Howard Levitt: Employers must ensure safety but need not accommodate employee anxiety

When employees return to work, they will discover that health and safety will no longer be the unquestioned trump card

Workers can forget about their employers providing them with hazmat suits when they return to work.

As Canada battles record-breaking unemployment and previously unfathomable levels of national debt, our collective survival and recovery demands that we find the right balance between safety and economic security as we reopen our economy.

At the height of the pandemic, this balance was intensely tilted towards safety. As the world shut down, swathes of businesses closed or filed for bankruptcy. Hordes of employees were ordered to work from home, or not at all. The valiant few deemed sufficiently essential to work did so with great precautions.

With new daily case rates and death tolls dominating our news coverage and discourse, collective anxieties about the virus raged as contagiously as the virus itself. Our governments responded with extraordinary measures, and even changed the laws requiring many workers to stay home.

Employees became emboldened in ways they had not been before. Everything became a safety issue and a reason not to return to work. Ontario’s new workplace laws even changed to permit employees to take job-protected leaves related to the virus without having to provide any medical evidence. Indeed, in Ontario and other provinces, employers could suddenly not even request medical notes.

Faced with this overwhelming sentiment buttressed by new laws, employers had little recourse. Many sat idly by as their businesses disintegrated. At the risk of lawsuits, violating government orders, or subjecting themselves to public ostracization, many employers erred on the side of caution, acquiescing to every employee demand related to health and safety, no matter how harmful to the business.

Things have changed. While we are not out of the woods, new cases and deaths have declined dramatically in Canada. The provinces have responded by opening up economies with guarded optimism, and many employees are now returning to work.

When they do return, employees will discover that health and safety will no longer be the unquestioned trump card. While employers have always had a legal duty to keep employees safe, they will not be held to a standard of perfection on the heels of an unprecedented global health crisis. Employers must accommodate safety but need not accommodate anxiety.

To be sure, Ontario Premier Doug Ford recently announced that the province is considering legislation to protect businesses from lawsuits related to the spread of COVID-19. While this legislation is unlikely to protect companies who flagrantly disregard safety, the idea is that so long as an employer is acting reasonably, it should not be liable if an employee contracts the virus at work. In any event, that reflects the law.

Whether or not the legislation is enacted, employers still have legal responsibilities to protect employee safety. But unlike a lawsuit, where an employer can be sued for damages by an employee who contracts COVID-19, health and safety laws are more concerned with enforcing proper protocols than with compensating employees for individual health and safety infractions.

The major exception to this is where an employee has been punished, fired or intimidated as a result of requesting proper health and safety procedures. This is known as a “reprisal” and can entitle an employee to back wages, damages for loss of employment and in some circumstances, aggravated damages.

In Ontario, employees can file a reprisal application for free and the burden is on the employer to prove there was no reprisal. In light of numerous layoffs, many employees have been incentivized to claim that their layoff was as a result of making a health and safety complaint. Such an allegation turbocharges the comparatively pedestrian wrongful dismissal case.

Employees should be aware that a reprisal application is not a ticket to a large payout because they do not agree with their employer’s health and safety policies, as one employee recently learned.

Joseph Pezze, a mechanical technologist at Natural Resources Canada, discovered that a safety device used on a truck loading dock had been intentionally disabled. He reported the incident, took steps to have the device put back into proper operation, and took further steps, including an investigation and office training, to ensure such a problem would not recur.

Despite the NRC addressing the concern, Pezze was later overhead saying that management was “sweeping workplace safety under the rug”. He was delivered a letter of reprimand, so he filed a reprisal complaint alleging that the discipline was as result of enforcing workplace health and safety.

The adjudicator decided that that the letter of reprimand was issued solely for Pezze’s unprofessional comments, not because he was trying to enforce workplace safety. As the adjudicator noted, health and safety laws do not “protect employees who make disparaging comments about management.”

While many employees may be disgruntled about returning to workplaces which cannot absolutely guarantee they will not contract the virus, it does not provide licence to disparage their employers. What they are entitled to do is to express their concerns and/or require an investigation by a Ministry of Labour health and safety inspector. Employees who do so disrespectfully can still be disciplined.

Opening up the economy is proving a delicate dance for workplaces. It’s best to seek professional advice if you are unsure about whether your workplace has struck the right balance between safety and business necessity.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada