Critical Worker Exemption: Select Alberta Employees Can Attend at Work While COVID-19 Positive

On January 10, 2022, Alberta’s Chief Medical Officer of Health issued a new order exempting “critical workers” from Alberta’s public health isolation requirements for work-related purposes.

The applicability is limited to businesses with operations that are tied to the public interest. The Order stipulates that for a worker to be exempt from isolation, all of the following conditions must be met:

  1. the critical worker’s absence must cause a substantive disruption of service that would be harmful to the public;
  2. the critical worker’s duties are required to be completed on-site, in-person;
  3. services provided by the business or entity using the exemption are critical for the ongoing operation of services that impact the public interest;
  4. any substantive service disruption will be detrimental to the public interest;
  5. the person otherwise required to be in isolation is asymptomatic or mildly symptomatic; and
  6. all other means of staffing critical worker positions have been exhausted including examining whether other staff attending work can perform the critical worker’s duties or the work can remain on hold until the critical worker returns.

Further, the critical worker must be asymptomatic or mildly symptomatic and their continued absence must cause a substantive disruption of service.

Practically this means if operations can continue on without the employee’s presence, the exemption will not apply.

If activated, an employer must also have a plan in place to accommodate the presence of the critical worker, which includes, among other requirements, that the critical worker wear a medical mask at all times when in the same room as another person, even temporarily. Critical workers should also have their own separate workspaces that include a separate office, washroom, and kitchen.

Employers would be wise to approach exemptions pursuant to this Order cautiously. From a health and safety perspective, employers should consider whether the risk of having a critical worker who is COVID-19 positive and/or symptomatic in the workplace outweighs the operational disruption of that employee’s absence.  While the employee will be required to abide by the safety measures referenced above, the employee could unintentionally transmit the virus to other employees, both critical and non-critical, leading to further staff shortages and/or an outbreak.

Therefore, we recommend a thorough assessment of whether the employee’s absence can be mitigated by other means prior to having the employee return to work while still symptomatic or COVID-19 positive.

If you have any questions about this topic, other COVID-19 related questions, or any questions relating to workplace law generally, please do not hesitate to contact a Mathews Dinsdale lawyer or refer to the Firm’s other COVID-19 website resources.

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