No More COVID Isolation Rules: What Employers Need to Know

 I've made the observation before that, as government reduces rules relating to the pandemic, employers may be in a situation of needing to make their own decisions to maintain a safe workplace.

As various Provinces have removed isolation mandates, then, it may not be the case that employers are entitled to simply shrug and allow symptomatic/COVID-positive individuals into the workplace.

An employer owes obligations to maintain a safe and healthy workplace. I would argue that there are circumstances where knowingly allowing a COVID-positive individual in the workplace, without other precautions, would violate that duty. Or, alternatively, where it may discriminate against people on the basis of disability.

Create and Follow a Policy

The biggest red flag I've seen so far is that some employers have inconsistent practices and communications regarding COVID positives - for instance, an environment where one manager might send out company-wide notifications about close contacts ("and I'm testing negative, and will stay home if I test positive"), yet where other managers direct employees to come to work after being advised of a positive test, without so much as communicating that direction to others with nearby workstations.

This kind of mixed messaging creates two significant problems, from an HR management point of view: Firstly, your employees don't know what the expectation is upon them in terms of testing/reporting/absenting themselves from the workplace.

Secondly, it also means that your employees don't know what to expect from everyone else, and in fact might reasonably feel misled. If my employer has directed the person at the workstation next to me to show up, while COVID-positive, then I believe that I have (at minimum) a reasonable interest in knowing that and, under various circumstances, an entitlement to additional measures to ensure my own safety.

Here's the bottom line: In a case where an employer directs a COVID-positive employee to attend at the workplace, without telling the person at the next workstation, and that next person gets seriously ill in circumstances where the reasonable inference will be that they caught it from their co-worker...

...I don't envy the position of that employer in the subsequent proceedings. (Precisely what proceedings might occur depends on a range of factors.)

Consider the Specifics of Your Workplace

A workplace with a significant amount of close contact between colleagues and members of the public will be very different from an office where most people work in a private office, or from the operation of an outdoor facility. The more contact, the more active precautions one should consider.

Managing Public Contact

It will be practically difficult to enforce any policies against members of the public, which means that employees should have maximal protection against the prospect of infection by members of the public. Maintaining distancing and physical barriers within such workplaces will remain important; furthermore, employees should be encouraged (if not necessarily required) to be vaccinated and/or to wear N95 masks.

(Yes, there's an element of workers managing their own risk here. But we don't let workers manage their own risk when it comes to deciding whether to wear a safety harness while working on a roof, or when allowing people to perform work they may not be medically fit to perform. Given the meaningful risk of serious medical harm when an unvaccinated person becomes infected, a responsible employer needs to consider whether letting an unvaccinated unmasked person deal with the general public is akin to letting a tradesperson work on a roof without using a fall restraint system.)

Even absent a mandate, it's likely a good practice for employers to make N95 masks available to workers and provide training resources for their effective use.

Managing Co-worker Contact

Employers have a much higher right to instruct their employees in preventative practices...but there's a bit of an incentive problem here.

Employers are clearly in a difficult spot once an employee has advised the employer that they've tested positive. But if you impose a leave on an employee only under that circumstance, then it creates incentives on the employee to not tell them or to not test.

So this type of management has to start with 'when do we expect people to test': If they find out they've had close contact with somebody who is positive within the last few days, then telling them to take periodic rapid tests is appropriate. (Again, some instruction in proper usage may also be appropriate. As a higher burden here, actually paying for such employees to get professionally tested may be prudent.) If they test positive, then that positive should trigger a reporting obligation and should engage other duties, the specifics of which will vary by workplace.

Mandatory leave is the cautious approach. To promote compliance, paid leave may be prudent, if that's not already available to specific workers. (As well, it's not entirely clear to me that all employers would have a contractual entitlement to require sick people to go home without pay.)

If you're going to require/permit a COVID-positive person to enter the workplace, that point should be made clear in your policy at the front end, and it absolutely should not be a "just come to work as normal" rule, but rather the expectation should be that the person will work with management to develop appropriate risk mitigation.

Tools include WFH, creating an isolated (and well-ventilated!) space within the workplace, staggered shifts to minimize contact with others, added mask requirements for the infected individual, added mask requirements for those who will be in close contact with that individual, and others. Even if you're not requiring nearby co-workers to wear N95s, making them aware of the infected individual in their workplace should be a bare minimum, allowing them to make an educated decision as to the risk level.

Ultimately, there are a range of scenarios where employers might be called upon to justify the actions they took in managing the risk. In my view, the bare minimum an employer should want to be able to say would be "we disseminated a policy that required notification of a positive test; we told employees who were put at risk; and we made N95s available to them". Whether that's actually enough is likely arguable and dependent on circumstances, but less than that isn't a position I'd want to be in.

I have not yet seen any cases of a refusal of unsafe work being successful, but with the removal of isolation requirements, it's just a matter of time before we start seeing some pretty sympathetic refusals, like somebody declining close contact with a known COVID-positive person without PPE.

Consult Your Workers

As an HR matter, you should generally want your employees to feel comfortable in the workplace. A consultation process will help you gauge the comfort levels of the individuals in your workplace, and seek feedback from people on the ground as to how certain restrictions might affect their ability to do their job, and whether they think other restrictions might be useful and/or context-appropriate.

