You’ve been through a lot in 2020. Revenue losses, lockdowns, dealing with layoffs, work refusals, health and safety expenses, and keeping up with ever-increasing restrictions and measures.
Adapting to the new COVID normal has been quite an ordeal, especially for small business owners.
The last thing you need right now is the stress of having to dealing with a legal dispute. Here are 4 types of claims that you could easily avoid:
Health and safety violation claims
Negligence related to health and safety measures in the workplace could prove costly. You could face huge fines or even temporary closure if a safety inspection finds your COVID-19 measures lacking.
Under the law, it is the employer’s duty to take all reasonable precautions for the health and safety of employees in the workplace. An outbreak at work or an employee getting infected due to gross negligence on your part could expose you to liability lawsuits (under Ontario’s Bill 218 and BC’s COVID-19 Related Measures Act). Not to mention the hit your business reputation would take from such an episode.
You must protect yourself from liability claims by developing clear COVID-19 policies and sharing them with your staff. It is crucial that you follow the public health measures issued by your province.
Constructive dismissal claims
The pandemic may have altered your business operations. As a result, you may need to change the employment terms of your staff, including hours of work, wages, location, and job responsibilities.
Before you do so, you must review employment contracts to see whether you have contractual rights to make such changes. Without contractual rights, major changes to terms of employment may amount to constructive dismissal. You’ll then have to pay damages to your employees.
You must get your staff’s consent in writing before moving forward with such changes.
A temporary lay-off may result in constructive dismissal if it’s not allowed by the employment contract. Unless the job contract gives you the right to temporarily layoff a worker, you are never completely protected. However, the practical risk of constructive dismissal claims due to temporary layoffs in a crisis like the present one is low. Still, we’d recommend that you include a lay-off clause in your employment contracts.
Please note that Ontario temporarily amended its ESA to suspend temporary layoffs and constructive dismissals during the COVID-19 period (March 1, 2020 to July 3, 2021).
Vaccine-related claims
Staff vaccinations will be a major concern for employers in the coming months. However, there are some legal considerations to take note of regarding vaccines in the workplace.
The government has not made the COVID-19 vaccine compulsory due to human rights reasons. You may put your business at risk of a human rights violation claim if you try to impose a mandatory COVID-19 vaccine policy in your workplace.
You cannot fire an employee for refusing the vaccine. Since there is no legislation to support such an action, you’d be inviting a wrongful dismissal claim.
Some employees may not get the vaccine due to medical reasons, such as an allergy to its ingredients or a pre-existing health issue. If you dismiss such employees, it could amount to discrimination under the human rights law.
You shouldn’t push your employees to get vaccinated either. If a worker later experiences side effects due to the vaccine, they may consider legal action against you for pressuring them to get it.
The best you can do is educate your staff on the benefits of the vaccine and encourage them to get it.
Discrimination claims
Recalling staff
When you reopen your business, you may not be able to recall your entire staff at once. When calling employees back in a phased manner, make sure you decide which ones to recall first based on objective criteria, such as:
- Seniority
- Performance (based on objective performance review information)
- Order of layoff
- Pre-COVID-19 regular work schedule
This will help reduce the risk of a discrimination claim. Under human rights legislation, you must not discriminate against your staff based on any protected ground, such as physical or mental disability, age, race, sex (including pregnancy), sexual orientation, religion. Please note that COVID-19 is a disability under the human rights legislation in Ontario, British Columbia, and Alberta.
Managing unvaccinated staff
Banning unvaccinated staff from the workplace till the pandemic is over is also fraught with legal risks. If the risk of virus transmission in the workplace is high and the levels of community spread are high as well, you may ask unvaccinated staff to go on leave or work from home. But you won’t be able to do so once the restrictions are eased and the risks are not as high.
You can still protect your workplace by ensuring unvaccinated staff coming to work continue to follow health and safety guidelines.
Accommodating staff with childcare/caregiving responsibilities
You cannot fire an employee for refusing to return to work because they need to take care of their kids or elderly parents. If you do, you’d be exposing yourself to litigation.
As the employer, you have a duty to accommodate employees to the point of undue hardship. This applies to needs that relate to grounds of discrimination (which include ground of family status and disability). Employees who have children, but no childcare support are legally entitled to take an unpaid but job-protected leave from work.
The same duty to accommodate to the point of undue hardship applies to a remote work request from an employee with a disability. (A disability could include a medical condition that makes the employee vulnerable to COVID-19.)
Do you need employment law advice?
Staying on top of changing legislations can be difficult when you have a business to run.
Our experts can help you with any HR, health and safety, or employment law advice that you may need. We’ll make sure you avoid the hassle of any legal disputes. If you do face a claim, we’ll be right beside you to help you plan your next steps.
See how we have helped other small and medium businesses get their business compliant with provincial legislation.
