with the first wave of COVID-19, it’s a positive sign. But for employees everywhere being called back, from small business retail stores to giant chains or office buildings or services like pet grooming and house cleaning, going back to work is probably going to be scary. Is my workplace safe? What’s my employer required to do to make it safe? What do I do if I don’t think it is? What if my daycare is still closed and I don’t have childcare? What if I’ve been temporarily laid off? Do I get my job back for sure? Am I allowed to keep working from home or can my company force me back to the office? Those are a whole bunch of questions and they’re just the tip of the iceberg. Employment law is grappling with an entirely new scenario in real time and in some cases at warp speed. So what are your rights with regard to returning to work or finding yourself out of a job during a pandemic. What kind of help is available to you? Today we have a primer from a lawyer who was in the middle of all this in Ontario right now, and she has advice that is applicable no matter where in Canada you might be. I’m Jordan Heath Rawlings, this is The Big Story. Lindsay Scott is an employment lawyer based in Toronto. She’s a partner at Paliare Roland. Hey, Lindsey.
Lindsay: Hi Jordan.
Jordan: We wanted to talk to you today because almost every conversation I have with anyone with a job at this point involves what’s going to happen when we go back to work, and I was hoping you could just answer some of the questions we’ve been hearing.
Lindsay: Yes, I’m happy to.
Jordan: So first of all, I guess you’ve probably been getting some of these questions too. So what are the common ones or the maybe the most common one that you get?
Lindsay: Yes. So I mean, for my clients who are fortunate enough to still be employed, far and away without exception, the number one question that I’ve been asked is, do I have to go back to the physical workplace? And of course the answer varies depending on your individual circumstances, but that’s the top question for sure.
Jordan: What kind of options do people who ask that question have if they’re worried about going back to their workspace? You mentioned it varied. How does it vary and what kinds of questions should they be putting to their employer I guess?
Lindsay: I guess it depends on why you’re worried. So if you’re worried because of a specific concern with your workplace. So, for instance, you’re aware of the fact that the employer is not taking the public health recommendations seriously and hasn’t, for instance, modified the workplace, isn’t staggering schedules, isn’t offering any additional training or policies on how to protect employees from COVID-19 that’s, that’s a real problem. And so if that’s a specific concern then there are absolutely options for you in terms of refusing to perform work and to go back to the workplace. If you’re somebody that needs accommodation either for individual health reasons or for your family situation, that could be another reason why you might be able to make some adjustments to your usual work routine.
Jordan: If my employer is telling me to come back in, but I feel that I can continue to do my job from home and let’s just say for a moment, there are no explicit safety concerns. I just, you know, it’s, it’s an incredibly frightening time and I’m scared and I want to wait a few weeks and see if things spike or not. What can I do?
Lindsay: Yeah, it’s a great question. So in Ontario and perhaps other provinces, if you can do your job from home, your employer should allow that. So most of us here in Ontario will remember the government regulation closing various non essential businesses. So in that regulation, there’s actually a provision that says that any business that remains open shall operate, so it’s mandatory, shall operate the business in compliance with the advice, recommendations and instructions of public health officials. So at this time, the public health officials are advising and recommending that employees work remotely where feasible, in order to limit the spread of Covid 19. So for now, employers are obligated to follow that advice.
Jordan: Is there any sort of general level of safety that an employer is expected to provide by law? I mean, you mentioned a couple of examples, but what about just sort of in general terms in the workplace? Like what’s that judged on?
Lindsay: Yeah. Well employers have a duty to protect the health and safety of their workers. That was true before the pandemic, and all the more so now. So in the context of the pandemic, they’re required to implement measures to ensure that their workers aren’t exposed to Covid 19 while they’re working. And it’s a really, really big deal if they fail. Right? Obviously for moral reasons, but also for legal reasons. They could face fines and penalties and in serious cases, even criminal prosecutions under occupational health and safety legislation. So it’s a high bar they have to meet, and there are a number of ways that they can do that.
Jordan: I’m thinking of some examples that have come up just in conversation with a couple of people. And I’m sure that there’d be many offices especially, that this would apply to. Are they expected to create six feet of space between me and my coworkers? Or are they expected to give me a mask and gloves to wear in the office if I don’t feel safe without them?
