Omicron: How to return to work safely

As Omicron lurks in the background, employers and employees are monitoring the situation with breath held. All hopes were for a swift and safe return to work before 2022 – but the new variant is slowly dampening out any idea of an in-office New Year. Michelle McKinnon, associate at McMillan, and Dianne Rideout, partner and head of labour & employment group in Vancouver, told HRD what this new variant could mean for employers going into 2022 – and offered some advice on how to approach vaccines, policy changes, and rising safety concerns.

“The Omicron variant, which has now been detected in Canada, has once again raised concerns about the possibility of another wave and further restrictions,” she explained. “Employers are also considering how the possibility of a new wave might impact their workplaces and what steps they can or should take to minimize the risk of transmission in the workplace to protect the health and safety of employees.”

 According to McKinnon and Rideout, there’s a few things for employers to consider when thinking about rolling out a mandated vaccination policy – starting with a safe return to work, whenever that may be.

Return to work

 “Many employers have mandated a return to work for employees on the assumption that infections are on the decline and the overall outlook improving for workplaces,” explained Rideout. “We don’t know yet what the impact of Omicron will be on infection rates and new restrictions, but employers should keep an eye on Public Health Orders that may reinstate restrictions in the workplace, such as mandatory masking, daily health screening, testing, and physical distancing requirements. These COVID-19 safety measures are currently not mandated in BC workplaces, but they remain applicable in certain other Canadian provinces.”

Essentially, employers should review their COVID-19 policies to ensure they are up to date and compliant with Public Health Orders. Leaders should also provide training to employees in the office to ensure they’re aware of the COVID-19 safety measures in the workplace and what’s required of them.

“If we do see a rise in infections as a result of Omicron, employers may want to consider whether mandating a return to work is necessary,” explained McKinnon. “The best way to avoid the spread of infections in the workplace is to avoid contact between employees. If employees are able to work from home without that impacting the employer’s business, that may be the best short-term solution.”

Mandatory vaccination policies

 Lots of Canadian employers have already adopted a mandatory vaccination policy or are considering adopting such a policy. Many employers are mandating vaccination as a condition of employees returning to work.

“There is nothing legally prohibiting an employer from establishing and implementing a mandatory vaccination policy,” Rideout told HRD. “Employers in non-unionized workplaces have the right to manage their workplaces as they see fit, including implementing policies. A mandatory vaccination policy however does come with risks, including privacy concerns, human rights issues, constructive dismissal claims, and potential class actions if it is later determined that the COVID-19 vaccine has long-term side effects. A mandatory vaccination policy is also more likely to be considered reasonable if it provides alternatives to getting vaccinated. For example, if employees are able to work from home without disrupting an employer’s business, then an employer can allow employees to work from home as an alternative to get vaccinated.”

 From a human rights perspective, employers may have a duty to accommodate an employee who cannot get vaccinated for religious, medical or other reasons based on legitimate human rights grounds. A mandatory vaccination policy should address in what circumstances the duty to accommodate may arise and how an employer will address requests for accommodation. The accommodation provided to an employee will depend on the circumstances, but could regular testing, masking and social distancing measures, and remote work options.

 “Employees should also be mindful of privacy risks,” Rideout told HRD. “Some provinces (such as BC, Alberta and Quebec) have privacy legislation that restricts an employer’s ability to collect, use and disclose personal health information (i.e. vaccination status information). These privacy risks are complex and legal advice should be sought before collecting, using and/or disclosing personal health information of employees.”

Remote working

 For employers who will continue to have employees working remotely, McKinnon recommends the following:

(a) Remote working policy for existing employees

 It is clear that the pandemic is not behind us as new variants emerge. Remote working will likely continue to be a reality in many workplaces for the foreseeable future. Having a proper remote working policy in place can address issues like the employer’s right to mandate a return to the office (i.e. remote working is not a term and condition of an employee’s employment), an employer’s and employee’s obligations with respect to health and safety in the remote workspace (in some Canadian jurisdictions, such as BC, an employer’s health and safety obligations extend to a remote workspace), and work productivity and performance.

 An employer need not amend employment agreements for existing employees to address these issues.

(b) Employment agreements for new employees employed on a remote working basis

 Many employers are also hiring new employees on a temporary or remote working basis. For new employees, we would recommend employers address remote working in the employment contract. The employment contract should include provisions that deal with the following:

The worker will be permitted to work from a remote location in a particular province or territory. The employment contract should also expressly provide that the worker will not be permitted to work remotely from a different province or territory, without the employer’s express written approval. This is important because the law differs between Canadian provinces/territories and it is the law of the province/territory from where the employee is physically working that will govern the employment relationship.

• The employment contract should also specify whether the remote working arrangement will be permanent or temporary, or whether the worker will have a hybrid working arrangement whereby the worker will work in both an office and remote location.
• The remote location must at all times comply with applicable health and safety laws, and must be approved by the employer.
• The ability to work from home is not a condition of the worker’s employment, and may be terminated by the employer at any time and for any reason, including if the worker fails to maintain the remote location in accordance with health and safety laws (and any other legal requirements and employer policies and procedures).