Alberta will be entering Stage 3 of its Alberta’s Open for Summer Plan on July 1, 2021. This is Alberta’s final stage in its reopening plan and will result in nearly all current COVID-19 related public health restrictions implemented by Alberta Health being lifted. Isolation requirements for confirmed cases of COVID-19, and some protective measures in continuing care settings, will remain in place in addition to a requirement to mask in taxis, ride-share vehicles, and while using public transportation. While the details of the reopening plan have yet to be released in detail, there will be many key issues that employers will need to address based on the many challenges they will continue to face in the coming months.
COVID-19: Where Are We Now? Getting There, But not Quite There
For one, COVID-19 has not disappeared, and will not disappear anytime soon. Although Albertans can breathe a sigh of relief as the total number of vaccinated residents increases, many have exercised their right not to be vaccinated, and COVID-19 variants still pose significant risks to public safety. Alberta continues to combat cases of the Delta variant, and at the time of writing this article, Alberta has over a thousand active variant COVID-19 cases. Employers operating in Calgary are also cautioned to note that the R value in Calgary is noticeably higher at 0.86 than the rest of the province (the R value describes whether cases are currently increasing, decreasing or staying the same, and tells us the average number of people that someone with COVID-19 will infect). While we do not intend to discourage employers from recalling employees back to the workplace, employers should take the time to implement a detailed and deliberate individualized “reopening” plan in light of the above. A rushed recall of employees could lead to negative impacts on health and safety, employee mental health, and otherwise cause increased general human resources issues.
Employee Vaccinations – Important in Combating COVID-19 and its Variants
Given the continuing threat posed by COVID-19, and especially COVID-19 variants, employers should not assume they and their employees are protected by an impenetrable shield as a result of the vaccine rollout. For starters, one or more of your employees may not have received a vaccine or a second dose. In this regard, we generally advise employers against implementing a policy requiring employees to disclose whether they have received a vaccine or not unless very unique and high-risk work conditions exist. Employees have a right to privacy in their personal information under the Personal Information Protection Act. Vaccination status is health information, and their right to privacy extends to an employee’s medical records.
While some workplaces may be able to justify such a policy as a necessary measure for the protection of employee and client health and safety, this will only apply in exceptional circumstances and it is not lawful or appropriate for the majority of workplaces. In any case, many employees will likely volunteer this information to management or their coworkers. Employers should be prepared to handle disputes between employees over vaccination – those who received a vaccination tend not to have much patience or tolerance for those that do not for ideological or other non-medical reasons. “Shaming” is a form of workplace harassment. Expectations around respect in the workplace policies should be communicated again and modelled by management team members. Those that are vaccinated may not enjoy the thought of being in close contact with coworkers who refused to be vaccinated and vice versa. Employers are also advised not to arbitrarily discriminate against an employee who has exercised his or her right not to be vaccinated. Unless there is a bona fide workplace need for vaccination, employees are entitled to make the choice for themselves. Employers that act offside of human rights legislative requirements can face significant liability.
Hazard Assessments – Update Them, Ensure Adequate Controls Remain in Place
Furthermore, regardless of vaccination rates, employers still have a legislative obligation to protect the health and safety of their employees. As part of this obligation, employers should update their workplace COVID-19 hazard assessments to ensure that they are appropriate for their region and workplace before remobilizing employees, and to continue conducting hazard assessments on a regular basis. Each employer will be met with its own distinct challenges, and the steps necessary to protect employee and client or customer safety will vary in different environments. Reopening will likely look significantly different for a retail provider in Calgary than it will for a phone support service team in Airdrie or Leduc.
Return to Work Accommodations
Employers should also expect some employees to raise concerns in the face of a return to the workplace. The lifting of Alberta’s public health orders does not relieve an employer from its duty to accommodate employees on an individualized basis. Some employees may request the ability to continue to work from home on a part or full-time basis. Others may request specific accommodations in the workplace, including specialized barriers or personal protective equipment – or a requirement that other employees continue to wear masks in their presence. Employers are cautioned against refusing such requests out of hand on a generalized or arbitrary basis. If the employee has a legitimate reason for requesting accommodation, such as a compromised immune system, employers have a duty under human rights legislation to consider the employee’s request and assess whether there is a protected ground, like disability, at play that triggers a duty to accommodate up to the point of undue hardship. While some requests may in fact result in undue hardship, or the necessity to place an employee on an unpaid leave of absence while cases of COVID-19 continue to decline and/or vaccines improve further, employers should not rush to conclusions without conducting an appropriate assessment in the circumstances. It may be necessary to seek the assistance of legal counsel.
Similarly, employers should consider allowing employees to continue to wear masks if they choose to do so for their own sense of well-being. Many employees will be returning to the workplace for the first time in many months and may not feel immediately comfortable working in close quarters with others without the barrier of a face mask – whether or not it provides any real protection to them if they are the only ones wearing them and the masks are not PPE grade. On the other hand, employers are cautioned against mandating masks where no provincial order or city by-law requires them. Doing so will likely lead to a pushback back from employees and may be considered unreasonable in the circumstances if it leads to disciplinary action (including termination). To combat this potential, if an employer will be requiring employees to continue to wear masks, they should have a clear, safety-based rationale to support its work rule and commit to revisiting it at reasonable intervals to see if it is still warranted. A prime example would be requiring masks to continue to be worn for employees being bussed to work locations.
Calgary employers should also note that the Calgary city council face mask bylaw will remain in effect until at least July 5, 2021. However, it is quite likely if COVID-19 positive case numbers stay low that it will end on July 5, 2021. In contrast, the City of Edmonton will be ending its (by-law) requirement for masking on July 1, 2021, which aligns with the Province’s approach. Calgary’s face mask bylaw requires a person to wear a face covering in a public premises, which is defined as a building or enclosed area to which members of the public have access as of right or by express or implied invitation (but excludes any premises for which there is an enrolment or membership requirement in order to access it). While there are a limited number of exemptions to the bylaw, most Calgary employers will be required to have their employees continue to wear masks until at least July 5, 2021, unless their premises are not open to the public.
Remote Work – Permissive, Mandatory, a Hybrid or No More?
Employers should also be mindful of the attachment that many employees have formed to remote work. While countless studies have detailed the benefits and drawbacks of remote work, others have gone so far as to suggest that many employees would quit their jobs if they were required to return to the office on a permanent full-time basis. Further still, many employees are placing more of an emphasis on mental health relative to the workplace. Employees want to know that there are employer supports for their mental health and that their employer is taking steps to alleviate mental health issues where it reasonably can. Perhaps a hybrid model of remote and in-office work is right for your workplace or certain subsets of your employees. In any case, each workplace will have to evaluate what makes the most sense for it, taking into consideration the type of work done, the region it operates in, and how well (or not so well) its employees have worked remotely over the past 18 months. If you decide it is necessary to remobilize everyone back on a permanent full-time basis, we would advise providing employees with as much advance notice as possible, and easing them into their new reality. This is especially true for those employees that have been working remotely in one capacity or another since March 2020. In our experience, many employers will be remobilizing to the workplace after Labour Day in September, and will be incrementally ramping up over the Summer to allow employee acclimation. Others will just be starting to ramp up after that long week-end. Whatever approach you chose as an employer, we recommend that it be done thoughtfully, carefully, and with employee well-being at the forefront of the discussion as part of the business needs discussion.
If you have any questions regarding the above, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s other COVID-19 resources.