Quebec lockdown, COVID-19 creates urgency to adapt labour/employment policy

Quebec’s announcement on Wednesday of a four-week lockdown also has implications for workplace matters, says a Montreal labour and employment lawyer — and both employers and government should be prepared to adapt policies and legislation for future, too.

“Now it’s time for employers to have all the right policies in place,” says Arianne Bouchard, a senior associate who practises in labour and employment law in the Montreal office of Dentons Canada LLP.

That’s because office workers — except those whom the employer assesses as being required to work in person to continue business operations — have been working from home, or teleworking, since Dec. 17, when the Quebec government mandated it. The newly announced lockdown extends that requirement until Feb. 8, when the lockdown is scheduled to end.

Employers “had to put things in place very quickly, in an emergency context,” says Bouchard, and must now consider workplace health and safety requirements, labour legislation and more.

Employers must ensure they comply with their obligations in terms of workplace health and safety, and confidentiality of data in a remote environment. And in Quebec, at least, labour legislation is based on the concept of establishment, or a physical workplace, Bouchard adds. Certifications and collective agreements are often per establishment and certain legal obligations, like those related to collective dismissals for example, are based on the number of workers or affected workers in an establishment.

“Governments would have to think about this as well,” she says, with many employees working in various locations, even if they have the same employer.

Bouchard says she doesn’t believe that employers can prevent employees from travelling internationally on their personal time, but an employee may put themself in a position of not being able to perform regular work when a vacation ends if they are required to perform the work in the employer’s workplace, and must self-quarantine after returning home. “So, you can’t leave the country if you have to attend the employer’s establishment to work” immediately following a vacation, she says.

Requiring employees be vaccinated for COVID-19 in order to perform their jobs is possible in specific workplaces, Bouchard says, such as those in which employees work with a vulnerable population such as the elderly or the sick; “in that kind of workplace it could be a reasonable requirement,” she says. While an employer cannot force an employee to be vaccinated as a condition of employment, it could, in such specific circumstances, prevent an employee from coming to work.

“For employers in general to implement that kind of [vaccination] requirement, it would require clearer directions from government,” she adds; while the Quebec government has the authority to pass such a regulation under the Public Health Act, it has not done so in the past.

“We don’t have the answers yet, but this [pandemic situation] is forcing employers and government to adapt very quickly,” Bouchard says.

“The next few months and years will be interesting; we’ll see a lot of change,” she adds. “We reacted in an emergency, but probably this situation [of remote work] will continue, so it’s time to ensure the policies and legislation are adapted to this new reality.”