One year ago, hosting a pizza party with co-workers or showing up to work with stomach bug symptoms were unthinkable in terms of fireable offences.
But legal suits based on such incidents are now before the courts as COVID-19 upends the way managers enforce health mandates and discipline employees.
Like politicians and other high profile individuals who have recently been caught travelling in defiance of regional health orders, rank and file employees are now facing career consequences for risky behaviour that would otherwise go unnoticed.
A recent example is a neonatal intensive care nurse from London, Ont., who was fired on Jan. 19 after speaking at an anti-lockdown rally in Washington, D.C. In a statement, the London Health Sciences Centre said it suspended Kristen Nagle without pay in November for actions "not aligned" with its values and then terminated her after an internal investigation.
The case reflects the growing issue amid the pandemic of whether someone’s behaviour is a risk to the employer’s reputation.
“Things travel so fast on social media,” says Danica McLellan, an Alberta-based employment lawyer at Neuman Thompson. “Employers are definitely crafting policies to make sure that they're getting ahead of these sorts of issues.”
McLellan says the starting point for an employer to look at your off-duty conduct is whether there’s a connection to the workplace.
“For example … two employees go to the bar and they get into a fight. Or an employee sexually harasses another colleague. There's a nexus, a connection to the workplace,” says McLellan. “Another one is if an incident occurs on the property, but not during working hours. Two people get into a dust-up in a parking lot, or someone smoking weed in a parking lot.”
There are limits to what your employer can fire you for when it comes to your off-duty behaviour. For example, getting pregnant or attending religious festivals may be protected under human rights laws.
“If someone gets a DUI, and the DUI doesn't have any connection to the employment, that might not be grounds for discipline,” says McLellan. “If it's just something that an employer merely disapproved of — you smoke and your employer doesn't like smokers — well, what you do on your own time is sort of your business in that case."
Some employers have built screening for risky behaviour into their workplace policies with things like COVID-19 symptom questionnaires that ask about travel. But whether or not your workplace has a policy that explicitly prohibits international travel or breaking public health guidelines, your boss can still take action on your risky behaviour under the right circumstances, says Sandra Guarascio, a lawyer at Roper Greyell who practises in British Columbia.
That’s because workplace lawyers can rely on a seminal 1967 legal case, Millhaven Fibres Limited v. O.C.A.W., Local 9-670, which says your boss must prove at least one of five factors before disciplining an employee for off-duty conduct, says Nancy Barteaux, founder of Barteaux Labour and Employment Lawyers in Atlantic Canada.
Those five factors boil down to: whether the employee’s conduct harms the company’s reputation or product; whether the employee is unable to perform their duties satisfactorily; whether other employees will refuse, be reluctant or be unable to work with you; whether the employee is guilty of a serious breach of the Criminal Code; or whether the employee’s conduct makes it difficult for the workplace to operate effectively.
While the COVID-19 pandemic hasn’t changed these legal principles, it has expanded the conduct that falls under these five categories, says Guarascio.
“What was previously normal behaviour, like travelling during holidays, that can now expose a workplace to both significant safety concerns — which would impact operations and other employees — and also reputational risks,” says Guarascio.
“That would have an impact, potentially, on the public's willingness to engage with a service provider or an organization.”
Still, every case for discipline or dismissal has a unique context in the eyes of the law — for instance, McLellan says that an employee’s role at the organization, such as being in a leadership role, or having access to the till or contact with customers, could all be considered. A unionized workplace might need to meet a higher bar of just cause for dismissal, while an non-unionized shops could let someone go without cause and add a notice or severance payment, McLellan says.
Although your boss does have some legal power without a COVID-19 workplace policy, many provinces require workplaces to have a COVID-19 plan anyway, notes McLellan.
“In the context of a situation where an employer is dealing with employee complaints relating to, another employee engaging in risky behaviour, they can really rely on the policies,” says Nadia Zaman, a lawyer at Rudner Law who practises in Ontario.
“Employers will have a progressive discipline policy … a verbal warning, and then a written warning, suspension, etc.”
Zaman said there is recourse for a worker who feels a fellow employee is bringing a COVID-19 health risk to the physical workplace through dangerous off-duty conduct.
“The employee can refuse to work if there are reasonable and legitimate grounds for them to believe that there's a safety risk in the workplace,” says Zaman.
“Once the employee reports their safety concerns, the employer is then required to investigate the situation and advise them whether the safety risk has been resolved or not. And if the employee continues to believe there's a safety concern, the Ministry of Labour can be asked to come in to investigate.”
This report by The Canadian Press was first published Jan. 26, 2021.
Anita Balakrishnan, The Canadian Press