With the scrapping of most COVID-19 rules in Ontario, including removing the mandatory five-day isolation rule for those that test positive, many employers are returning to pre-pandemic normal and requiring employees to attend workplaces in person. 

While some employees have rejoiced at the opportunity to return to the office and be reunited with colleagues, others are less happy. The ability to work from home or remotely has offered some employees greater flexibility, whether for childcare or just avoiding the morning commute. Others may fear returning to the workplace, catching COVID-19, and passing it on to loved ones.

This article looks at some considerations for employers and employees when it comes to returning to the workplace as we transition toward the post-pandemic era. 

The specific circumstances of the workplace and individual employees need to be considered, so we suggest discussing your issue with an experienced employment lawyer. For example, while some employers cannot offer remote work (such as retailers), the situation may be different for other employers that successfully moved to remote or hybrid work during the pandemic.

Is returning to the workplace consistent with the duty to ensure the health and safety of employees?

Under the Occupational Health and Safety Act (OHSA), employers have a duty to keep employees safe, including protecting workers from hazards from infectious diseases. In particular, employers are required to take every reasonable precaution in the circumstances to protect a worker.

The OHSA allows employees to refuse work if they have reason to believe that the condition of the workplace is likely to endanger them. Workers are able to complain to the Ministry of Labour, Training and Skills Development. 

While it isn’t clear whether attending a workplace during the COVID-19 pandemic constitutes an unsafe condition, this is likely to depend on the circumstances of individual workplaces and employers need to comply with public health guidelines and carefully consider employee safety when returning to the workplace.

What does the employment contract say?

As always, the terms of the employment contract are important. For example, if the contract permits an employee to work remotely, they will have grounds to resist an attempt by the employer to require them to work in person from the workplace.

Is accommodation required?

Some employees may not be able to return to the workplace due to medical issues. Under the Ontario Human Rights Code (Code), employers cannot discriminate against employees on a range of enumerated grounds, including disability and family status.

For example, suppose the employee suffers from a physical or mental disability. In that case, the employer must accommodate the employee’s needs by undertaking all reasonable efforts until undue hardship. This may require the employer to, for example, change the employee’s duties, tools or schedule to enable them to be able to perform their role effectively. We have written more about the duty to accommodate here. 

In the context of returning to the workplace, accommodation options might include allowing the employee to work from home, facilitating the isolation of the employee at the workplace, or maintaining vaccination policies or mask-wearing requirements in the workplace.

Is the employee otherwise entitled to leave?

There are a number of circumstances in which employees are entitled to statutory leave. For example, under the Employment Standards Act (ESA), employees may be entitled to leave, including:

• Infectious disease emergency leave – Employees are eligible for up to three days of paid infectious disease emergency leave if they will not be performing the duties of their position because, for example, they are under medical supervision having contracted COVID-19, they are experiencing a side effect from COVID-19 vaccination, or they are providing care or support to a specified person. The paid leave period applies until March 31, 2023. Employees have the right to take unpaid leave for as long as the ESA conditions are met. The leave is job-protected, meaning employers are unable to fire, threaten or penalize an employee if they are taking infectious disease emergency leave.
• Sick leave – If employed for at least two consecutive weeks, employees are entitled to a leave of absence without pay because of a personal illness, injury or medical emergency, for three days each calendar year.
• Family responsibility leave – If employed for at least two consecutive weeks, employees are entitled to a leave of absence without pay because of an illness, injury, medical emergency, or urgent matter concerning a specified person for three days each calendar year.

Has the employee abandoned their position?

Suppose none of the above situations apply and there are no Code protected reasons for accommodation. In that case, an employee that refuses to return to the workplace may have abandoned their position. 

For an employee to abandon their position, they need to clearly and unequivocally indicate an intention to abandon their employment, as viewed from the perspective of a reasonable person. Abandonment has similar effects to resignation, with the employee not entitled to reasonable notice (or pay in lieu of notice) or severance pay.

However, in the current competitive labour market and to retain staff, employers may wish to extend flexibility to employees that can perform their roles remotely, beyond the situations strictly required by law.

Contact Haynes Law Firm in Toronto for Guidance on Accommodating Employees

Haynes Law Firm can help employers and employees deal with all issues relating to returning to the workplace. For example, Paulette Haynes helps employers explore all reasonable options to accommodate employees with a protected Code ground, limiting their exposure to potential claims. We also stand by employees who cannot return to their workplace, ensuring they are aware of their options. To discuss how the Haynes Law Firm can help you, please contact us online or call us at 416.593.2731.