Lindsay: Yeah. So the provincial health authorities are telling employers that they need to do everything they can to make the workplace safe. And so yes, that’s going to mean what’s sometimes called engineering controls, which is a fancy way of saying, addressing the physical structure of the workplace. So if that means erecting barriers, we see plexiglass in some modified workplaces. It could mean designating hallways as one way, so you don’t have employees passing each other. It could mean, creating walls or staggering cubicles for instance, so that yes, you can facilitate that physical space requirement. So there’s the physical workplace, and then there’s also all of the policies and procedures that need to be implemented, whether it’s staggering employee schedules so that we don’t have full capacity in an office at one time. There’s really a whole host of measures that employers can and should be doing. As far as the PPE component, the personal protective equipment. The provinces are telling us that really PPE should only be used when employers have done everything else that they can do to make the workplace safe. So some of the other measures that I just spoke about, when an employer can’t totally eliminate a hazard, then yes, they can consider the use of PPE, like masks and gloves and eye protection. But employers can’t just hand those things out and assume that they have discharged their health and safety obligation. If the employer wants to require its employees to wear PPE, then they need to first of all supply it, and then importantly, if they’re going to provide masks to employees, they should provide a policy and training on how to properly use the masks and other PPE as well as information about its limitations. And look, if somebody wants to wear PPE in the workplace, even though strictly speaking, it may not be required, then of course that should be allowed.
Jordan: That was going to be my next question, is what if they want to bring their own and they’re in a front facing job? And I think we’ve heard about this in some places in the States already as they’ve been reopening where management is telling them, ‘don’t wear that’. It sends the wrong message that we’re not clean.
Lindsay: Yes. No, that’s a problem. And if an employer does that, they’re really attracting significant liability, right? Because if that person works and become sick, you can imagine where that argument could lead. So no, employers should be supporting whatever measures employees want to take within reason to protect themselves in the workplace, and there’s no question that PPE could be a part of that.
Jordan: My next question revolves around something you touched on a little bit in terms of family situation. We’re seeing some places reopen now in Ontario, but daycares and schools are still closed. So what if my job tells me, okay, everybody back to work on Tuesday and Wednesday, but my daycare is closed.
Lindsay: The short answer to your question is that no, an employer can’t force you back to work if you need to be home to care for your children while the schools are closed. We know that for instance, in Ontario, the Ontario Human Rights Code protects family status in the workplace. And so here, family status means being in a parent or child relationship, which of course includes non biological parents and those who are in a parent like role. And so essentially that means if you have particular needs that arise from your family status, like needing to care for your kids, then you can seek accommodation from your employer and they must provide it up to the point of undue hardship. So one thing I always try to emphasize is that employers can’t expect a perfect accommodation. It really is meant to be a negotiation or a compromise or a two way street between the employee and the employer. And ideally, you sort of find a balance between, both the employees and the employer’s interests. And so it’s really worth asking for what you want, and continuing the dialogue with your employer in an ongoing way. I’ve encountered a number of examples of accommodation during the pandemic. Obviously pretty common as altered work schedules, so some daytime work and then maybe some more after bedtime, for instance. Remote work, using vacation and sick or lieu days to lighten the burden, altered roles or duties. You really can get creative in trying to fashion an accommodation that meets the employee’s needs while still addressing the employer’s legitimate business requirements. And I should say too, accommodations can change over time. So for now, daycares and schools are closed, and so parents have very few options. But if and when they reopen, and for instance, let’s say they’re staggering children so that we only have daycare available for half the day or every other day, for instance. Maybe your required accommodation changes then too. Maybe you can do a little bit more than you were doing. So it’s really an ongoing, evolving conversation between the employee and the employer.
Jordan: Now, because we’re getting close to things that kind of touch on termination, can you kind of unpack what exactly undue hardship is, if it’s not going to take us down like a completely wonky legal road. Is there an easy way to explain it?
Lindsay: Yeah, I can explain undue hardship briefly. It’s not necessarily connected to termination though. So undue hardship is, in the human rights context, as I just said, employers have an obligation to accommodate protected grounds like family status up to the point of undue hardship, which really depends on the business and the accommodation that’s being sought. So whether something constitutes undue hardship is a legal test that the employer has to meet. So they need to prove that the accommodation being sought is too expensive, or that it creates really serious health and safety hazards in order to be excused from providing that.
Jordan: So, for instance if I’m a small business that’s only open nine to five and my employee can’t come back because he or she just doesn’t have childcare, but I can’t alter the working hours cause it’s a front facing business, it’s only open certain hours. Would that be where it butts up against undue hardship?
Lindsay: Well, I’m not sure if it would necessarily meet the test for undue hardship. I guess it would have to depend on the cost. So they’d have to sort of show that it’s unduly expensive. And so it would really depend on the nature of the business. That may be a situation where if it’s simply not feasible, then the employee could have the opportunity to take an unpaid leave for the time being. And certainly their job would be protected. And if they needed to come back once school’s resume, then they would have the opportunity to do that. Undue hardship, I’m thinking more something like… Let’s go with your example of a small business office environment. Maybe you have an immunocompromised employee who wants to return to the workplace, but you know, is insisting that her cubicle be converted to a separate office with individual ventilation and new windows to the outside and all of that. So you’re a small business. That type of renovation could cause tens of thousands of dollars or more. So that might be just truly impossible for a small business to afford. So something like that, that might be the perfect accommodation, but it can’t be met without undue hardship. So you need to sort of negotiate another option there.
