COVID-19 and Workplace Screening in Canada

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COVID-19 and Workplace Screening

After many months of being closed to both workers and the public, businesses, offices, factories, laboratories, shops, restaurants and workplaces of every kind are beginning to cautiously reopen. As infection numbers decrease and cities across the province make steps towards reopening, many employees who have been unemployed or working from home because of the pandemic are returning to their place of work

But in order to contain the spread of the virus, things can hardly go back to business as usual. Indeed, before allowing any workers to resume working in their office, lab, shop or any other place of employment, employers need to have plans, policies and procedures in place to ensure the health and safety of their employees.

The Occupational Health and Safety Act requires employers to take reasonable precautions to protect workers. The single greatest concern for most employers right now is preventing the spread of COVID-19 in their workplace. The virus is highly contagious and so any space in which people gather or share contact creates a risk for transmission.

While ensuring that employees, customers, visitors and anyone else who enters your workplace wear personal protective equipment (such as masks), sanitize their hands and maintain two metres physical distance from one another at all times is imperative to reduce the spread of the disease, a critical means of preventing transmission is ensuring that people who are infected do not enter spaces where they can transmit the disease to others in the first place.

Screening employees for COVID-19 is a proactive measure that employers can take to protect everyone from the spread of coronavirus.

Coronavirus Screening Measures

Screening employees for coronavirus will look different from one workplace to the next. What employee screening looks like will also depend on the employer’s resources, the nature of the workplace and the nature of risks associated with performing workplace duties.

Measures necessary to protect workers in a small office will be different from those needed to protect those working in a large warehouse, for example. They will be different for workplaces that interact heavily with the public versus those that are predominantly self-contained.

While some screening methods can be performed quite easily and at a low cost, others are more complicated to administer. Each method had benefits and drawbacks that each employer must consider before implementing in their workplace.

Self-Declaration Checklist

This is one of the easiest to administer and lowest-cost screening options available to employers. A self declaration checklist requires those who enter a workplace to answer a variety of questions that may help to indicate if they are at risk for having, and therefore transmitting, COVID-19.

There are many templates available online but common questions to pose include: Have you been in contact with someone who has tested positive for COVID-19? Do you have a fever, runny nose or other cold-like symptoms? Have you been out of the country in the last 14 days?

It is important that questions on a self-declaration checklist be limited to what is reasonably necessary to determine an individual’s risk of coronavirus exposure and ensure the health and safety of the workplace.

Self-Reporting

Employers should empower employees to self-report and avoid the workplace if they are experiencing any symptoms of or have potentially been exposed to the virus. Employers need to create an atmosphere of trust so that employees feel safe disclosing any potential COVID-19 symptoms and self-isolate when advisable. In order for self-reporting to be an effective screening method, employers must provide clear guidance about the circumstances in which an employee should self-report, how they should report and to whom, and what to do after they have reported.

Temperature Screening

Fever is a common symptom of the coronavirus and therefore having employees check their temperature before entering the workplace (using a temperature gun) can be an effective means of screening for potential illness. All employees will need to be trained on how to properly take and record their temperature and what to do if theirs is elevated. Temperature screening is non-invasive and provides instant results. However, body temperature alone is not an accurate assessment as to whether or not an individual does indeed have COVID-19.

Viral Testing

Viral testing involves having all individuals being tested for the coronavirus. Viral testing will not be necessary or even feasible for many workplaces and employers. However, it may be not only appropriate, but necessary for workplaces that pose a high risk of transmission.

Key Takeaways for Employers

Whatever the measures you decide to take as an employer to screen your employees, these measures should be thoughtfully developed and clearly explained to all employees. Employees should understand the measures that their employee has taken and the reason for these methods. They should be away of how and when to report for testing. Perhaps most importantly, employees should be informed of what steps will be taken based on the outcome of the test. Employers should have a plan in place to swiftly and safely address what will happen if an employee’s screening indicated potential exposure to or symptoms of the Coronavirus.

Get in touch with the experienced employment law team at KCY at LAW by calling (905) 639-0999 or contact us to find out more.

Leaves of Absence Ontario – The Ultimate Guide

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Things come up. Life is full of unexpected twists and turns – some joyful and others trying beyond measure. Life is often a delicately managed chaos. At the best of times, striking a work-life balance demands the gymnastic skills of a Cirque-de-Soleil performer. And then life throws a curve-ball into this juggling act and, much like this circus analogy, things go off the rails.

As essential as work may be, there are other things in life that are far more important: a new baby or an ailing relative, for example. Fortunately, Ontarians have access to several different leaves of absence under the Employment Standards Act (ESA).

Leaves of Absence Available in Ontario

The job-protected leaves of absence available to Ontarians are:

  • Personal Emergency
  • Family Caregiver
  • Family Medical
  • Critically Ill Child Care
  • Crime-Related Child Death or Disappearance
  • Reservist
  • Organ Donor
  • Jury Duty
  • Voting
  • Pregnancy
  • Parental

Leave of Absence & Job Protection

Each of these leaves of absence is job-protected, meaning you are entitled to return to your job, in the same position as when you left for your leave. You cannot be fired or punished in any way for taking or planning to take one of these leaves of absence. This means you cannot have your wages or hours reduced or be threatened with suspension or termination. As mentioned, you are entitled to your former position upon returning to work. However, if your position no longer exists, you should be offered one that is comparable in terms of skills, duties, pay, benefits, etc.

