With Canadians turning their focus to restarting the economy amid the pandemic, businesses and employees may soon find themselves navigating rough waters as they balance safety with staying afloat.
Business in Vancouver reached out to Clark Wilson LLP employment lawyer Andrea Raso to discuss the top legal concerns for workers and employers moving forward as restrictions loosen.
This interview has been edited and condensed.
BIV: Starbucks Canada, they just announced that when employees start to return en masse they’re going to be wearing masks and they’re going to be undergoing temperature checks as well. I’m wondering, can employers do this? Can employees push back?
Raso: There is the balancing of the employees’ privacy rights with the employer’s obligation of creating a safe work environment. So the employer has those obligations under Occupational Health and Safety Regulations. Under law, they are required to create a safe workplace.
This is Starbucks’ way of trying to protect safety overall. Now whether or not it’s an invasion of privacy, everything is based on a reasonableness standard. So is it reasonable to require employees to wear masks or require them to have temperature checks? And given that we’re not in a normal situation — we’re in a fairly unique situation — it may very well be that that is the safest way to operate.
BIV: What if I’m an employer and I’m taking everyone’s temperature? What if I’m documenting this day to day, I’m keeping this data? Does that present any problems down the road if you’re holding onto any personal data like this?
Raso: An employer only has a right to retain persona information for as long as it’s necessary, and then they have to dispose of it. So if after a couple of days, is it really necessary to keep that data given that there hasn’t been any change of temperature?
It probably is not reasonable for that employer to retain that and they would probably have to dispose of that in order to be compliant with privacy legislation.
BIV: The province says that they feel like they need to have a discussion with industry right now to discuss some of these issues with sick leave. What are the hang-ups right now with the obligations employers have to meet vs. obligations employees have to meet as well if they are indeed feeling ill?
Raso: Many employers have sick-leave policies that employees can access. If they don’t, there is a new leave of absence under the Employment Standards Act of British Columbia, which was enacted a couple of weeks ago and it is called the COVID-19 Leave of Absence.
And it allows an employee to go off for an indeterminate amount of time if they meet certain criteria such as they are suffering from symptoms, they have childcare responsibilities because schools are closed.
So anything that is COVID-19-related, it gives them the right to go off on a leave, they can collect the CERB [Canadian Emergency Response Benefit] and it is a job-protected leave.
BIV: What is I don’t feel comfortable [returning to work]? What recourse do I perhaps have as a worker?
Raso: Those individuals who feel uncomfortable, they don’t have any sort of protection at law. The employer can say, “Well, you don’t want to come back to work? That’s fine.” They can terminate [the employee], though I think very few employers in that situation would terminate but that is their right.
But more likely than not, they’ll say to the employee, “OK, but you’ll have to remain on unpaid leave.” Unfortunately, the employee in that situation won’t get any benefits.
