More than two years after the COVID-19 pandemic first hit Canada, we are in a different place, in that the majority of working Canadians are now vaccinated, provincial mandates have been lifted, and many people have begun a return to a pre-pandemic life. While many employees never left the workplace, many more have been working remotely throughout the pandemic and are now facing either a full return to the workplace or some sort of hybrid work. As such, employers need to consider whether or not accommodation may be required for employees who cannot return or do not want to return. This insight, which focuses on Ontario workplaces, will explain the different factors to be considered by employers who are moving in the direction of full or partial returns to the workplace.
General considerations for return to the workplace
Before looking at the reasons why employees may not want to or may be unable to return to the workplace and whether accommodation may be required, employers should first consider one fundamental question: “Do employees actually need to return to the workplace?” The guiding principles in determining this issue will be: (i) the employer’s continuing obligations to ensure the health and safety of employees under the Occupational Health and Safety Act (Ontario) (OHSA); and (ii) the nature of the workplace. An employer’s obligation is to protect their employees in the best way possible. That may include a consideration of continued vaccination requirements, continued masking, improved ventilation, continued remote work, and so on.
For some workplaces, it will be easy to determine next steps. For example, a retail or food services workplace is almost certainly not going to be able to permit remote work. On the other hand, a company that was able to work remotely throughout the pandemic may be able to continue to be flexible with employees when it comes to remote work, even if accommodation is not legally required. In addition, there are the “soft considerations” that employers may want to evaluate if they want employees to return to the workplace but don’t necessarily need them to, including teambuilding, mentoring, training, and so on.
Common law considerations
Once the decision has been made that employees must or should return to the workplace, one needs todetermine how best to work through questions of whether accommodation is necessary. It’s useful to start by looking at the three primary reasons that employees may not want to or may be unable to return to the workplace. This will create the framework for discussion going forward:
- Employees who cannot return to the workplace due to personal medical issues;
- Employees who cannot return to the workplace due to family medical issues; and
- Employees who do not want to return to the workplace.
It is also helpful to further break down the last category as follows:
- Employees who are scared to return to the workplace;
- Employees who prefer to work remotely from home; and
- Employees who do not want to return as the workplace continues to have mandatory vaccination policies in place.
Employees who cannot return to the workplace due to personal medical issues
For employees who cannot return to the workplace due to personal medical issues, the answer is actually a simple one and takes the employer to first principles in relation to the law of accommodation. The first step is for the employer to determine whether or not the employee actually suffers from a medical condition which requires accommodation. Keep in mind that it is not good enough for the employee to assert a medical issue without medical evidence. Rather, as is the case with all disability accommodation cases, the employer is entitled to request medical information to be able to determine whether or not there is a disability and if so, whether or not it can be accommodated. When the requested medical information has been returned, it will guide the company as to next steps. If the employee does indeed have a disability, then the employer may need to try to accommodate the employee to the point of “undue hardship”, which will not be discussed further here.
In short, if the employee has a disability that can be accommodated to the point of undue hardship, then the employer will need to do so. In a COVID-19 return to the workplace scenario, this may include such options as permitting remote work, isolating the employee in the workplace so as to protect them, continuing with mandatory vaccination and/or masking mandates in the workplace, and so on. On the other hand, if the employee is medically unable to return to work but there would be undue hardship to accommodate the employee, then depending upon the current status of the pandemic and whether the employee’s disability is temporary or permanent, solutions may include a temporary layoff or even a without cause termination of employment and the provision of a package to the employee.
Employees who cannot return to the workplace due to family medical issues
This category of employees should be looked at in a similar fashion but the key question to be answered is whether there is a family status issue to be considered. There are two parts to this, as follows: (i) does the family member suffer from a disability; and if so (ii) does the employee meet the family status test such that the employer must accommodate them and not require a return to the workplace? Part (i) is dealt with in a similar fashion to the question of whether or not an employee is under a disability, in that certain medical information can be requested in relation to the family member and must be provided by a medical professional. Part (ii) requires the employer to review the request through the legal test for determining whether an employer must accommodate an employee due to family status.
There are different tests depending on the nature of the family status but as an example, the test for family status accommodation in the context of a child includes the following factors: (a) the child is under the employee’s care and supervision, and the employee has responsibility for the child; (b) reasonable efforts to meet those obligations have been made and no alternative solution is reasonably accessible.
Some employees will not want to return to work because their child is under the age of five and is not yet vaccinated and they no longer see group daycare as a viable option. Unless the child also suffers from a medical condition which engages the requirement to accommodate, the employer can insist that the employee return to the workplace. On the other hand, some employees will have children or parents for whom they have responsibility, and who are immuno-compromised. Once the disability test has been met, the analysis flips to the test for family status. Does the child or parent live with the employee? Are there other adults outside of the household who can share care obligations (i.e., a sibling; a divorced spouse)? The list of considerations is significant, and these are just a starting point. But if the disability test has been met and the employee must provide care to their family member, accommodation to the point of undue hardship may be necessary under this category as well. The devil is usually in the details, and legal advice is always recommended when reviewing such a request.
Employees who do not want to return to the workplace
This is an easy category to deal with, in that if there are no protected Human Rights Code (Ontario) (“Code”) reasons for accommodation, the employer can insist upon a return to the workplace. While an employer can voluntarily choose to accommodate in this situation, it’s not legally required.
