Howard Levitt: Employees vulnerable to COVID-19 will need greater accommodation from companies

But employees must continue working unless there is a legitimate and demonstrated reason not to.

To paraphrase George Orwell, all employees are entitled to a “safe” workplace. But some entitlements are greater than others.

Occupational health and safety law requires employers to take all reasonable steps to provide a safe workplace. But the duty does not stop there. It’s not enough for an employer to create a workplace that will be “reasonably” safe for the average worker and leave it at that for all. Human rights laws provide employees who are especially vulnerable a right to receive additional protections in the form of “workplace accommodations” — this is different from any right to remain home.

They are protected under the ground of “disability” by human rights legislation, when ordinary safety precautions are insufficient. As a pre-pandemic example, this could mean providing larger warning signs or wider paths to emergency exits in workplaces which include employees with physical or visual impairments.

As businesses reopen under the hovering threat of COVID-19, employers have scrubbed workplaces, erected physical barriers, and created policies for physical distancing. Everyone will smell faintly of Purell and must learn to smile with just their eyes above ubiquitous face masks.

Before calling it a day, employers must review their workforce and ask themselves if they need to do more. If any of their employees are at a high risk because of COVID-19, employers may be required to take additional steps to protect them.

Thanks to six-months of non-stop talking about COVID-19, most Canadians know which groups are exceptionally vulnerable to the virus: older employees, the morbidly obese, those with chronic health conditions such as heart disease or diabetes, and those with compromised immune systems.

These employees have twofold protections under the law. First, under health and safety legislation they can refuse any work that is “likely to endanger himself or herself,” as I have discussed in a previous column. Second, they can expect their employers to proactively create workplace accommodations that will prevent unsafe situations from arising.

The law does not demand employers be omniscient. An employer can’t accommodate an employee’s unique vulnerabilities if it’s unaware of them. If an employee is having health problems, he or she should tell the employer as clearly as possible what the problem is and why they are high risk.

Just because an employee claims to have a certain medical history does not provide them the right to dictate the terms of their employment. An employer can ask to see evidence of a claimed medical problem before agreeing to the specific accommodations and participate in deciding what they should be. In some cases, an employer may decide to simply accept a request in good faith, to preserve the employment relationship and because the accommodation is simple to provide.

After all, the type of accommodations that are required will likely be very similar to what Ontario businesses have already implemented. It may be enough to simply enhance the protections already in place: arrange for more frequent sanitization and additional distancing measure or continue to allow vulnerable employees to work from home or to work flexible hours.

But employers are entitled to expect employees to continue working unless there is a legitimate and demonstrated reason for not doing so.

Just because an employer has not received any requests for accommodations does not provide licence to sit passively by. If there are enough clues present that an accommodation might be necessary, an employer has a duty to proactively inquire into whether one should be provided and it can be a breach of human rights legislation if they fail to.

Sometimes the clues will be obvious. For instance, an employer will usually know an employee’s age or if the employee recently required a medical absence for a surgery or chemotherapy treatment. If that is the case, or the employer knows of any other reason why an employee might be vulnerable, the employer must investigate whether additional protections are necessary.

Any time an employer digs into an employee’s medical history, it should act as discreetly as possible, protecting their personal medical information.

Employers should not ask for more details than necessary to decide whether an accommodation is required. The information collected should not be disclosed to any more parties than necessary, and it should not be stored by the employer accessibly once the accommodation process is complete.

Once an employer has concluded that a particular employee is high risk, it must weigh whether the protective measures already in place are sufficient or if more are required. Employers and employees are expected to work together to arrive at a plan which provides adequate accommodation without causing the employer undue hardship.

In many cases, the measures already taken by an employer will be sufficient to protect both average and vulnerable employees.

However, employers cannot assume that this will be the case. The general duty to provide a reasonably safe workplace for all employees overlaps with, but is not identical to, the duty to accommodate vulnerable ones. Employers must take the necessary steps to satisfy both.

Got a question about employment law during COVID-19? Write to me at [email protected].

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.