The experts at Roper Greyell discuss return to work, key drivers in setting up the new normal, and mandatory vaccinations.
As the province slowly opens up, employers have several factors to consider in bringing employees back to work. Is it economically feasible? Do mental health concerns preclude a full return? Will the company require mandatory vaccinations for employees? The considerations may feel overwhelming, but the experts at Roper Greyell, a Vancouver-based employment law firm named one of the top 10 labour and employment boutique law firms in Canada, have some sound advice for getting started.
WorkSafeBC requires that employers act reasonably to ensure the safety of their employees, and the best evidence of due diligence is a comprehensive return to work (RTW) plan that employees are familiar with and understand.
“Some employees will be nervous about returning to public spaces, especially if they have been working from home for the past year or year and a half,” says Greg Heywood, founding partner at Roper Greyell. Heywood has 34 years’ experience as a labour litigator and provides strategic and practical advice to employers on labour and employment issues in the workplace. “It is best for all that they not be distracted about concerns regarding protocols at the workplace and that they return to work with full knowledge of the precautions that have been made and the procedures in place to ensure their safety.”
Employers are also required to comply with PHO orders and more specific WorkSafeBC requirements pertaining to COVID (chiefly the requirement to have a COVID-19 Safety Plan in place). Having a comprehensive RTW plan is going to be key to ensuring that these requirements are being recognized and adhered to.
“Every employer will need to have a plan that they can refer to and rules that are widely disseminated and acknowledged by their employees,” says Brandon Hillis, a partner at Roper Greyell, where he practises in all areas of labour, employment and human rights law in the workplace. “If for no other reason, this is to keep employees safe, healthy and productive and to ensure that employees are clear about the expectations of them, as well as their own responsibilities.”
Employers have some key drivers to address in terms of how and when to invite employees to return to work.
“For those businesses with minimal or alternative means of customer contact, the burning question will be, ‘to what degree do we want to bring our employees back to the office, and to what degree will employees want to continue to work remotely?’” Heywood says. “Office space in downtown Vancouver is expensive, and for professional firms like ours, I envision a hybrid arrangement where workers will book an office to use when they are in town, and otherwise, they will continue to work remotely.”
While many employers were, at least pre-pandemic, of the view that employees working from home are less productive, in many workplaces this was not proven to be true.
“Before requiring returns—or particularly, before requiring blanket, 100% returns—to the office, employers should ask how necessary such returns actually are,” Heywood says. “Employers should also consider the downsides of remote-work arrangements. Numerous reports over the past 15 or so months have suggested that employees working from home are suffering from increased burn-out and from the loss of connection with colleagues.”
“The challenge is maintaining the social relationships that are intertwined with our professional relationships,” Hillis says. “How do you maintain the culture that brought you to work at this place to begin with? What are the mental health issues that arise from remote work and are you able to notice when an issue arises?”
Employers must also consider whether they will require employees to be vaccinated. While many US colleges are requiring proof of vaccination to have access to on-campus classes, in Canada, vaccination is a personal choice, and there will be a significant minority of society that will not get vaccinated. That means employers will need a plan for how to deal with all employees, including the ones who are not vaccinated.
In April, the BC government passed legislation which entitles employees to paid vaccination leave and three paid sick days while awaiting COVID-19 test results, as well as government support to offset the cost of those paid sick days.
Employers must decide whether they will require proof that an employee is taking the time off to obtain a vaccination and address the privacy implications of collecting this information.
“From a policy perspective, it is in every employer’s interest to encourage its employees to get vaccinated,” Heywood says. “Hopefully, you have sufficient rapport with your employees that these paid leaves will occur with sufficient notice and without causing operational issues for the business. If the parties’ approach this in a collaborative manner, I have no doubt that these issues can be resolved.”
Employers considering a mandatory vaccination program first need to understand the implications.
“The ability of an employer to impose a mandatory vaccination policy is in flux as the science around the efficacy of the vaccinations is being better understood and we are getting information on how the vaccination affects a person’s ability to “shed” (or spread) the virus,” Hillis says.
Vaccination approvals focus on the effectiveness of the vaccination in protecting the person from infection and the absence of significant side effects, and at the time of development, very little was known about whether the vaccines would also inhibit the ability of a person to carry and spread the disease. That is changing with time, and it now appears that vaccinated people are far less likely to infect others, and their ability to “shed” the disease is significantly mitigated.
“This is one of the missing facts that now make the imposition of a mandatory vaccination policy more plausible in Canada,” Heywood says. “If such a policy is going to withstand scrutiny it must be carefully drafted and make accommodation for those who choose not to be vaccinated or have medical or religious reasons for not being vaccinated.”
The alternative to mandatory vaccinations could be flexible work arrangements. For instance, in previous pandemics (SARS), workers in the healthcare system who declined to take the vaccine were required to wear masks until the threat had subsided, whereas those who received the vaccination were not required to mask up.
“I think the big issue for employers in Canada is why be the first one as it will likely be challenged and you will bear the cost of litigation and the potential for damages,” Heywood says. “It is unlikely that any government will impose or legislate such a requirement, so the best course of action is wait to see if someone else paves that road for you, and if not, I would not recommend imposing a mandatory vaccination policy.”
For those who wish to forge the path, the possibilities are changing as the science comes clearer.
“Is it possible to draft such a policy and have it upheld by the Human Rights Tribunal and/or the courts?” Hillis says. “The odds are improving as the science of the vaccines is better understood.”
Learn more about Roper Greyell at ropergreyell.com.