Toronto and Peel Region moved to Phase 2 of Ontario’s reopening plan as of today, June 24, 2020. The reopening will impact employees, many may face many new challenges as a result of the COVID-19 pandemic. Read on to learn about some of the potential employment issues that may accompany Stage 2 and how to deal with them.
The increased list of businesses that will be able to open in Stage 2 include:
- Person case services, like hairdressers, as long as the appropriate Personal Protective Equipment is worn and services do not tend to a customer’s face;
- Restaurants and bars with outdoor space and room for social distancing;
- Water recreational activities, including public pools; and
- Outdoor recreational activities that operate ‘low-contact’ attractions.
Read more about the full list of businesses that are now able to open on the Ontario.ca website.
General Tips for Employees Returning to Work
- Maintain open and clear lines of communication with your employer about what accommodations you may require when returning to work. Your employer cannot accommodate you if they don’t know what you need, so try to proactively resolve concerns before they become issues.
- If you fall ill with COVID-19, look into your options regarding compensation. It was recently clarified that claims of illness caused by COVID-19 could potentially be covered by WSIB. Such claims are to be determined on a case-by-case basis. Similarly, employees should speak with their insurance providers to determine whether they might be eligible to use short-term and long-term disability for COVID-19 related illnesses or anxiety.
- Employees who do not want to return to work may consider taking an unpaid job-protected COVID-19 leave. If your employer is refusing to accommodate your return to work; is insisting on you returning to work with a pay cut or other significant change to your previous working conditions; punishes or reprises against you for requesting accommodation; or otherwise hampers your ability to effectively and quickly return to work, you should consult an employment lawyer.
The Five Main Concerns for Employees
The reopening has broad and far-reaching implications for employees across the province, but might be particularly difficult in more densely populated urban areas like Toronto where physical distancing may be more challenging. We outline general tips regarding the five main concerns for employees:
- Child care issues;
- Concerns about public transportation;
- Privacy concerns regarding inquires pertaining to outside of work activities;
- Concerns about how safety protocols are followed at the workplace;
- Covid-19 and underlying health condition of the employee or their family members.
What if I can’t find childcare?
Shortly after Stage 2 was announced it was also announced that childcare centres would be opening with restrictions including the number of children which can be in a centre’s care at one time. On June 23, centres will be open with limited availability.
As a result of these restrictions, many families may still have trouble securing dependable and continuous childcare. Although it would be best practice for employers to both introduce specific policies that streamline how employees request an accommodation if they will not have consistent access to childcare and introduce a framework for what accommodations can be provided, some employers may have difficulties adapting to this new reality.
Under the Ontario Human Rights Code, workers have a right to reasonable accommodation on the basis of family status. Your employer must consider these rights when considering how to best facilitate employees’ returns to work.
Employees can consider requesting accommodations to allow them to meet their childcare obligations. By way of example, if you have been able to work from home while your business remained closed, you can request to continue to work from home. This would be a reasonable request that your employer should allow unless doing so would cause the company undue hardship. Other forms of accommodation may include flexible working hours or a reduction in days where the employee is required to be in office.
Importantly, though, the Human Rights Code only protects workers who require accommodation on the basis of family status (or another protected Code ground). Employees are not entitled to an accommodation if they simply prefer to continue working for home; they have an obligation to attempt to secure childcare. You should, therefore, keep written records of the childcare facilities you have approached and update your employer routinely on your efforts to obtain childcare.
What if I’m worried about getting sick while taking public transportation to work?
Employees, particularly in more urban areas of Ontario, may have to use public transportation to get to work. This may lead to fears of contracting COVID-19 while commuting to work.
How an employee gets to work is that employee’s responsibility; your employer’s health and safety obligations do not generally extend to your daily commute. Given the extraordinary circumstances, however, employers may be obligated to accommodate workers who fear taking public transportation for health-related reasons. Accommodations should include allowing workers to continue to work from home, limiting the number of days employees have to be in the office each week, staggering start times to avoid rush hours on packed trains, or contributing to employees’ private transportation expenses such as gas bills.
For workers downtown, the city of Toronto just rapidly expanded its cycling network to accommodate workers who may be unwilling to take public transportation during the pandemic. They recently installed 25 kilometers of new bike lanes, including a new bike lane down University Avenue from Bloor Street down to Queen Street.
Can my employer ask about my activities outside of work?
As employees are being asked to return to work, employers may have a new reason to inquire into employees’ private lives to ensure the safety of other workers. As a result, your employer may begin canvassing what employees are doing in their off-hours in order to ensure that they are meeting the needs of their occupational health and safety obligations.
That said, employers will need to exercise caution and ensure that questions are appropriate and tied to a real occupational health concern or uncovering a potential occupational health and safety threat. Such measures should be applied consistently across all employees and not based on underlying discriminatory assumptions.
It is reasonable for your employer to make inquiries to ensure that workers who may have interactions with individuals who had been exposed to COVID-19 are kept safe. Your employer may require you to work remotely based on your weekend activities. If this is the case, particularly if it is without a real concern that you may test positive for COVID-19 or have been directly exposed to someone with COVID-19, you should be paid for your time at home.
What if my employer is not taking precautions against COVID-19?
Are you wondering if you have to comply with your employer’s health and safety measures? Employees are under an obligation, as always, to obey their employers, with very narrow exceptions circumstances. Your views on what precautions — such as social distancing, face coverings, or other health and safety measures — are required to be taken by your employer may differ from that which is being implemented. Despite that, you should comply with any reasonable requests of your employer, including continuing to work on a modified work-from-home routine and wearing personal protective equipment. Failing to do so raises issues of insubordination and disobedience, both of which can lead to discipline.
On the flip side, employees have a right to refuse unsafe work. If your employer is not instituting and enforcing reasonable health and safety measures, this may be a breach of the Ontario Health and Safety Act.
What if I have underlying health conditions or vulnerable family members and do not want to return to work because of these circumstances?
The Ontario Human Rights Code requires that employers accommodate workers’ reasonable needs for accommodation on the basis of several protected grounds, including disability and family status. If you have a medical condition or family obligation that requires you to take particular precautions when returning to work, you should request accommodations from your employer. This might include being provided with additional personal protective equipment and continuing to work remotely, where possible. Other examples of potential examples include requesting to continue to work from home, flexible working hours that allow you to work when other employees are not in the office, or a reduction in days where the employee is required to be in office.
Monkhouse Law is an employment law firm in Toronto and we are ready to help you prepare to return to work safely. If you have concerns about your workplace or do not feel your requests for fair workplace accommodations are being met, we offer a free 30-minute consultation.
Call us for a FREE 30 minute phone consultation at 416-907-9249 or submit a callback request
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