Hamilton

Your rights at work under COVID-19 — 8 questions for an expert in employment law

CBC Hamilton spoke, during a Facebook Live event Wednesday June 3, with employment law expert Adam Savaglio about returning to work or working from home amid COVID-19. Read what he had to say about your rights as an employee and as an employer under COVID-19.

Adam Savaglio is an employment law expert - here's what he says about your rights under COVID-19

CBC Hamilton spoke, during a Facebook Live event Wednesday June 3, with employment law expert Adam Savaglio about returning to work or working from home amid COVID-19. Read what he had to say about your rights as an employee and as an employer under COVID-19. 

Read the edited and abridged answers below or hit play above and watch the entire interview with the CBC's Conrad Collaco.

Adam Savaglio, lawyer, employment law expert 

What are you hearing from employers and workers right now?

It's really an unprecedented time. Employers want to know what their obligations are to employees. What are the health and safety protocols. This is a very fluid situation and because of that the questions from employers and workers are varying all the time.

If you have been working from home successfully, can your employer make you come back to work in the office?

My advice to employers is to delay having people return to workspaces as long as you can. If you are in an essential business then you have to return. It's easy to call back employees but now you have to make sure the workplace is safe for everyone who is returning. 
Adam Savaglio. (Scarfone Hawkins LLP)

Greg asks if his employer can force him to work extra days on the weekend in the midst of the pandemic?

Overtime is different. If the employee has worked overtime hours in the past it would be difficult to now say that you can't because of COVID-19. There's a grey area here.

If a persn doesn't feel safe going back to work what can they do? How can a worker ask an employer for accommodations?

A fear of COVID-19 is no right to refuse to return to work. The employer should be clear about the safety protocols. The employee has to consider those protocols and decide if they can be safe. If the answer is no then you can go to the Ministry of Labour. That's a really high threshold. Employers should be open about their cleaning protocols and if a worker tests positive they need to make sure they don't cover it up.

What if someone tests positive for COVID-19?

It gets dicey with competing rights. A worker's right to privacy against a worker's right to know if they are in a dangerous workplace. The health and safety of the workplace overrides the privacy issues. There needs to be a dialogue. You need to prove a reasonable danger to the Ministry. It's not just 'I feel unsafe.' Employers can have personal liability if they don't deal with health and safety issues.

What if you are a parent who doesn't have child care? Can you be forced to go back to work?

To me this situation triggers a family status ground for a case. If you are being recalled and you have no one able to take care of your kids, it's not possible. As an employer be very careful about who you recall. If you can work remotely, stay at home as long as you can. If there's one caregiver at home that's enough but it's fluid. Calling employees back is easy but you have to deal with their risks.

If you are going to be rigid with workers you are going to face risk and liability. You have to be careful of what you are asking for.

Does a worker have to tell an employer if they have COVID-19?

It's in the best interest of an employee to advise an employer of a positive test because of how easily the virus spreads. We've seen situations where people have lied about it to get out of work. The employer needs to be flexible with workers.

What if you have a compromised immune system?

You can't have an adverse action against you because of your disability. The employer has a duty to cooperate and has to evaluate if they can accommodate. It's important to bring that forward and have a dialogue with the employer. You've met your duty to cooperate and the employer has a duty to respond. You may have to rebuild the workplace around this pandemic.

Be flexible. It's really hard for both sides. Businesses are shut down and employees are scared. They don't want to infect their loved ones. It's really time to work together.

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