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No Charter right to be maskless in workplaces: lawyer

Employers need caution around layoffs, surveillance and constructive dismissals
Mask off bakery

Employees have no constitutional Charter right to go against an employer’s mandate that staff wear masks as part of pandemic safety measures, a Vancouver lawyer said Nov. 5.

Most employers have put into company policies that employees must wear masks in workplace common areas, Clark Wilson firm lawyer Andrea Raso said.

“You are absolutely within your rights to make this decision,” Raso said of employers mandating mask use.

Raso and colleague Debbie Preston of the firm’s employment and labour group discussed the issue as well as other pandemic issues including layoffs, working from home, leaves of absence and employee surveillance.

Layoffs and leaves

Raso said employees could be considered laid off if they are earning less than 50% of their regular weekly wage. However, they continue to be considered employed and their benefits and entitlements are protected.

Layoffs can only be done with employee agreement and nothing in law says an employer has a right to lay employees off.

She said unless a layoff is agreed to in advance, it can be considered a constructive dismissal leaving an employer vulnerable to legal action.

But, she said, “Most employees are going to accept the layoff because they have very little choice.”

As a situation moves forward and an employer wants to recall an employee, sufficient notice must be given. An employer cannot terminate someone if they call them in the morning and expect the employee to come in.

As well, Raso explained, employers should be aware that substantially changing a laid-off employee’s terms of employment could be considered constructive dismissal.

But, she added, “if an employee refuses to return to work, they will be deemed to have resigned from employment.”

For employees, if there is no recall for 13 weeks, they are entitled to a termination notice. That period had been set at 24 weeks earlier in the year but returned to 13 in August.

In workplaces governed by federal standards, Raso said, an employee may stay away from work on sick leave if they test positive for COVID-19, have symptoms, have a positive family member or are caring for someone with a high-risk or severe illness.

“The government said there does not need to be medical proof,” she said.

In B.C., an employee may be on leave if tested positive or in quarantine, the employer has directed them not to work, they are caring for someone or if they cannot return to B.C.

“Employers can request proof but not medical,” Raso said. “I don’t know what other proof there might be other than a note from their mother.”

However, when an employer has done the work to ensure the safety of a workplace, that refusal can be considered misconduct or a resignation. Such a situation, however, could lead to a WorkSafeBC investigation.

Security and surveillance

With so many people working from home, Preston said workplace surveillance, privacy and other policies come into play.

Employees working from their dens or kitchen tables should be ensuring office equipment is protected. Preston said people should shut down or logoff devices and ensure all are password protected – including USBs.

“Make sure your security software is up to date,” Preston said, noting employers should ensure employees confirm home insurance coverage.

And, for the most part, home workers have some expectation of privacy as they work.

Anne Amos-Stewart said technology and surveillance has become a timely topic with people at home with criminal, privacy and employment and labour law coming into play.

She said employees need to be aware if they are being monitored as they work. However, she added, there is a degree of privacy employees are entitled to and breaching that can lead to legal problems.

The best practice, she said to ensure policies are in place on such issues and that everyone understands such policies.

“The policy should be reasonable,” she said. “Does the employer have a good reason to take random screenshots of the employee’s computer, for example?”

“If there is no policy in place it’s not fatal but it’s not great,” Amos-Stewart said.

Duty to accommodate and expenses

Companies also have a duty to accommodate those working from home when people are looking after family members. She said human rights law around family status could kick into play. Preston said modifying duties or reducing scope of work may be an option.

“Putting an employee on sick leave should be the last option,” she said.

When it comes to expense employees incur while working from home, employers should consider what benefit they receive from the expenses being incurred.

“Employers can’t make employees pay for home office expenses,” she said.