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COVID-19 and the Workplace: Frequently Asked Questions

Originally posted on March 3rd, 2020 by  at Global HR Lawyers – In A Flash – Matthews Dinsdale

The following provides general guidance to employers in dealing with the potential impacts of COVID-19 on the workplace. All should appreciate that this is a fluid situation and we will continue to update our clients as matters change. For specific issues, please speak with your Mathews Dinsdale lawyer.

Where can employers get regular updates on COVID-19?

The Government of Canada’s Public Health Agency

Infection Prevention and Control Canada (ipac)

Is COVID-19 in Canada?

As of March 3, 2020, COVID-19 has been confirmed in three provinces: British Columbia, Ontario and Quebec.

While the Public Health Agency of Canada expects those numbers to increase, without sustained human-to-human transmission, most Canadian employees are not at significant risk of infection.

Can an employer restrict international travel?

As of March 3, 2020, the Government of Canada has posted travel health notices for non-essential travel to areas of China, Hong Kong, Iran, Japan, Northern Italy, Singapore and South Korea due to the outbreak of COVID-19.

Based on these advisories, employers should restrict business travel to these areas. Should employees travel to these regions for person reasons, they should be advised that their ability to return to the workplace will be assessed upon their return to Canada.

Can an employer stop employees who travelled in an area affected by COVID-19 from returning to work?

Depending on where they have travelled and the nature of the employer’s business, an employer may assess risks in the circumstances, and could restrict an employee from immediately returning to the workplace. For example, an employer who operates a senior’s community will have a dramatically different assessment than an employer operating a warehouse.

Prior to an employee returning to work, they should be asked to confirm that they have no symptoms of illness. Again, depending on the workplace and the risk associated with potential COVID-19 exposure, the employee may be asked to self-isolate even absent symptoms depending on where they have travelled.

Patients with confirmed COVID-19 infection have reportedly had mild to severe respiratory illness with symptoms of fever, cough, and shortness of breath. If the employee has these symptoms, they should seek medical attention and should not be permitted to return to work until they are confirmed by medical testing to either not be suffering from COVID-19 or that they no longer carry the virus.

If an employer holds an employee without symptoms out of work, is there a requirement to still compensate the employee?

This will depend on the circumstances, including where the employee has travelled from, the nature of the specific workplace, alternatives available (i.e. working from home) and any potential collective agreement requirements. While each situation will have to be assessed individually, there will be circumstances where holding an employee out of service, without pay, may be deemed reasonable.

What if an employee has COVID-19 and cannot work?

Where an employee contracts COVID-19 and is unable to work, an employer must grant any applicable legislative leave to the employee, in addition to meeting any sick leave obligations outlined in employment agreements or collective agreements.

What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?

Employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under occupational health and safety legislation. Where an employee has a reasonable basis to believe that there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety, the employee may be able to refuse to attend work or perform certain duties.

In the event of a work refusal, the employer must respond in accordance with occupational health and safety legislation, which response will include an investigation into the concerns and, if appropriate, adopting measures to eliminate or reduce the workplace danger. This investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. No reprisal for properly exercising a health and safety right may occur.

Can an employer fire an employee if they contract COVID19?

No. Employers may not terminate an employee or otherwise discriminate against an employee due to physical disability (which includes certain illnesses) under human rights legislation.

What if an employer needs to replace sick employees on a temporary basis to operate?

An employer can hire employees on a temporary basis. An employer may also ask healthy employees to work additional hours, provided the employer is complying with legislative provisions regarding overtime and excessive hours of work.

The time to prepare for such a contingency is now: employers should be assessing how many employees they require to operate effectively and what will happen if a large number of employees are unable to attend work.

Can an employer force employees to work from home?

Whether or not an employer can direct all or a portion of its workforce to work from home will depend on the reasons for the request. For example, if there has been potential exposure to COVID-19 in the workplace, it may be reasonable to request certain employee self-isolate and work from home for at least a 14 day period.