Jordan: One more question about people who do still have jobs before we turn to layoffs. Cause I know you get a lot of questions about those as well. What if my concern about returning to work is not about the workplace itself, but about the way I get there? And I’m thinking here, for instance, people who don’t have cars, and live a fair distance from their office, and their only option would be to take a crowded subway at peak hours, which they’re uncomfortable with.
Lindsay: Yes. Look, I live and work in Toronto, and so I can relate. I rely on mass transit to take the streetcar downtown every day. So, I think everyone is going to have some measure of anxiety returning to a physical workplace, but especially if they’ve got to take mass transit. So unfortunately, your employer, as we’ve said, has a responsibility to keep the workplace safe, but that responsibility doesn’t go beyond the place of work to things like your commute. So strictly speaking, no, you can’t refuse to go to work because you’re concerned about transit. That said, if you have a preexisting condition or a specific vulnerability to COVID-19, you could always try to seek accommodation from your employer. So maybe it’s a modified schedule where you can avoid commuting in rush hour, for instance. So there are fewer people on on transit, or maybe offer to work longer days so that you can go in fewer days of the week. Again, it’s just an area that you would need to negotiate with your employer.
Jordan: In terms of people who have lost their jobs since the pandemic began, what are the most common questions that you get from them?
Lindsay: Well, I get a lot of questions about layoffs. You know, what does it mean? What am I entitled to? Is this a termination? Have I been fired? So I am getting a lot of questions about that.
Jordan: And what is the difference between a termination and a layoff?
Lindsay: Sure. So provinces define temporary layoffs a little bit differently across the country, but in general, broadly speaking, a temporary layoff is when your employer tells you that you’re not required at work and that you’re not going to be paid, and both of which are on a temporary basis. So you could sort of think of it as your employment being put on pause, essentially. Although usually health benefits are continued throughout. So while your employment’s on pause, while you’re on temporary layoff, you can apply for EI, employment insurance, if you’re not receiving income. That’s different from what we call a termination of employment, which is permanent. So this is when you’ve actually been let go from your job, you’re not coming back, and so usually you have a right to notice, and other entitlements under the provincial legislation. Sometimes you have entitlements under your employment contract, and sometimes under the common law.
Jordan: What about pay cuts? Cause we’ve seen a lot of that going around. What are your rights when your employer sends out a notice saying we’re proposing a pay cut of X, what can you do? Do you have to accept it or walk? What can you tell us about that?
Lindsay: Yeah. So that’s a tricky situation. I mean, generally speaking, of course an employer can’t just announce to you that it’s reducing your pay by whatever percentage. These are different times, and so they’re still not allowed to do it, they need to seek your agreement. And so you can agree, and if you do, then that’s that. If you don’t agree, then technically you are entitled to treat it as a termination, often referred to as a constructive dismissal. And as you said, you could walk, you could try to find another job, and you can speak with a lawyer about, trying to collect any lost pay or damages in connection with that. That’s obviously a gamble right now. I don’t want to be too encouraging of that route because it’s quite risky for employees. So it may be that the best option would be to accept the change, but with conditions. So you may want to say to your employer, ‘yes I’m prepared to do this, but only for a short period of time’, and put a cap on it. I think you should say that ‘I’m prepared to do it, but only in later the COVID-19 situation’. And so the business is currently struggling, once the situation is different then I expect to be put back to full pay. And I think you should also say importantly, that you’re not waiving your right down the road to claim back any of the pay that you’ve lost. And so you can decide at a later time and speak with a lawyer about that. Whether it makes sense to pursue it. This, like many other areas of the world right now, is really up in the air. Courts haven’t determined these issues yet. And so we don’t know if courts will agree with an employee and say, ‘yes, you’re entitled to those back wages’. Or if courts will say, ‘you know what? Employers are in really difficult circumstances right now’. If the business was closed, for instance, by government order, they may say that this was just a natural consequence of the pandemic and that employee’s aren’t entitled to that backpay. So we just don’t know. But you’re safer reserving your rights. Now and looking at that later on.
Jordan: You just touched on the big picture question I was going to ask you, which is, what is it like trying to figure out these situations kind of on the fly? Because I imagine there must be tons of them that nobody’s really had to dig into what applies before? Like the PPE for instance that would have never come up and it hasn’t been tested in court. So how do you approach that?
