Returning to work during Covid-19: What are an employer’s obligations?

As some workplaces chart their course for reopening, companies are making sure their workplaces are compliant with safety regulations and guidelines. Beyond following the letter of the law, employers will also need to assuage the fears and concerns of their workforce to create trust and buy-in from employees. In the article below, Lisa Cabel, national employment and labour leader for KPMG Law, and Kaley Dodds, a senior associate in employment and labour law at KPMG Law, examine employer obligations in the pandemic context. 

A recent KPMG poll found that more than half (54%) of Canadians are afraid to return to the workplace, given the continuing threat posed by the coronavirus. More than three-quarters of Canadians polled were concerned their colleagues might come to work sick or be asymptomatic. Nearly six in 10 (57%) were worried about sharing such common spaces as meeting or lunchrooms. Moreover, six in 10 said they will refuse to go back if they feel it’s not safe enough.

What are an employer’s obligations to employees, and must they heed these anxieties?

What’s safe enough from an employee’s perspective may not align with an employer’s obligations under occupational health and safety legislation or human rights law. At the same time, many employees believe that they are entitled to avoid the office due to omnipresent Covid-19 risks – but this is not necessarily the case.

Occupational health and safety legislation does not specify what an employer must do to keep employees healthy and safe amid the pandemic. Instead, the legislation more generally obligates employers to take reasonable steps to avoid and address workplace hazards and provide a safe and healthy work environment. 

What amounts to reasonable steps will vary by workplace, with some environments and industries demanding more extensive health and safety measures than others. Whether it’s physical distancing or requirements to wear a mask or gloves in the workplace, there is no one-size-fits-all solution. External factors, like increases or decreases in Covid-19 cases, can also inform the extent of an employer’s obligations. However, an employer can satisfy health and safety laws by enforcing government Covid-19 guidelines in the workplace. Masks, social distancing and hygiene, as well as consistent employee health checks, help ensure that employers’ legislated requirements are met. 

So long as the employer has complied with health and safety obligations, it can request that employees return to the office.  While occupational health and safety legislation does include the right for an employee to refuse unsafe work (and commence the formal work refusal process set out in occupational health and safety legislation), this right is not engaged simply on account of employees’ Covid-19 fears. 

When an employer’s health and safety obligations are met, the employee’s right to refuse to return to work is limited. Unless the refusal is due to grounds that are protected by human rights legislation and that trigger an employer’s duty to accommodate (such as a medical condition that exacerbates Covid-19 risks or certain familial obligations), the employee must return to work on request. If the employee does not do so, discipline may be appropriate.

It is therefore important that employers take reasonable steps to ensure a safe and healthy workplace and recognize that these steps may evolve along with the pandemic. These measures inform whether an employee must – or mustn’t – return to the office when called.

It’s equally important that health and safety measures be communicated to employees, to help ease employee anxieties and help ensure they feel comfortable at work. At the same, employers should document the health and safety measures taken, should their health and safety measures be legally challenged. Occupational health and safety claims can be rebutted if an employer can prove they were diligent in their health and safety endeavors.  

Sixty percent of KPMG survey respondents also said they would download an app from their employer that lets them know how busy office areas are. KPMG recently launched a customizable KPMG Workplace Safeguarding App that helps employers instantly connect with their workforce, notifying them of urgent news, required actions, office open or closed status, and the level of health risk for that office.  

In the New Normal of our workplaces, it’s clear that reasonable health and safety measures that address potential hazards – and the ability to evolve and innovate as circumstances change – will benefit employees and employers alike.