Can an employer close their business due to COVID-19 outbreak?

An employer must ensure a safe working environment. Depending on the situation, it may be necessary to close a business location. An employer’s obligation for providing notice or pay in lieu of notice to employees will be governed by the specific facts of each case.

Do employers have to buy personal protective equipment for employees?

Employers have a duty to provide a safe working environment. If employees run the risk of becoming infected at work, the employer must provide personal protective equipment.

Previous Mathews Dinsdale articles on COVID-19

Workplace Pandemic Plans: What Employers Should Know

Novel Coronavirus: What Employers Need to Know

If you have any questions about this topic or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer.

Workplace Pandemic Plans: What Employers Should Know

Originally posted on February 27, 2020 by  at Global HR Lawyers – In A Flash – Matthews Dinsdale

With COVID-19 appearing prominently in news headlines these days, both federal and provincial governments are encouraging preparedness. What is an employer’s responsibility to employees in the event of wide-scale infection? What steps can an employer take in advance to ensure preparedness? While specific guidelines and responsibilities exist for those working in health care, an employer in any industry can benefit from having a workplace pandemic plan in place.

A pandemic is an epidemic crossing international boundaries. While the decision that a pandemic exists is made by the WHO, a high incidence of infection in Canada or a region of Canada could still lead to the need for extraordinary measures. In such circumstances, the responsible authority would be the Chief Public Health Officer and/or local authorities in affected provinces or territories.

In the event COVID19 spreads widely within Canada, employers have the same legal duties under occupational health and safety, employment standards and human rights legislation as they would with any other illness impacting employees. One of the primary considerations will be whether employees can reasonably refuse to attend work for safety reasons if and when COVID19 is present in the workplace.

Employers may also be subject to additional duties in the event that an outbreak of illness rises to the level of “emergency”. Every jurisdiction in Canada has legislation in place for emergency measures and some specifically contemplate public health emergencies (e.g. Ontario’s Health Protection and Promotion Act and Alberta’s Public Health Act). B.C.’s Public Health Act confers upon the provincial health officer special emergency powers regarding the reporting of personal information, which would apply in the event an emergency is declared. During an emergency, those powers would apply notwithstanding any applicable privacy legislation.

A comprehensive workplace pandemic plan should include the following elements, tailored to the particular needs of your organization, and developed in consultation with the joint occupational health and safety committee or worker’s representative, and union representative, where appropriate:

  • Leadership
    Ensure your organization is prepared to address the issue. Designate key employees who will manage the employer’s response to any pandemic. Make an actual plan to respond to the risk of a pandemic impacting the workplace.
  • Communication
    Consider what types of information you will need to obtain in the event of a pandemic and the information you will need to disseminate. Identify in advance where you will be able to find up-to-date and reliable information about a disease outbreak, including its current status, symptoms and prevention strategies, and where to receive medical care. Develop a strategy for communicating the necessary information to employees in a format that is easily accessible from home.
  • Risk Management and Containment
    Consider workplace strategies for reducing the spread of illness. Ensure basic supplies such as hand-hygiene products, tissues and receptacles are available in all locations.Consider policies that would be implemented in the event of a pandemic to limit the opportunities for disease transmission, such as employee “work from home” strategies, staggering shift starts and breaks to reduce the number of people in the workplace at a time, and arranging work stations to maintain distance between individuals.
  • Continuity
    Consider the potential impact of a pandemic on your business. Is demand for your products or services likely to increase or decrease? Identify the essential employees to meet the change in demand. Consider how a pandemic might affect your ability to obtain other critical inputs (e.g. shipping of raw materials). What if your employees are subject to a quarantine?  Does the business need to operate every day? Can it sustain a shutdown?Employee absenteeism is likely to be one of the biggest concerns. Employees may be sick themselves, may need leave to care for sick family members, or may wish to remain home due to fear of contracting illness. Predictions for absenteeism during a local outbreak vary by industry, but a general recommendation for employers is to plan for an absenteeism rate of between 20 to 25% during a peak two-week period of an outbreak in a specific area, with lower absenteeism in the weeks before and after.Refer to occupational health and safety legislation, employment standards legislation, as well as your organization’s own policies and collective agreement (if applicable), to determine what types of leave are available to employees, including the issue of work refusals.
  • Recovery
    The return to “business as usual” will likely take place gradually as the pandemic draws to an end. Consider phases of recovery in your workplace pandemic plan. Which aspects of your business are likely to return to normal first?

