In part one of this two-part series on transitioning from COVID-19 workplace mandates, we covered the latest and upcoming changes to COVID-19 workplace safety requirements in British Columbia. In part two, we explain what these changes mean in light of other statutory responsibilities employers have pertaining to workplace safety and employees with medical conditions, including responsibilities under B.C.’s Workers’ Compensation Act, Human Rights Code, and Employment Standards Act.
Some of these responsibilities have, in effect, been temporarily superseded by more stringent and broad COVID-19 mandates, but they have nonetheless remained in force. As COVID-19 mandates fade, the management of COVID-19 workplace health risks will be regulated predominantly by these earlier statutory responsibilities. As such, the simultaneous lifting of COVID-19 mandates and resurfacing of earlier statutory responsibilities creates the potential for a dangerous blind spot for employers, particularly for those that began operations or commenced hiring after COVID-19 mandates were introduced. To help avoid those liability traps, employers should be mindful of the following statutory responsibilities as they transition away from COVID-19 workplace mandates.
Human Rights Code
Looking first at employees who become ill with COVID-19, the B.C. Human Rights Code prohibits employers from discriminating against employees on the basis of, amongst other things, disability. As an extension of this duty, employers are subject to a “duty to accommodate” employees who are or may be adversely impacted in their employment by disability (including an illness like COVID-19). The duty to accommodate requires employers to implement or allow certain modifications to an employee’s conditions of employment to avoid such adverse impacts, so long as the modification does not result in “undue hardship” for the employer. Typical forms of accommodation for an employee with COVID-19 may include permitting unpaid leave while the employee is unable to work and/or allowing remote work while the employee is unable to come into the office.
Over the past two years, however, entitlements to remote work and unpaid leave have been mandated by the Provincial Health Officer Order on Workplace Safety (the “Order”) and the Employment Standards Act, respectively. These mandates have, in effect, supplanted entitlements under the Human Rights Code to accommodations like remote work and unpaid leave in relation to COVID-19, as they have been made available to a much larger pool of people and in a wider array of situations.
Employers must bear in mind that their obligations to provide unpaid leave and remote work arrangements will not necessarily end when COVID-19 mandates are lifted. Even though remote work entitlements were removed from the Order on February 16, 2022, an employee with COVID-19 (or another disability impacted by COVID-19) may still be entitled to a remote work arrangement pursuant to the Human Rights Code, though in more limited circumstances. Similarly, after the COVID-19 unpaid leave entitlement is repealed from the Employment Standards Act, employers will still be required to provide unpaid leave as a form of accommodation under the Human Rights Code in certain situations. Employees who have long-since recovered from COVID-19 may also be entitled to accommodations if they are still impacted in their employment by the long-term effects of COVID-19.
As COVID-19 mandates are lifted, then, the issue of accommodating employees with COVID-19 (or another disability impacted by COVID-19) may become more complicated for employers. Whether or not an employee is entitled to an accommodation like remote work or unpaid leave in relation to COVID-19 will depend on the application of “duty to accommodate” principles under the Human Rights Code to the particular circumstances. This will require an assessment of factors like whether remote work is a reasonably necessary form of accommodation for the specific employee or whether it would create undue hardship for the particular employer.
Workers’ Compensation Act
Even after COVID-19 safety plans are lifted, employers will still be required to manage ongoing COVID-19 health risks as long as they are present in the workplace, as part of their occupational health and safety obligations.
Beginning on April 8, 2022, employers will be required to develop (or reintroduce, for those who had done so previously) a communicable disease plan in lieu of a COVID-19 safety plan. We expect that this will be the primary means by which employers address workplace COVID-19 health risks going forward. WorkSafeBC has provided the following four-step process for developing a communicable disease plan: (1) understand the risk; (2) implement measures, practices, and policies to reduce the risk; (3) communicate measures, practices, and policies; and (4) monitor your workplace and update your plan as necessary. More information on developing a communicable disease plan can be found in this guide.
Employers in British Columbia also have a general duty to ensure the health and safety of their workers and other workers entering their workplace. This duty requires employers to, amongst other things, make their employees aware of all known or reasonably foreseeable health or safety hazards and remedy workplace conditions that are hazardous to the health or safety of their workers. These duties will not change once COVID-19 mandates are lifted.
Given these ongoing obligations, employers may wish to maintain some COVID-19 workplace safety protocols in their workplace. As a starting point, employers should undertake a workplace risk assessment through their Joint Health and Safety Committee to determine what protocols, if any, should be maintained or implemented to mitigate against ongoing COVID-19 health risks. Employers with highly vulnerable workforces or who operate in highly transmissible workplaces, for example, may need to maintain special health and safety protocols to mitigate against those risks, like an exposure control plan.
Employers should also remain vigilant in monitoring changes to the health risks in their workplace. Special health and safety procedures may not need to be implemented in an ordinary office environment, for example, but that may not be the case if a COVID-19 outbreak were to occur in the office. Any employee monitoring, especially the monitoring of employee health information, should always be done in accordance with employee protections under B.C.’s Personal Information Protection Act and Human Rights Code. At minimum, employers should have secure systems in place for employees to report medical conditions or symptoms thereof that pose a serious risk to the health or safety of other employees.
Employment Standards Act
Amendments to the Employment Standards Act were introduced in response to COVID-19 providing for paid vaccination leave, paid sick leave, and unpaid leave, amongst other things. While the paid sick leave entitlement is no longer available, the paid vaccination leave and unpaid leave entitlements still are.
Certain COVID-19-related entitlements in the Employment Standards Act, like unpaid leave, provide for related entitlements as those established by COVID-19 mandates under the Order, like remote work. Importantly, though, COVID-19-related entitlements in the Employment Standards Act will remain in force longer than entitlements under the Order. This scenario creates liability risks for employers who respond rashly to changes to the Order.
For example, while an employer may no longer be required to allow an employee to work remotely pursuant to the Order, it may still be prohibited from requiring an employee to return to the office if an employee is entitled to COVID-19 unpaid leave pursuant to the Employment Standards Act. Employers who demand that employees return to the office after the remote work entitlement was removed from the Order may thereby expose themselves to liability in relation to employees who are also entitled to unpaid leave under the Employment Standards Act. Accordingly, as mandates under the Order are repealed, employers should be aware of analogous entitlements under the Employment Standards Act that remain in force.
The COVID-19-related entitlements under the Employment Standards Act are temporary and will likely be repealed at some point. However, the B.C. government has yet to provide a timeline for when that is expected to happen.
The changes to COVID-19 workplace mandates introduced on February 16, 2022, and March 11, 2022, and expected to be introduced on April 8, 2022, should be seen as part of a gradual shift toward returning to pre-COVID-19 workplaces. This shift will, without a doubt, provide much needed relief for many employers.
However, these changes should not be taken to mean that employers can quickly return to pre-COVID-19 operations and immediately end employment arrangements that have been made pursuant to COVID-19 mandates. Employers’ decisions about how to manage their workforces and workplaces as COVID-19 mandates are lifted should be made on a case-by-case basis, and be informed by the full scope of their legal responsibilities as employers.
Miller Thomson LLP’s Labour and Employment Group can help guide your business through its transition back to the workplace.