CHAUDHRI: The workplace is a COVID battlefield

Sunira Chaudhri is an employment and labour lawyer and partner at Levitt LLP. She sheds light on some questions for employees during COVID-19.

Supplied photo / Levitt LLP

Are employers just getting it wrong when a COVID-19 case hits their workplace?

In the last few weeks, several news outlets reported on employees contracting COVID-19 right here in Ontario. On Sept. 4, the LCBO reported that an employee at a Scarborough store tested positive for COVID-19 on Sept. 2. It stated that the location was closed and would reopen the next day “subject to staff availability.” The announcement however gave no information about how other LCBO employees at the Scarborough location would be protected if they were exposed.

On Sept. 22, CP24 reported that an employee at Sephora at Yorkdale Mall and an employee at MAC cosmetics at Fairview Mall both tested positive for COVID-19 in recent days. Cadillac Fairview released a statement about the Sephora employee, but notably did not indicate when the employee was last at work. Again, the mall did not speak to how other Sephora employees would be protected going forward or if they would be subject to testing.

In a note to tenants, Yorkdale mall confirmed the MAC cosmetic employee was last at work on Sept. 14 and the store was closed for cleaning. It went on to confirm that all areas the employee had “contact” with inside the mall are also being cleaned.

Both malls, however remained open despite the obvious fact that these infected employees could have spread the virus to customers, other tenants and of course, other employees.

It is no secret that more young people are getting COVID-19 in Canada than ever before. In the recent uptick of cases, the Public Health Agency of Canada confirmed that people under 40 years of age account for over 62% of cases. Before we collectively jump to the presumption that poor handwashing and patio hopping is the cause of the spike in young people, consider instead the fact that more young people are simply more exposed and don’t have the luxury of staying home if they need to attend work or school; just like the young people working in retail chains like Sephora, MAC and the LCBO.

The question many employers are wrangling is how to respond when COVID hits their workplaces. This is not just an exercise in public relations, employers that fail to provide safe working environments may be subject to stiff penalties if employees are exposed to the virus due to employer conduct.

It’s important to understand your legal rights in the workplace during the COVID-19 pandemic.

Requiring an infected employee to test negative prior to returning to work makes eminent sense but does not go far enough. Like many students are required to do before returning to school after experiencing COVID-19 symptoms, employers should insist that all staff exposed to an infected employee get tested, and quickly. Not only does it make people safer, it lowers liability and increases employee morale. Clients will of course also prefer to work with employers that shut down for COVID-19 if there is a case in the workplace.

The Ontario government has announced that nearly 100 new health and safety inspectors will be hired to deal with COVID risks in the workplace and how employers are responding to COVID-19 outbreaks will now be subject to even greater scrutiny.

Shutting a business down for more several days can be annoying but not financially disastrous. Employees and consumers will feel much safer returning to the workplace knowing that each employee working, and servicing customers have tested negative following a COVID-19 case in the workplace.

On to your questions from this week:

Q. I am a tool and die maker and at the end of March the place I work for mostly shut down about 90% (over 100 people). At the beginning of June, they started calling people back to work. I went back for two months and then got let go again at the beginning of August supposedly because of no work. HR has ghosted me. I have tried a few times to contact them for an update and get no response. I then find out they only let 3 people go and called back other toolmakers in other departments. Can they do this?

A. Take a look, at what documentation you received in August. Was it a termination letter, an infectious disease emergency leave (IDEL) letter or a lay-off letter? Either way no contact from HR is not a good sign. It may well be that you are terminated and should obtain a termination package depending on your years of service and pay. If your HR is not responding to you, they may very well respond to a demand letter from a lawyer.

Q. I received an email from an employee saying that his friend contracted COVID-19 over the weekend, and he has now asked to stay home and take a COVID-19 test before returning to work. Do I need to let employees know?

A. It is wise for you to allow your employee stay home until he tests negative for COVID-19. Insist your employee take the test as quickly as possible and follow up with him to get the results. Ask the employee to confirm the last time he was at work and to provide a list of the employees and customers/clients he worked with that day. This way, if there is a positive test result you can report back to employees/clients who may have been in touch with this employee, and as my article today recommends, ask all of those who were exposed to get tested.

Send your questions to and it may be featured in a future column.

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