While this article provides the basics of developing a workplace pandemic plan, the World Health Organization has just published specific guidance on how to prevent the spread of COVID19 in the workplace and encourages employers to adopt these measures presently.

Additional planning tools are available to employers from federal and provincial governments in Canada. Once you and your team have developed your plan, set dates for its review. Consider testing some aspects of the plan as needed.

Though workplace pandemic plans, by design, contemplate the worst scenarios of disease outbreaks, employers can play a role in preventing the everyday spread of illness by encouraging good health practices among employees. For example, posters and employee handouts can be used for education and awareness at the workplace. Even in the absence of pandemic or severe outbreak, employee illness can have an impact on an employer’s business and operations. Efforts at preventing the spread of illness at the workplace may benefit employers before any extraordinary measures are required.

If you have any questions about this topic or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer.

 

This editorial is not intended as legal advice.  Any employer or organization seeking assistance should feel free to contact a Mathews Dinsdale lawyer for assistance.

 

An Amplification of HR Legal Trends from the Last Decade

In our ever-changing workforce, it’s more important than ever for employers to stay on top of HR trends and what legal implications they may have on their organization, workplace culture and overall brand. We had the chance to speak with Greg McGinnis, Partner at Matthews Dinsdale & Clark LLP, about upcoming trends in employment law. What we discovered was that the trends from the latter half of the last decade are amplifying. Read on to see how. 

Although there have been many societal shifts within the last few years, Greg comments that there really aren’t any new or radical changes in employment law, but rather previous trends are continuing. He does mention, however, that there’s a common theme or phenomenon happening as a result of previous trends, like the #MeToo movement, legalization of Cannabis and diversity in the workforce, which is fostering an increased demand for flexibility and zero tolerance for toxic workplaces. 

Flexibility and Accommodation

“The main trend, if I can call it that, is that people are looking for flexibility in their work. They’re looking for flexibility in terms of hours of work, days of work, time off when they need it. The big trend is that employees want their work to fit in with their lives, and so employers are increasingly having to accommodate that kind of flexibility. That comes in all kinds of different forms. One form would be people who have young children, who want the time for child care or to attend events in their kids’ lives. Then you also have, especially in Canada, a large population of people who come from other places originally and they travel, so they want to have longer periods of time off to visit family or just travel. There’s an increasing trend towards flexibility at work, where it could be accommodated.” 

“The idea that work is Monday to Friday, 9 to 5 and you better just show up – that concept has slowly been eroding for a long time and it’s continuing to erode. There are of course jobs where you need to be [at work] for certain time periods, but even then, people will want extended time off. We see this in every domain, from factory workers to office workers. People are demanding that their personal life and needs are reflected at work.” 

Zero Tolerance for Toxic Workplaces

As a result of the same societal factors that gave rise to the #MeToo movement, Greg has found that the number of complaints being made that require the employer to carry out investigations has significantly increased. “I would say the #MeToo movement is a reflection of the same underlying phenomenon that people aren’t prepared to be treated poorly or suffer in silence. There’s next to no tolerance for toxic workplace behaviour. It is increasingly important for employers to ensure their workplace provides a positive, constructive atmosphere for people to work in and if they don’t do it, they will be facing a requirement to invest in workplace investigations…There’s a whole raft of time-consuming expensive consequences that can result from not dealing with these problems.” 

