Richard B. Johnson
There may be perceived tension between employers and employees during COVID-19, but in truth what we’ve experienced in the time since early 2020 is that employers and employees are more on the same page than we might expect during a pandemic.
We’re finding that a lot of employers and employees are putting in effort to work together toward mutually workable solutions.
One of the biggest shifts to come out of the pandemic is the mass adoption of remote work technologies. Naturally, as vaccines become more widely available and re-opening and recovery plans are developed and rolled out, a frequent question that we hear is: what’s going to happen to these kinds of flexible, remote work arrangements on a more permanent basis?
Can employers make vaccination mandatory?
While there is no statute in BC directly prohibiting employers from making vaccinations mandatory, Section 13 of the BC Human Rights Code prohibits discrimination on the basis of mental and physical disability. There are also strict requirements around obtaining consent for medical care or procedures, including vaccination. Requiring employees to be vaccinated to carry out their work is highly fact-specific and depends on the requirements of the job. If very narrow requirements are not met, forcing vaccination could run afoul of the terms of employment and be considered in violation of the Human Rights Code.
We advise employers to tread lightly around vaccination issues. There is nothing wrong with encouraging your employees to be vaccinated, referring them to reputable government resources regarding vaccines, or incentivizing vaccination by offering additional paid time off (beyond the 3 hours recently enacted in BC), but your employees should not feel as though they are compelled to get a vaccine.
The exception to this rule is in the case of essential workplaces where an outbreak could pose a more significant public health risk. Some frontline healthcare workers, for example, generally receive vaccinations for such diseases as tetanus, polio, diphtheria, and hepatitis. Required vaccinations are already the norm for these types of jobs.
Can employees take time off for vaccinations?
As of April 19, 2021, employers must provide all employees with up to 3 hours of paid time off for the purpose of getting vaccinated. Employees must be paid at least their hourly wage for each hour they are away up to a maximum of 3 hours. This 3-hour period also applies to subsequent vaccine doses in cases where booster shots are required.
What job protection is available in case I get COVID-19?
BC has implemented a policy of unpaid, job-protected leave for employees who are unable to work due to COVID-19 — whether the employee tests positive for COVID-19, or is required to self-isolate due to close contact with a confirmed or suspected case. Job-protected leave also covers employees who take time off work to assist a dependent getting vaccinated.
This job-protected leave is retroactive to January 27th, 2020, meaning if you as an employee had to take leave for any period of time after January 2020, you are protected from losing your job. As long as an employee has a bona-fide reason to be on COVID-19 leave, then the human rights code does not specify a limit for this leave. The employee can take as much time away from work as needed, provided there is a reasonable expectation that they will return to work.
If I am vaccinated, do I still need to wear a mask at work?
In BC, employers have a duty to protect the health and safety of all employees and, during COVID-19, to adhere to public health orders issued by Dr. Bonnie Henry. Since employers can’t ethically ask employees to provide proof of vaccination (except in special cases), masks should be worn in the workplace until the provincial health officer orders otherwise.
In the meantime until (if) we are all back at work, what remote work expenses can be covered by employers?
Employers are obligated to cover expenses for equipment that an employee would normally use for work at a shared office. Equipment like work laptops and phones, desks and office chairs, and any other equipment that the employee requires to continue working at home can be covered by employers.
Employers are encouraged to provide a stipend or an expense allowance for remote work equipment. Employees should also know that they are well within their rights to ask an employer to cover these types of expenses while they are working remotely.
The Bottom Line:
A lot of the new business considerations that have arisen out of the COVID-19 pandemic are considerations of human rights protections. Employers need to make an effort to understand and hear the concerns of their employees. Employees should not feel obligated to undergo or disclose medical treatment, or feel as though their presence at a physical workspace is valued above their personal health and safety.
The truth is that there is no precedent for what businesses and employees are facing through this pandemic, and continued open dialogue between employers and employees is the best way to weather the storm.