This isn't legally determinative of most legal questions. Just like "the employees don't like safety harnesses" isn't a good enough reason to do away with them, "the employees aren't worried about COVID" isn't a justification for falling short of OHS obligations. On the flip side, the fact that employees may want a higher level of precautions doesn't bind you to implement them, if OHS requirements don't otherwise mandate that. (That being said, if your workers consistently and plausibly tell you that some COVID restriction would, say, significantly impede safe practices in some other regard, that evidence might be helpful in defending your decision not to adopt that restriction.)

So the form of the consultation process will vary depending on the workplace, but in general terms, I'm a fan of anonymous department-specific surveys. There are plenty of decent platforms for this, these days, and the advantages are several: Firstly, it gives employees a chance to actually think about their responses, and invites responses, by comparison to a group meeting where people might feel intimidated about participating. Secondly, the anonymity promotes frank responses. Thirdly, it creates an objective record of the consultation and responses, which - so long as you weigh them in good faith - is going to have good optics if you ever end up on the wrong side of a COVID-related claim. Fourthly, and perhaps most importantly, you can use that questionnaire to ask employees whether they have any immunocompromising conditions or other high risk factors, to help develop a risk profile that may inform your overall strategy, and to put you on notice whether there may be individual accommodations sought.

(Any policy, however, should highlight that individual accommodations will be considered on a case-by-case basis, upon request by the employee with appropriate evidence of the need for accommodation.)

Human Rights Accommodation

Part of the reason why transparency is so critical in these cases is that it provides those with extraordinary risk levels to the information they need to seek accommodation.

I suspect that there's a strong prima facie discrimination argument if you're allowing COVID-positive individuals to work with people with disability-based risk factors and not telling them. Essentially, you're creating a workplace that is just generally unsafe for people with certain disabilities by taking that approach.

With the information out there, it puts people with risk factors into the position of being able to seek specific accommodations - for instance, being removed from environments with COVID-positive individuals; additional physical barriers and distancing obligations; improved ventilation of the work space; etc.

An employer's obligation to accommodate has its limits: The employer is obligated only to offer 'reasonable' accommodations up to the point of 'undue hardship'.

But there are a couple of ways this fight plays out: In one, a person is unsatisfied with the accommodation offered, feels unsafe in the workplace, stops attending at work and asserts that the employer failed to accommodate. In that case, there will be an argument about the adequacy of the employer's accommodation efforts and the reasonableness of the employee's position that it wasn't enough. (That can be a tough fight, and high risk for the employee.)

The second scenario is where the employer refuses the person's preferred accommodation (which isn't inherently problematic, so long as either the sought accommodation is unreasonable or the employer offered a different reasonable accommodation in lieu), and the person got sick (under circumstances where there's a reasonable inference the contagion was caught at work). In that case, the employer's position is deeply unenviable: The employee is pretty sympathetic in a 'failure to accommodate' claim, and the employer's position that the accommodation it offered was 'reasonable' is somewhat undercut when it did not, in fact, keep the employee safe.

(Of course, we all understand that we're talking about managing probabilities, and even significant measures can't guarantee that COVID won't enter a workplace or infect any particular employee. The fact that the employee got sick isn't proof, per se, that the employer's approach was objectively inadequate. But in practice, if the employer's pitch is effectively that they made the worker 'safe enough', yet the vulnerable employee got sick anyways, they'd better be able to point to an objectively robust approach to managing COVID.)

The Differences Between the Two Frameworks

For clarity, the duty to maintain a safe and healthy workplace, and the duty to accommodate employees, are two very different duties with (likely) different substantive contents. It may well be that the measures you've implemented are adequate to generally satisfy your OHS obligations, but that an employee at particular risk may be entitled to something more.

OHS is about making the workplace safe for everyone. Human rights - and this is often misunderstood - can require exceptional measures for specified individuals. I've seen plenty of scenarios where employers have chafed at accommodation requests, on the basis that "If we do this for that person, we have to do it for everybody." That is generally not an appropriate way of looking at it, and typically gets employers into trouble.

In this context, that issue is particularly acute in the context of WFH requests. While there may be exceptions, I would generally doubt that OHS requires most employers to make remote work available to their employees. However, if an employer has made a decision to return workers to the physical workplace, and an immunocompromised employee - who has adequately performed their duties from home without any documented issues - asks to be able to work from home to minimize risks, the employer will likely not be able to argue that this measure would create undue hardship. The fact that they've successfully performed their duties remotely weighs heavily on this analysis, and while employers may want to consider the morale impact on other employees - "why does Bob get to work from home, and I don't?" - that is simply not an appropriate consideration. (Employers may be able to provide alternative accommodations to ensure a safe workplace instead of the requested WFH, but there is a gamble in doing so.)

Conclusion

In sum, there are a few planks to a good approach for COVID risk management:

• Develop and stick to a consistent policy
• Be transparent with your workers
• Listen to your workers
• Be attentive to the particular risk factors affecting your workplace
• Err on the side of caution
• Be prepared to offer individual accommodations

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Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.

This post does not contain legal advice, but only general legal information.  It does not create a solicitor-client relationship with any readers.  If you have a legal issue or potential issue, please consult a lawyer.