This can also be a complex category however, due to business and human resources considerations. Employees who are unhappy at being forced to return to the workplace may vote with their feet to move on to a workplace that allows them to work remotely (or may even retire altogether). Employers facing these considerations may need to go back to the basics outlined at the start of this insight and ask themselves the fundamental question: “Do employees actually need to return to the workplace?”
Employees fearful of a return to the workplace
In addition, it may be worthwhile for employers to probe with employees as to the reason why they don’t want to return to the workplace. If it’s out of fear, can the employer assist in some fashion? Is it fear over being in the workplace itself, in which caseemployers may consider continued vaccination and/or mask mandates, continued physical distancing/isolation/ventilation, etc. Is it fear over taking public transit to get to work during a pandemic? Keep in mind that public transit use is sometimes tied to economic issues and that assisting employees by helping to provide creative transportation solutions may be an answer.
Employees who prefer working from home
Does the employee simply prefer working from home? Again, business considerations may come into play if there is no reason why employees must work from a workplace. Was the employee productive working from home and are they an employee that the employer wants to keep? Are they willing to come into the workplace on an occasional or as-needed basis for meetings, training or other mandatory get-togethers? Is hybrid work possible? There are a variety of questions that employers may want to ask themselves under this heading, even if these employees can be required to return to the workplace from a legal point of view.
Employees who do not want to return due to a vaccination mandate
As matters currently stand, employers can continue to have mandatory vaccination mandates in place. This insight will not discuss whether or not workplace vaccination mandates are required or still a good idea. However, there remains a number of employees in Ontario who are currently not working because they refused to be vaccinated when mandates came into force.
In short, employees under this category who don’t wish to return because an employer still has a mandatory vaccine mandate in place can either be forced to return or can have their employment terminated, provided that they do not have a valid right to an exemption due to creed (religion) or disability under the Human Rights Code (Ontario).
In addition to the above considerations, employers need to keep in mind that there also continues to be legislation in Ontario which guides some of these questions.
Emergency leave: Declared emergencies and infectious disease emergencies1
Apart from the common law accommodation requirements discussed, if an employee is eligible for an unpaid leave under Section 50.1(1) of the Ontario Employment Standards Act, 2000 (ESA) (“Infectious Disease Leave”) and wishes to take it, the employer must adhere. A failure to do so means that the employer will be in contravention of the legislation. Keep in mind that this leave is different from the “deemed” Infectious Disease Emergency Leave under O.Reg. 288/20: Infectious Disease Emergency Leave (IDEL), which is currently set to expire on July 31, 2022. It should also be noted that the Infectious Disease Leave does not carry with it the same accommodation analysis which is required under the common law when an employee seeks time off work due to COVID-19 for medical or family status reasons, as discussed above.
Section 50.1(1.1)(b) of the ESA states that an employee is entitled to a protected unpaid Infectious Disease Leave in the following circumstances (not a complete list):
b. because of one or more of the following reasons related to a designated infectious disease:
i. The employee is under individual medical investigation, supervision or treatment related to the designated infectious disease.
iii. The employee is in quarantine or isolation or is subject to a control measure (which may include, but is not limited to, self-isolation), and the quarantine, isolation or control measure was implemented as a result of information or directions related to the designated infectious disease issued to the public, in whole or in part, or to one or more individuals, by a public health official, a qualified health practitioner, Telehealth Ontario, the Government of Ontario, the Government of Canada, a municipal council or a board of health, whether through print, electronic, broadcast or other means.
iv. The employee is under a direction given by his or her employer in response to a concern of the employer that the employee may expose other individuals in the workplace to the designated infectious disease.
v. The employee is providing care or support to an individual referred to in subsection (8) because of a matter related to the designated infectious disease that concerns that individual, including, but not limited to, school or day care closures.2
The employee is directly affected by travel restrictions related to the designated infectious disease and, under the circumstances, cannot reasonably be expected to travel back to Ontario.
In summary, if an employee seeks a protected leave of absence from work for one of the situations set out under the Infectious Disease Leave legislation, then the leave of absence must be granted by the employer.
Other applicable statutory leaves of absence
Finally, employers must keep in mind that in addition to the Infectious Disease Leave, there may be other statutory leaves under the ESA which are available for employees who cannot or do not currently wish to return to the workplace. In brief, they include the following, with the specific details of those leaves codified within the legislation:
- Sick Leave, Section 50
- Family Responsibility Leave, Section 50.0.1
- Family Caregiver Leave, Section 49.3
- Family Medical Leave, Section 49.1
- Critical Illness Leave, Section 49.4
In summary, we end where we began. The best place for an employer to begin its analysis as to whether or not accommodation is required for a return to the workplace, is by answering the simple question: “Do employees actually need to return to the workplace?” Has the employer considered its continuing obligations under the OHSA to provide a safe and healthy workplace for employees? Where a full or partial return to the workplace is required or desired by the employer, requests for accommodation on the basis of disability or family status will need to be considered, as will requests for statutory leaves of absence under the ESA.
Even if there isn’t a basis for a legal accommodation, an employer might consider whether there are good reasons not to require its employees to return to the workplace, either full time or on a hybrid schedule, such as employee retention.
- Section 50.1(1), Ontario Employment Standards Act, 2000
- See Section 50.1(8) of the ESA for a list of specified individuals