August 7, 2020 by Adam Malik
Brokerage principals shouldn’t be rigid when it comes to dealing with employees who are skeptical about returning to the office and decide to extend or take a leave, an employment lawyer advised.
A key observation management needs to make about their business — and can also stress to their clients — is that re-opening means people are returning to the office during a pandemic, not after one, explained Bill Anderson, Toronto-based partner at Blaney McMurtry, during the recent Hub International Virtual Summit. His session was entitled, Proceed with Caution: Managing Employee Relationships and Risk in the Workplace.
A new study from business advisory firm KPMG released this week found that more than half (54%) of Canadian workers are afraid to go back to work because of the risks of catching the COVID-19 virus. Almost all (94%) of respondents say COVID-19 is far from over.
Anderson noted that infectious disease emergency leave existed previously but was amended this year to deal specifically with COVID-19. In essence, the amendments recognized that leaves of absences would be created due to COVID-19 of unlimited duration, dealing with the employee or their family member being diagnosed with COVID-19 or having to self-isolated because of coming back from vacation.
When schools were closed, for example, a parent needed to stay home to take care of children. During the summer months, many daycares are either not operating or in a limited capacity. Lack of available childcare could be a reason for leave.
“Those reasons and explanations to not attend work either for essential business now, or later on down the road when we bring people back — that’s a legitimate leave and it’s a legitimate request of an employee to say, ‘I can’t return to work because of one of these reasons that are enumerated under this infectious disease emergency leave,” Anderson said.
Ontario, for example, is planning for a five-days-a-week return to school for elementary-aged children in September, though parents have the option of their child participating in online learning instead.
However, Anderson pointed out that there are other leave options that employees can use. As he is more familiar with Ontario’s laws, he noted the province has various pieces of legislation that cover sick leave, caregiver leave, critical illness leave, and emergency medical leave. They range from three days to 37 weeks of leave.
“People are entitled to take those leaves,” he said.
He predicted there will be conflicts when employers asking employees to come back to the office and the employees who are entitled to leaves will not immediately return.
“They’re going to stay off, and there’s nothing that you [the employer] can do about it because of course there are reprisal issues if you start to discipline, terminate, suspend employees because they are electing to take these leaves and enforcing their rights under the Employment Standards Act,” Anderson said.
So when an employee says they can’t return because of one of these job-protected leaves, or they’re afraid to come back because they fear compromising their health, Anderson advised that management take a “very cautious” approach.
“That issue is going to be more complicated because you, as an employer are going to ask the employee to explain why the leave is necessary. And if it is just the concern with respect to potential health problems, then we’re going to address that as an Occupational Health and Safety Act issue,” he said.
The KPMG study also found that 82% of Canadians believed their employer would make and maintain all necessary health and safety precautions. More than seven-in-ten (72%) are fine with going back to their place of work when cases are relatively low, but believe a second wave this fall and winter will shut down workplaces all over again.
Feature image by iStock.com/ilona titova