Your benefits, length of service and seniority will continue to accrue during your leave. Furthermore, your employer must continue to make contributions towards your benefits plan unless they are shared contributions and you advise your employer in writing that you will not continue your contributions during your leave.

You are entitled to all of these leaves whether you are employed part-time, full-time, on a contract or permanent basis. While these leaves are all unpaid, you are often entitled to access certain Employment Insurance (EI) benefits during these leaves.

Giving Notice for Leave of Absence

Giving your employer reasonable notice of your leave is essential. It allows them to plan ahead and keep their business running smoothly. Two weeks is the generally accepted standard minimum period of notice. However, as many of these leaves are intended to address unexpected emergency situations, it is understood that two weeks notice is not always possible.

Employees should strive to give their employers as much notice as possible. With pregnancy and parental leave, this can be fairly straightforward, but with an unexpected medical emergency it might not be. Therefore, regardless of the leave, you should give your employer notice of your leave as soon as possible whether it is two months or two hours in advance.

The Scoop on the Various Leaves of Absence

As this week’s blog title suggests, we are going to break down the various leaves of absence over a couple of posts. So, come back next week to learn the ins and outs of Personal Emergency, Family Medical, Family Caregiver and Critically Ill Child leaves of absence.

If your work position has been negatively impacted by a leave of absence, KCY at LAW has the expertise to ensure that your rights are protected. Call to book a consultation (905) 639-0999 or reach us online.

Update:

Tattoos and Piercings In The Workplace

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Whereas tattoos, Crayola-coloured hair and prolific facial piercings were once an aesthetic reserved for punks, goths and other subculture groups, these body modifications have become commonplace in mainstream Canadian culture. For example, an estimated 38 per cent of millennials have tattoos and the trend towards an inked-up epidermis isn’t showing signs of slowing.

Despite their growing popularity and visibility, many workplaces still prefer that their employees do not have visible tattoos or piercings beyond their ears. But as an increasingly tattooed and pierced generation comes to dominate the workforce, so too do their sensibilities about acceptable presentation and self-expression.

Which raises the question: do employers have the right to discriminate on the basis of body modifications such as tattoos and piercings when hiring employees?

Appearances and Hiring in Canada

Given Canadian culture’s ever-growing tendency towards the celebration of differences, it may surprise you to learn that, when it comes to hiring, employers have every right not to hire someone because they are tattooed or heavily pierced. So long as the tattoos or piercings are not part of an ethnic, religious or tribal custom, the Human Rights Act and the Charter of Rights and Freedoms do not apply to employers’ hiring choices with regards to body modifications.

Tattoos and Piercings in the Workplace

Once an employee is hired, employers do not have the same discretion to impose strict rules regarding visible tattoos and piercings.

Employers do have the right to exercise their own discretion when asking their employees to remove piercings or cover up tattoos. However, significantly restrictive rules concerning piercings and tattoos should have a reasonable business purpose. Therefore, employers should ask themselves if their rules relate to the achievement of their company’s purpose.

Recent decisions from Ontario and Quebec judges have begun to clarify the limits of employers’ discretion when setting workplace policies concerning tattoos and piercings.

In 2013, the Ottawa Hospital changed its dress code to require all staff (including those who did not work directly with patients) to cover all “large” tattoos. The new policy also required that staff remove “excessive body piercings.” The Ottawa Hospital argued that patients were less comfortable with tattooed and heavily pierced healthcare workers and that this could lead to stress and negative health outcomes. While the hospital argued that these measures were to ensure better patient health, the arbitrator found that these new regulations were too restrictive. Moreover, the arbitrator could find no evidence to support the supposed link between hospital workers’ body modifications and patients’ health outcomes and was therefore found to be unenforceable.

The Ottawa Hospital decision was consistent with a 2011 arbitrator decision that found an Ontario Provincial Police policy requiring all 9,000 of its police officers to cover visible tattoos was too broad to be enforceable.

Going further back, in 2009, a Quebec judge determined a daycare’s blanket prohibition on visible tattoos to be unreasonable. The judge granted that, while it was fair for the daycare to prohibit visible tattoos with inappropriate images for children, their insistence that an employee with a butterfly on her arm wear long-sleeves in the summer was overreaching.

Tattoo and Piercing Workplace Policies

Employers should consider if having visibly tattooed and/or pierced employees is likely to negatively impact their business interests.

Naturally, an employer does not want their employees’ appearance to be upsetting or off-putting to their clients or customers. It is fair for employers to require employees to cover tattoos that would reasonably be seen as inappropriate such as tattoos that depict hateful messages, or graphic violence or sexuality. Asking an employee to cover offensive tattoos is fine but sweeping prohibitions on tattoos and piercings may be found to be unreasonable if brought to arbitration.

Workplace tattoo and piercing policies should therefore:

  • Be applied consistently across race and gender
  • Never discriminate based on religious or ethnic beliefs
  • Distinguish between employee roles (i.e. those that do and do not interact with customers or clients)

Workplace Dress Code Policies

KCY at LAW has significant experience helping employers craft fair and enforceable workplace policies that will protect your business interests while respecting your employees’ rights to individual expression. To book your consultation, give us a call on +001 905 639 0999 or contact us online today!