Employees have no constitutional right to violate an employer’s mandate to have employees wear masks as part of pandemic security measures, a Vancouver attorney said Thursday (Nov. 5).
Most employers have company policies that require employees to wear masks in public areas of the workplace, said Andrea Raso, an attorney with Clark Wilson’s law firm.
“You absolutely have the right to make that decision,” Raso said of employers who mandate the use of masks.
Raso and colleague Debbie Preston of the company’s employment and work group discussed the issue, as well as other pandemic issues, including layoffs, work from home, absenteeism and employee monitoring.
Layoffs and leaves
According to Raso, employees could be dismissed if they earn less than 50 percent of their regular weekly wages. However, they are still considered to be gainfully employed and their benefits and claims are protected.
Dismissals can only be made with the consent of the employees, and the law does not give an employer the right to fire employees.
She said if a layoff is not arranged in advance it can be viewed as a constructive layoff, leaving an employer vulnerable to legal action.
But she said, “Most employees will accept the layoff because they have very little choice.”
If a situation evolves and an employer wants to recall an employee, sufficient notice must be given. An employer cannot fire someone if they call them in the morning and expect the employee to come in.
According to Raso, employers should also be aware that a substantial change in the terms of employment of a laid-off worker can be considered a constructive layoff.
But she added, “If an employee refuses to return to work, it will be assumed that they have resigned from their employment.”
If employees have not received a callback for 13 weeks, they are entitled to a termination. That period had been set at 24 weeks at the beginning of the year, but returned to 13 in August.
According to Raso, at workplaces that are subject to federal standards, an employee can stay away from work on sick leave if they test positive for COVID-19, have symptoms, have a positive family member, or are around someone at high risk or a serious illness takes care .
“The government said there doesn’t have to be any medical evidence,” she said.
In BC, an employee can be on vacation if tested positive or quarantined. The employer instructed him not to work. He cares about someone or cannot return to BC
“Employers can ask for evidence, but not medical evidence,” Raso said. “I don’t know what other evidence there could be than a note from her mother.”
However, if an employer has done the job of ensuring job security, this refusal can be viewed as misconduct or resignation. However, such a situation could lead to a WorkSafeBC investigation.
Security and surveillance
With so many people working from home, workplace surveillance, privacy and other policies play a role, according to Preston.
Employees working from their dens or kitchen tables should ensure that office equipment is protected. Preston said people should shut down or log off devices and make sure they are all password protected – including USBs.
“Make sure your security software is up to date,” said Preston. Employers should ensure that employees certify home insurance coverage.
And for the most part, homeworkers expect some level of privacy at work.
Anne Amos-Stewart said technology and surveillance became a hot topic when people at home came into play with criminal, privacy, labor and labor laws.
She said employees need to know if they are being monitored while they are working. However, she added that there is a level of privacy and breach that can lead to legal issues.
Best practice, she said, is to make sure there are guidelines in place on such topics and that everyone understands such guidelines.
“The policy should be sensible,” she said. “Does the employer have a good reason, for example, to take random screenshots of the employee’s computer?”
“If there are no guidelines, it’s not fatal, but not great,” said Amos-Stewart.
Accommodation requirements and costs
Businesses also have an obligation to accommodate those who work from home when people are taking care of family members. She said the human rights law on marital status could come into play. Preston said changing duties or reducing the scope of work could be an option.
“An employee should be on sick leave should be the last option,” she said.
When it comes to the cost of working from home, employers should consider how they can benefit from the cost.
“Employers can’t get employees to pay for home office,” she said.