Employer still not letting you work from home? How to navigate coronavirus office upheaval

Employment lawyer Ryan Watkins explains what kind of impact COVID-19 could have on your rights as an employer if you become sick.

In the last week, health officials across Canada have urged residents to stay at home, socially isolate as much as possible and limit the number of people they interact with.

Premiers in multiple provinces, including Ontario and Quebec, have emphasized that gatherings of over 50 people, and smaller group interactions, should not happen during the coronavirus pandemic.

But not every employer has followed government directions to allow staff to work from home or to close shop if being physically at work isn’t absolutely paramount — like those who work in essential services like at a hospital or grocery store. 

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The coronavirus pandemic has created many precarious employment situations, including reduced hours at a service job, needing extra time off to take care of children or not enough safety precautions being implemented if you do have to be at work. 

As a result, more than 500,000 people across the country have applied for Employment Insurance (EI) or financial assistance compared to 27,000 this time last year, Prime Minister Justin Trudeau said at a press conference on March 20. 

Rachel, who is in her 30s and works for a licensed cannabis store in Ontario, told Global News she’s concerned about her obligations to work physically at the store while it remains open. Her name has been changed due to fear of reprisal by her employer. 

She’s unsure if she qualifies for employment insurance after her hours were reduced this week to four to eight hours, down from a 40-hour work schedule. 

The store’s staff were given the option to opt-out of the single shift if they don’t feel comfortable — but she’s concerned that wouldn’t qualify as being laid off if she were to apply for assistance, she said.

“I have not seen anything that applies specifically to workers who are seeing their hours cut, yet are still technically employed,” she said,

There’s also “no financial support being offered by the companies themselves that are requiring the staff to come in,” she said. 

Opting out of her shift doesn’t feel like a genuine option as she’s concerned about keeping her job if she decides not to work, she said. 

While the store is limiting the number of customers to five and providing staff with hand sanitizer, she said, allowing groups to line-up for cannabis is making her feel unsafe at work.

“There are online platforms that do deliver and that are legal and are safe,” she said. “So for cannabis … physical stores remaining open is non-essential and not necessary.”

She and other staff members feel they are “being put in harm’s way” and many would like the store to close so they can feel like they will qualify for financial assistance, she said. 

Ideally, the store would close and they would know they have a job to return to while they apply for employment insurance, she explained. 

“It’s a high-stress scenario and allowing the staff to have this time and be able to apply for employment assistance would go a long way to feeling supported by their employers,” she said. 

Navigating employment concerns during a pandemic

Within the last week, new changes to laws have been implemented in an attempt to protect workers during this period, said Jennifer Heath, an employment lawyer at Piccolo Heath LLP, a Toronto-based firm.

The Ontario government passed Bill 186 yesterday, which allows employees to take an emergency leave due to an infectious disease emergency. 

The new rules are supposed to protect employees from losing their jobs if they are unable to work due to the pandemic, said Heath. 

In Rachel’s case, where an employer is reducing hours she can work, two months ago Heath would have said this could qualify as being constructively dismissed and she’d be entitled to a severance package. 

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“But the rules seemed to have changed now and the advice people are giving has changed,” she said.

Rachel could apply for a severance package, but she’d be waiting months for courts to open back up and they may not be sympathetic since many others are in her position, said Heath

“I believe if your wages have been reduced by more than 40 per cent, then you can qualify for ”, she said. The amount given back to you could be less than half your wages, because it’s capped at 55 per cent of your wages up to $573/week, but it will be something, she added.

“I suspect that there’s going to be more announcements about EI changes and what that will mean,” she said. “And there might be something different than EI that might help workers … the news just keeps coming fast and furious.”

What to do if you could work from home, but aren’t allowed 

As government directives quickly changed about how workplaces should be operating, many have not been prepared and there’s no legal obligation for an employer to allow employees to work remotely, said Heath. 

However, after health officials said to limit gatherings of over 50 people, a workplace that violates that could be creating a health and safety issue, she explained.

Refusing to let employees work from home at this point during a public health crisis would be the same as refusing to let staff come to work, she said. 

“This would be my advice to employers: if the employee has the ability to work from home, then you should do it,” she said.

“If I’m denying someone the ability to work from home when they’re able to, am I constructively dismissing them? Am I basically preventing them from earning money?”

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You are not obligated to take vacation days to cover this period of time, either — because the rules around employment insurance benefits have been expanded and protected leave is available, she explained. 

Canadians also have a right to refuse unsafe work, which includes a work environment that may not feel comfortable due to this pandemic, said Heath. Accommodations have been made this month, like a condo security guard who’s requested a two-metre barrier around their desk — a case Heath heard about this week.

Employers should be flexible during this period, including allowing workers to work different hours than they may be used to if they are having to watch their children, she said. 

“They should at this point to keep things going and keep people sane,” she said. 

How to talk to your workplace about accommodations 

Before pursuing legal options, there are ways to discuss office safety and shifting to a work-from-home environment if your employer is being stubborn, said Jane Watson, a human resources professional based in Toronto.

Watson has had several individuals reach out to her about issues with their employer not allowing them to work from home this week, she said.

“I heard a story from someone that they were expected to work in an open office environment of 150 people,” she said. After a week of public health announcements, there isn’t an excuse for maintaining that kind of office at this point, she explained.

It’s understandable that many businesses aren’t equipped to handle a mass migration to working from home overnight, but there are ways to assert your rights without feeling like you might put your job in jeopardy, she said.

If your employer is uninformed, bring forward some recommendations and solutions, she said. Showing your employer what other companies in your industry are doing currently to cope could change their minds, she explained.

“Within start-up worlds, leaders often place a lot of stock in what other companies are doing,” she said. “Companies that show they are taking care of people and ahead of the curve, that’s a way to capture your company’s attention.”

For those in a more influential role, take the time to speak to leadership and offer your help in planning for multiple scenarios that could occur as the pandemic continues. If all the employees at a smaller company get sick, that’s more detrimental than setting up proper work-from-home procedures, she said.

“Try having that conversation and see if that different approach will bring them along to make them realize, ‘oh wow, could actually really backfire’,” she said. 

Questions about COVID-19? Here are some things you need to know:

Health officials say the risk is low for Canadians but warn this could change quickly. They caution against all international travel. Returning travellers are asked to self-isolate for 14 days in case they develop symptoms and to prevent spreading the virus to others.

Symptoms can include fever, cough and difficulty breathing — very similar to a cold or flu. Some people can develop a more severe illness. People most at risk of this include older adults and people with severe chronic medical conditions like heart, lung or kidney disease. If you develop symptoms, contact public health authorities.

To prevent the virus from spreading, experts recommend frequent handwashing and coughing into your sleeve. And if you get sick, stay at home.

For full COVID-19 coverage from Global News, click here.

© 2020 Global News, a division of Corus Entertainment Inc.

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