As employees return to physical workplaces, general counsel reveal concerns and opportunities
After months of remote work during the COVID-19 pandemic, social distancing rules are gradually easing and employers are beginning to ask staff to return to physical workspaces, creating a host of labour and employment concerns for in-house counsel.
“There are a lot of issues that employers are going to face in bringing people back to workplaces,” says Jennifer Koschinsky, a partner at Gowling WLG’s Calgary office. “There may be issues with employee mental health. This has been a long time that people have been disengaged from their co-workers so bringing them back may impact everybody’s mental health in the workplace.”
Some furloughed employees may even be disincentivized from returning to work because the government benefits they have been receiving are more appealing than wages, Koschinsky adds.
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“Employers need to focus on the fact that it was an interim measure in a very unique situation and, once those emergent issues dissipated, they were able to require their workers to return,” says Tracy Bergeron Lucha, a partner at Dickinson Wright LLP.
Health and safety issues are a significant concern for many employees.
“If an employee comes back in and appropriate measures haven’t been taken to ensure the safety of the workplace, they can refuse to work just as they could before,” says Koschinsky. “Employers need to have a comprehensive plan in place that they can share with employees to show that they are taking all of the steps required.”
Six months since Ontario schools closed at the start of the COVID-19 pandemic, teachers and students prepared to return to classrooms in September, amid much controversy and debate about the health and safety implications. Leola Pon, general counsel, executive officer, legal at the Toronto District School Board, is considering a multitude of labour and employment laws and legislations.
“All the key legislation that applies to school boards in terms of health and safety is in the Occupational Health and Safety Act, and, in a school context, we are both an employer and a service provider, so it’s very complex and very dynamic,” says Pon. The act includes a duty to take reasonable measures to ensure the health and safety of staff members. It also has work refusal provisions that may come into play at a time when some teachers and other school staff are concerned about safety.
“There may be some work refusals where a teacher or other staff member has a real or irrational fear of contracting the disease at school, so that’s something we’re going to have to deal with,” says Pon.
Pon is also considering other pieces of legislation such as the Human Rights Code and the Accessibility for Ontarians with Disabilities Act, which spells out the need to have a procedure on workplace accommodation needs. The Workplace Safety Insurance Act could crop up if a teacher or other staff member believes they contracted COVID-19 through contact with someone in the school, so Pon is preparing for that possibility.
Like all school boards, TDSB is highly unionized so it is subject to the collective agreements of the union.
“Our relationship with the unions also governs how we proceed with a return to school and in fact we have been working very closely with our unionized and non-unionized employee groups,” says Pon.
Together with her 11-person legal team at TDSB, Pon is also navigating privacy issues including the handling of personal information such as medical data and a potential need for contact tracing.
Despite all the challenges, Pon says the pandemic crisis presents opportunities for positive change to labour and employment law.
“I do hope it translates into some changes in the law or policy or best practices so that, if we ever encounter such a situation again, the transition in and out of pandemic contingency planning will be a lot easier to handle,” she says.
As an essential service, Air Canada has been in operation throughout the pandemic, although a vast reduction in operations presented many labour and employment concerns. As restrictions ease and flight schedules start to ramp up, Fred Headon, Air Canada’s assistant general counsel, labour and employment law, is working with the airline’s legal team of 70 lawyers and support staff to go above and beyond public health recommendations for staff and customers.
“We’re moving beyond the legal minimum. For employees to perform at their best, they do need to feel comfortable that they are in a safe environment, that proper precautions are in place and that they understand the measures we’ve taken to keep them safe,” says Headon.
Interpreting measures of the Canada Labour Code has been challenging, he says, because of the shifting understanding of the virus.
“We’re frequently engaging with that legislation and drawing on input from a number of our safety and medical team to understand what the legislation may require in this case, and then to figure out how to operationalize measures that might give life to that specific obligation under the code,” says Headon.
He says privacy is also a major concern at Air Canada — both for passengers and for employees.
“We’re making sure we collect only the data we need and that it’s seen only by those who should see it and that it’s accurate,” says Headon. This has involved putting in new systems electronically in some cases and raising awareness.
“Collecting medical information attracts a high degree of scrutiny, so making sure we have the right awareness and processes in place has been crucial to our ability to manage this new environment,” says Headon, adding that another concern is leaves of absence and wage subsidy programs.
Headon says the pandemic has presented an interesting opportunity to rethink certain laws.
“As we now consider the reopening of the economy and the loosening of the restrictions, I think there’s an opportunity to take this experience and perhaps further that change as we embrace new ways of working, new locations of working and a deeper understanding of some of those health and safety elements,” he says.