15 May Administering Change in the Workplace: Re-issue Mandatory Masks or Other Mandates Without Repercussions
COVID-19 has been the virus to help everyone champion adaptability. Over these past couple of years, we have had to follow government regulations that have led many workplaces across Canada to develop new policies responding to these mandates.
As safety rules increased, employers received more pushback from employees. There were employees refusing to wear masks, receive vaccines, and undergo rapid testing that have all been a necessity to become re-involved in “normal” everyday life. Employers were then burdened with the responsibility of enforcing rules without forcing employees to concede. As employers began to enact these policies, conversations started about whether these mandates could prompt constructive dismissal charges, or even, wrongful dismissal claims.
Employers were between a rock and a hard place. On the one hand, they had the government urging COVID-19 safety regulations, and on the other, they had employees complaining about the employer’s legal authority to constrain an employee’s right to choose.
The spread of COVID-19 is constantly shifting, and there have been employers keen on re-issuing or re-prioritizing their safety policies protecting employees from COVID-19. But how should employers create these policies and influence their workplace to abide by these rules while minimizing potential legal consequences?
The main risk of initiating new rules at the workplace is potential constructive dismissal claims. A constructive dismissal claim is prompted when the employer substantially changes a fundamental term or condition of an employment contract without the employee’s consent. To avoid these claims, the employer should prioritize the employees consent to any likely changes or commit to only making minimal changes to the contract. If there is a condition of the contract that is likely to change over time, the employer can outline this variable in the initial contract. Once the employee signs the agreement, they have consented to the current terms and the potential future terms that have been specified.
If the employer must make a change that they could not originally foresee (like many pre-COVID contracts), they can still collect consent from their employee. The change must be proposed with an offer of greater value than their current position. For example, asking the employee to agree to move to another location if their annual salary is increased.
If the employee does not provide their consent and the change could be classified as substantial, the employer can provide notice equivalent to the amount of entitled termination notice. The notice would be warning the employee of the impending change, and once that notice period has ended, the employee can either end the employer-employee relationship or continue with the new contract.
If you are an employer looking to make changes to contracts or create new policies, please contact KCY at LAW by filling in an online consultation request or contact us by phone at 905-639-0999 to book your consultation today.