Labour laws haven’t changed in our province, but legal experts are already urging B.C. employers to be flexible and reasonable — while warning employees they may not be legally protected if they refuse work during the pandemic.
Many employers are grappling with how to reopen the economy under the province’s "Phase Two" plan while employees wait to see the conditions they’ll be expected to work under.
"Technically, if you want to maintain your employment and the employer says 'we’re reopening in this fashion,' as a general rule an employee would be at risk of being seen as quitting their employment if they choose to stay home,” said Vancouver-based litigator, Randy Kaardal. "However, an employee also has the right to refuse unsafe work."
Labour and employment lawyer, Dean Crawford, pointed to the system now in place to protect workers, who should feel free to discuss their workplace safety guidelines with their employer.
"WorkSafeBC requires every employer to have a plan for the safety of employees while COVID-19 is still a concern so if that employer has not developed a plan to maintain the safety of their employees during the pandemic, then that employee may well be entitled to refuse to work because it’s an unsafe workplace,” said Crawford.
They say workers should expect to see changes in their job sites, whether it’s in an office building or outside. Physical distancing, hygiene and frequent cleaning of surfaces are all in the guidelines established by the provincial health officer. Policies around staying home while sick are also likely to change based on the strong messaging from health officials.
But working in a cubicle or at a dedicated work station is one thing, interacting with multiple customers and in closer quarters prompt different considerations — especially if employees refuse work not based on the workplace, but living with or being in close contact with people vulnerable to COVID-19.
"Each employee is going to have to make their own decision and there’ll be a determination at some point if their decision is a reasonable one," said Kaardal. "I would hope that employers are flexible and somewhat understanding that if an employee says because of a weakened immune system or their home circumstance and they can’t attend work, there would be a way to have that employee on leave or work with them somehow."
The first step is talking to your boss if that’s your situation, and lawyers are already urging bosses to be flexible. But there are no guarantees.
"I think employers that take a hard-line position right now and say 'we’re terminating you for cause' or taking the position you’ve abandoned your employment (to safeguard a family member) are not going to see a lot of sympathy from the courts," said Crawford. "I think we’ve got to take this gradually and slowly and with a lot of caution and with some sympathy for people’s position."
With provincial health officer Dr. Bonnie Henry reminding businesses they aren't compelled or required to open as soon as they’re able, it’s likely that some companies will wait to learn from the mistakes and adaptations of the early openers — with consumers and workers alike figuring out their own comfort level based on workplace expectations and the rate of infection.
"I think there will be a lot of sympathy until we see how this second phase progresses," said Kaardal.