On January 14, 2021, the Government of Ontario imposed a state of emergency in response to the COVID-19 pandemic, announcing a stay-at-home order and imposing new public health measures and restrictions. In effect until February 11, 2021, the stay-at-home order requires employers to ensure that employees who can work remotely do so, unless the nature of their role requires them to attend on-site physically.
The new order lacks clarity for both employers and employees as it does not define what jobs and work are essential. Accordingly, we review the new stay-at-home order from an employment law perspective, providing best practice tips for employers.
Limitations of the current order
The new stay-at-home order mandates that anyone who can work from home must do so, but does not define the workplaces or roles that are considered essential. The language of the new order gives flexibility to an employer to determine whether the nature of the employee’s work requires their attendance at the workplace, which has caused some confusion between employers and employees. Specifically, employers are being criticized for interpreting the legislation at their own discretion and requiring some employees who previously worked from home earlier in the pandemic to attend at the workplace.
For office environments, for example, it may be difficult to justify that an employee’s physical attendance at the workplace is justified. Whereas, in a retail setting, the employee’s presence in the physical workplace is essential to carrying out the role.
In light of the new stay-at-home order and lack of guidance from the Government of Ontario, we encourage employers who are considered essential and permitted to remain open to use their best judgment and consider implementing the following measures:
- Allowing for work from home arrangements and considering whether the nature of the employee’s work requires them to be on-site at the workplace, or whether it can be carried out remotely;
- Updating and implementing COVID-19 specific health and safety protocols and policies in workplaces where employees are required to attend the physical workplace; and
- Staying up-to-date with the legislation and complying with all public health orders.
Justifying mandatory in-person attendance
Employers who require employees to attend the workplace may be able to defend their decision based on the lack of equipment and/or infrastructure, as well as the lack of financial inability to invest in remote work for employees. For example, some employers may not have the hardware, such as laptops, to provide employees or the ability for employees to connect to the employers’ system from home.
Specifically, the new stay-at-home order does not address whether an employer is required to invest in equipment and infrastructure in order to permit employees to carry out work from home arrangements.
For best practice, employers are encouraged to review the new stay-at-home order to assess how it impacts the operation of their business. Employers who are unsure of their obligations under the new stay-at-home order are encouraged to reach out to experienced employment counsel to discuss the changes in legislation and develop a viable policy for remote work arrangements as well as a COVID-19 workplace safety plan for employees that are still required to attend the office under the current order.
Employee refusal to attend the physical workplace
Employees who are required to attend the workplace and who believe that the nature of their job permits them to stay home can contact the Ministry of Labour to file a health and safety complaint under the Occupational Health and Safety Act (“OHSA”). In Ontario, the OHSA protects employees’ rights with respect to refusing unsafe work.
Employees who assert their rights under the OHSA have the right to be free from reprisal in the pursuit of these rights. An employer cannot terminate, threaten to fire, suspend or impose any other penalty on an employee for enforcing their rights, as outlined in the OHSA. For example, where an employee is dismissed for filing a health and safety complaint related to the stay-at-home order, the employee may have a claim for wrongful dismissal and the reprisal itself may attract additional damages.
We encourage employers to remain flexible and reasonable in managing employees, including by allowing for remote work where it is operationally feasible, and to seek legal advice to ensure compliance with the new laws.
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