Following the unveiling of BC’s Restart Plan, and as part of the province’s transition to the “new normal”, many British Columbian employers are welcoming their employees back to the traditional pre-pandemic workplace. However, given the current climate of the COVID-19 pandemic, employers will inevitably be met with requests from employees wishing to not return to the physical workplace for fear of contracting COVID-19. Some of these requests will be justified or reasonable but others will not, and this legitimacy will not always be immediately clear for the responding employer.
In order to determine whether a request not to report to work may be justified or reasonable in the circumstances, employers should consider the following questions:
- Is the request driven by an occupational health and safety concern? Workers have a right to refuse unsafe work, and therefore may take the position that by requiring them to return to the workplace, their employer is in effect directing them to perform unsafe work. WorkSafeBC has prescribed requirements for COVID-19 Safety Plans, including the contents of those plans and the measures employers must consider implementing in order to ensure the safety of its workers. Where an employer has not complied with the COVID-19-specific guidelines crafted by WorkSafeBC, among other requirements, a worker may be justified in refusing to perform work in an unsafe location, so employers must ensure that they have satisfied these enhanced occupational health and safety requirements.
- Is the request driven by a human rights-related concern? Some employees may have protected characteristics that may justify a refusal to return due to COVID-19 concerns, such as: age, disability, or family status. Where a protected characteristic is in issue, employers are generally required to consider whether the characteristics can be reasonably accommodated to the point of undue hardship. Under human rights law, employees and unions are also required to meaningfully participate in the accommodation process. For example, this can include cooperating with an employer’s request for supporting information or documentation where appropriate.
- Is the request actually a request for a job-protected COVID-19-related leave? Where requested, an employee is entitled to COVID-19-related leave in accordance with BC’s recent amendments to the Employment Standards Act. Under the legislation, an employee may be entitled to take COVID-19 job-protected and unpaid leave based on prescribed circumstances. Employers must be aware that under these amendments, an employer’s ability to request reasonably sufficient proof establishing an employee’s eligibility is limited.
As a general rule, employers can direct their employees to perform duties in physical workplaces, such as offices or other locations where employees were working pre-COVID-19. However, this right is not absolute, depending largely on the facts of the matter and legal considerations such as those set out above. Indeed, any one request not to return to work or attend the workplace will have to be assessed on a case by case basis. Employers should be weary of any hasty unilateral action, particularly where information may be incomplete, and where the employee may face adverse consequences.
Where an employee refusal to report to work it is not justified , then disciplinary measures may, in certain cases, be appropriate. Where some form of discipline is appropriate, the discipline imposed must also be warranted and proportionate in the circumstances. Employers should also give careful consideration to any present aggravating and mitigating factors. Importantly, as discussed above, there are circumstances where discipline may not be appropriate, or, in certain circumstances, expressly prohibited at law.
If you have any questions about how to respond to employee requests to not return to work or the workplace, our Employment and Labour lawyers would be pleased to assist.