: Yeah, from an intellectual standpoint, it’s been fascinating. These are issues that we haven’t faced before, and the situation is changing so quickly. Truly the law today, could be completely different tomorrow. So that’s been a really interesting aspect of it. Candidly, it’s also been really stressful and sad, because so many people are in really scary situations and it’s not clear just when things will improve. I guess I’m hopeful that with my help, both employers and employees feel empowered to make their work places as safe as possible. That’s probably the best that I can hope for in my line of work.
Jordan: Well, on that note, what do I do? What are the first steps? You’ve given us some great advice in terms of what is and isn’t permitted, but what are the first steps? If I’m listening to this interview and I think, ‘you know what? My employer’s not taking my safety seriously, and I’m not sure that they will.’ What do I do?
Lindsay: Well, of course, I’m a lawyer, so I’m going to suggest that you get legal advice.
Jordan: Get a lawyer.
Lindsay: And not just because that’s my job. This is changing constantly. And so it’s important that you get the best and most accurate information. It’s also important because every situation is going to be different, right?Employees have individual health and family responsibilities. Workplaces are all different depending on the industry that you’re in, depending on the province you’re in. So get advice. But you know, if you’re listening to this podcast and you’re thinking, ‘my employer is not taking the pandemic seriously’, then of course you don’t have to put yourself in a dangerous situation. And so you do have a right to refuse unsafe work, if you think that it’s going to endanger you. It’s a little bit more restricted for certain frontline workers. They’re generally not entitled to refuse unsafe work that is a normal condition of their employment or when their refusal to work would endanger the life of somebody else. So a little bit different for frontline workers, but for the rest of us, if you think that your workplace is unsafe, there’s a process to be followed. It varies a bit province to province, but generally you need to start by telling your employer about the hazard, that you feel it’s unsafe and that you’re refusing work on that basis. At that point, the employer has to investigate the situation to see if the refusal is justified and advise you of its decision. So if it corrects the issue, you go back to work. If not, you maintain your refusal and either you or the employer contacts whatever the provincial body is that deals with health and safety. So in Ontario, that’s the Ministry of Labor. And at that point, the ministry would investigate and make any compliance orders if necessary. Importantly, I think a lot of people would be really nervous actually, about refusing to work in this type of unstable job market, just for fear that it might lead to negative consequences. And so important to know that by law, you cannot be subject to reprisals for exercising your right to refuse unsafe work. Which basically means no disciplinary actions, no warnings, or even terminations for exercising your rights in good faith, even if at the end of the day the ministry disagrees with you.
Jordan: And just finally, because we mentioned getting professional help. I don’t mean to cast aspersions on your profession, but when I say get a lawyer, most people here like the cash register going off in their head. So is there any way that people can get the first steps of legal advice or even just some guidance in a way that… you know, people don’t have a lot of money right now, they can’t afford to hire a lawyer.
Lindsay: Absolutely. I completely understand. And so first of all, it’s not quite legal advice, but if you have to return to a physical workplace, definitely educate yourself. Go online. There are plenty of official recommendations that are being released by each of the provinces. So in Ontario, the ministry of health has provided detailed guidance for employers and the ministry of labor and the provincial health and safety associations have released really detailed sector specific guidelines, including for your construction and restaurant and manufacturing industries. So read those. And before you return, ask to know what changes your employer will be making and suggest other changes that you think may be appropriate. So read up on that. In terms of advice, if you are struggling to find affordable representation, there may be pro bono services available locally. So I know in Ontario we have pro bono Ontario, which is an absolutely terrific organization, and they run an employment law hotline that you can call. I volunteer at the hotline along with my colleagues at Paliare, Roland and firms all across the province. So it’s a really terrific resource and you can call them for free.
Jordan: Perfect. Well, thank you so much for offering this resource to us as people start to go back to work, Lindsay.
Lindsay: It’s my pleasure, Jordan, thank you.
Jordan: Lindsey Scott of Paliare Roland. That was the big story. If you would like more head to thebigstorypodcast.ca. We’ve got a lot of explainers about everything that’s changing during this situation. You can also find us and ask questions. What do you need explained? On Twitter @thebigstoryFPN, or you can write to us, send us a voice memo or send us a video the email address is: firstname.lastname@example.org. As you may know, we are a podcast, so we are in every single podcast player because that’s how this works. If you are in one that lets you rate and review, please do. We read them all. We really appreciate them. Hope everybody had a great and safe long weekend. Thanks for listening. I’m Jordan Heath Rawlings. We’ll talk tomorrow.
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