At a press conference on December 14, 2021, the Minister of Health and Social Services, Christian Dubé, announced new public health guidelines in response to the rise in COVID-19 cases in Quebec and the arrival of the Omicron variant—a variant two to three times more contagious than the earlier Delta variant— in Ontario. Among other responses, the government is asking employers to encourage employees to work from home again. The Treasury Board has already instructed all its employees to work from home.
What does this mean for Quebec employers? And what to do if the work cannot be done from home?
Whether work is performed remotely or in person, employers are responsible for their employees’ health and safety. We recall that the Administrative Labour Tribunal has already recognized COVID-19 infection as an employment injury,1 a decision that sends a clear message to employers regarding their responsibility during this pandemic. Employers must have safeguards in place for their employees, and, in light of the new government guidelines, those who can do so should prioritize working from home for the time being. These employers may also want to review or have someone review their work-from-home policy, which has its own set of legal implications.2
Challenges for SMEs
François Vincent, Regional Vice-President (Quebec) of the Canadian Federation of Independent Business (CFIB), expressed concern about this development, noting that 64% of the province’s SMEs cannot offer remote work, just based on their business model. According to Mr. Vincent, whose comments appeared in La Presse, it is still possible to ensure the health and safety of workers in the physical workplace, “given the high vaccination rate and all the measures companies have taken, including some that go above and beyond the directives.” (Our translation)
Screening or vaccination?
For employers whose operations require a physical presence in the workplace, it is worth asking which methods to prioritize to ensure all workers’ safety. A growing number of employers have instituted mandatory vaccination or screening policies. Recently, a grievance arbitrator upheld the legitimacy of a vaccination policy while also recognizing that disclosing a person’s vaccination status is an invasion of privacy.3 In some situations, screening tests could provide an alternative to mandatory vaccination, especially since the tests are generally considered less intrusive than vaccination. However, it remains to be seen how effective these are at preventing infections in the workplace, considering that the Omicron variant is much more contagious and that these tests have a lower accuracy and reliability rate than PCR tests.
Regardless of the mode of work (remote or in-person) and the safeguards in place, employers are still responsible for protecting their employees. There are situations in which an employer may be held responsible for a case of COVID-19 contracted at work. Prioritizing compliance with the new governmental directives is important and, if the work cannot be performed remotely, reviewing the safeguards is a must.
1 Neshatafshari et Hôpital Maisonneuve-Rosemont, 2021 QCTAT 5751 (CanLII).
2 Marie-Hélène Proulx, Un nid de chicanes, L’Actualité, August 2020.
3 Union des employés et employées de service, section locale 800 c. Services ménagers Roy ltée., 2021 CanLII 114756 (QC SAT).