In this article, we answered the top questions recently received by our Employment & Labour Group from our Employer clients. We hope you find these answers timely and wish you a Safe & Happy Holidays!

Can an employer force employees to respect the public health orders this Holiday Season, or fire them if they don’t?

This issue would encompass situations where employees travel against public health recommendations, or gather with others during the Holidays violating the current Order. Employers can't force employees to follow the PHO, but they can instead consider ways to protect their workplace.

Can you fire employees who violate the Order? Where there are no human rights concerns, there is nothing preventing an employer from terminating a non-unionized employee without cause. The reason for termination doesn’t need to be disclosed to an employee, but the employer must ensure appropriate notice or pay in lieu is provided depending on the employee’s Employment Contract, years of service, position, age, etc. There are only a few instances where the behaviour would support a termination for just cause (and no notice or severance pay) in our opinion.

However, the more practical approach we recommend is to simply have a discussion with your employees before the Holidays; make them aware of the current Public Health Orders and strongly encourage them to follow the orders for their own safety as well as their families and other employees. Highlight the consequences a workplace COVID outbreak would have on everyone.

If you’re aware of certain employees planning to get together with their families or travel outside of British Columbia, you can work with the employees and impose stricter screening measures during and following the Holiday Season, such as:

• Completing the COVID-19 self assessment form with them daily – see our example here;
• Asking to confirm if they came into contact with anyone exhibiting any cold/flu like symptoms at that time or after gathering took place;
• Taking their temperature prior to entering the workplace;
• Requiring them to work from home for 2 weeks upon their return.

We caution against requiring employees to take unpaid leaves or placing them on lay-offs in response to possible violations of Public Health Orders, as there is a risk of constructive dismissal claims.

Can a business require its customers to wear a mask?

Short answer: Yes, businesses can and should require customers (visitors) without exemptions and employees to wear a mask when inside “public indoor spaces.”

On November 24, 2020, British Columbia issued a Public Health Order requiring the use of face coverings (or masks) in all public indoor spaces in the province (the “Order”).

We highly recommend that all business owners and operators read the Order and assess its impact on their business, but a summary is provided below:

• Visitors must wear face coverings while inside an indoor public space;
• Face covering include non medical or medical mask, or tightly woven fabric, covering both the nose and mouth (face shields are not sufficient);
• Section 2 of the Order outlines examples of indoor public spaces;
• Some examples of a person who is exempt from section 4 include:
• A person who is less than 12 years of age;
• A person unable to wear face coverings because of a physiological, behavioral or health condition, or physical, mental or cognitive impairment;
• A person who is unable to put on or remove a face covering without the assistance of another person;
• There are also temporary exemptions including for eating and drinking in a designated location, for receiving a personal service if removing the mask is necessary to receive the service, and for verifying a person’s identity;
• The Order only applies to visitors, and not to the business or its employees, except in public indoor spaces within the workplace where it applies to all (such as common areas, lunch room etc);
• This Order does not prevent a business from having additional requirements in relation to face coverings.

Although the Order is directed towards the public (visitors), businesses must follow enhanced health and safety protocols in the form of mandatory COVID-19 Safety Plans to protect workers and customers under the Workers Compensation Act and ensure that the risk of transmission of COVID-19 at workplaces is minimized.

WorkSafeBC expects businesses to incorporate the face coverings Order into their COVID-19 Safety Plans, and post signage at their place of business regarding mandatory face coverings and inform their visitors of the requirement. Read more and access sample poster from WorkSafeBC here.

What if a visitor refuses to wear a mask?

A business should be mindful of the exemptions to the mandatory mask policy noted above, especially the characteristics protected by the BC Human Rights Code. If a person claims exemption due to any of the following, a business must accommodate and not require the face covering to avoid violating their human rights:

• A person unable to wear face coverings because of a physiological, behavioral or health condition, or physical, mental or cognitive impairment;
• A person who is unable to put on or remove a face covering without the assistance of another person;

In these cases, businesses are not required to ask members of the public for proof that an exemption applies to them.

Businesses should treat those seeking accommodation with dignity, kindness and compassion. Additionally, businesses should inform and educate their employees of their obligations under the Human Rights Code. As the employees will likely be enforcing the mask-wearing, they need to be informed of the potential liability for discrimination.

While the businesses are to accommodate characteristics protected under the BC Human Rights Code, personal preferences are not protected by the same. If someone simply prefers not to wear a mask, an owner/operator can ask them to leave their private business/premises.

We suggest that you have free masks available to provide to customers who would like to visit your business but don’t have access to face coverings.

Can an employer force employees to get the COVID-19 vaccine?

This has been a hot topic in the last couple of weeks since the news of the first-approved vaccine. Under the current public health orders, employers cannot require employees to get vaccinated. However, please note that this could evolve once the vaccine is underway and available to the public at large.

Although employers can’t force employees to get the vaccine, they can require different work conditions for employees depending on whether or not they have been vaccinated. For example, employees who have not been vaccinated may be required to continue to work remotely, or to continue to complete COVID-19 daily assessments before entering the workplace, maintain distance and wear a mask at the workplace.

The more interesting question however is whether an employer can terminate an employee who refuses to get vaccinated against COVID-19. The answer to this is: it depends on the reason for the refusal. If the reason involves a protected ground under the BC Human Rights Code, such as medical or religious reasons, then the employee would have a human rights claim against an employer who fires them. However, if the reason is personal preference, then the employer can terminate an employee, provided they’re offered the appropriate notice or severance pay.

Some examples of protected grounds for refusing to take the vaccine would include:

• A person who has a severe allergy to a vaccine or an ingredient in it;
• A person who has a medical condition, disease or takes medicine that reacts with the vaccine or ingredients in it;
• Based on religious beliefs - belonging to a religious group that objects to vaccines

Another important question that comes to mind is whether an employer would even be entitled to ask an employee if they were vaccinated, or whether they would be able to ask for proof of vaccination. This answer would depend on the vaccination system that Canada and British Columbia will engage, and on balancing the privacy rights of Canadians and public safety during a pandemic.

What are an employer’s obligations for employees who continue to work from home?

Employers are responsible for ensuring the safety of their employees both at work and when working from home. WorkSafeBC recommends that every employer have a health and safety policy for working from home to help ensure their workspace is healthy and safe. The policy should address the following:

• At a minimum, this policy should require employees to conduct an assessment of their workplace and report any hazards to their manager.
• Other items to cover are protocols for emergency evacuation of the home, discussion of safe workplace practices, how to report any work-related incidents, and discussion of ergonomic considerations.
• Some health and safety requirements will need to be administered in different ways for at-home staff, including: outlining the role of the worker’s supervisor, determining how the employer will follow-up on reported incidents.

Employers should communicate regularly and educate employees on health and safety matters, as well as check in on their mental health especially for employees working alone or in isolation.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.