Diversity 

Diversity is an important value for many organizations. In Greg’s experience, diversity hiring has to be managed effectively by most employers to ensure all job seekers are given an equal opportunity to join a positive workplace, but that’s not always easy to achieve and maintain once your workforce becomes diverse. “Diversity has an impact on workplace culture because when you have new people or experiences, people come to work with different cultural expectations or behaviours that may require an adjustment on the part of the employer.”

Once you recruit a diverse workforce, you need to ensure your policies are, and the workplace is, welcoming, accommodating and, again, flexible. “You have a diverse workforce, you need a diverse workforce, then you need to find ways to reconcile new and different expectations where you need to get the work done. The challenge of diversity is that you don’t really know what’s next, you have to adapt to the people you are employing the best you can, and they need to adapt to you too.” 

Cannabis: Biggest Issue That’s a Non-issue

Now that Cannabis has been legal in Canada for over a year, there have been minimal impacts on employment law, according to Greg. “Cannabis is the big nothing. It may have a long term impact, but the short term impact has been next to zero.”

“It’s not that all of a sudden people are bringing their drugs to work or consuming drugs in a different way. Most employers in anticipation of the legalization of cannabis took another look at their fitness for duty policies, and perhaps even their testing policies and gave some thought on how to approach that. Then legalization occurred and people braced themselves for the onslaught of stoners as if all of a sudden we were all going to turn into Cheech and Chong and it just didn’t happen!”

“Outside of safety-sensitive positions where someone could be seriously injured or killed or your actions could result in someone being seriously injured, or death or property damage, the issue of cannabis has not made any difference. And I think the reason for that is – cannabis is just one intoxicant. There’s a wide array of drugs out there, legal and illegal, and the legalization of cannabis has had a marginal impact on the way cannabis impairment, specifically, has been addressed when it’s been detected.”

Gig Economy

There were concerns about the ‘gig’ economy and the impact on the career prospects for millennial and Gen Z workers, but in regards to employment law, it’s really only made employers consider instituting more flexible work environments. 

“My perspective on the gig economy is that it’s provided opportunities for people to work in small amounts on their schedule that competes with the regular employment pool. So people who want more flexibility can get it by becoming a gig worker. I think the gig economy has expanded opportunities for people. [Employers] have to recognize that their employees can go and do consulting or gig work as an alternative to regular employment. So it forces more flexibility onto employers as well.” 

 

With the evolution and expansion of trends from the last few years, Greg notes that in the legal sphere, changes in the law are harder to predict. “The world of work is driven more by cultural change than by legal change. We’re not seeing a lot of radical legal changes now or anticipated in the future. The society is changing, so we have to respond to that.” It’s important that employers are staying on the cutting edge of emerging and continuing societal and workplace trends, especially when considering incoming talent will come into the workforce with new and sometimes challenging expectations for employers to meet. 


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TalentEgg launches Canada’s first candidate showcase featuring video profiles allowing students and grads to communicate strengths beyond the resume, improve visibility and directly connect to employers

FOR IMMEDIATE RELEASE Aug. 1, 2019 (Toronto, Canada). TalentEgg is pleased to announce Canada’s first talent marketplace featuring video-based features allowing candidates to introduce themselves beyond the resume and get noticed by employers. The platform helps Gen Y & Z candidates to tell their story in their own words by providing convenient, easy to use functionality that allows them to record their video introduction, upload their resume, and respond to interview requests from employers, from any device, on their schedule. With the TalentEgg Candidate Video Showcase, recruiters and employers now have the ability to search the job seekers’ video profiles with resumes and invite them to a video interview directly from the profile.

Video interviewing is now a mainstream assessment method in recruitment and student and grad job seekers are practicing and developing their digital interviewing skills while at University and College. Now they have an opportunity to put those skills to work in the real world and on their own terms on a platform where they can control their own message. The TalentEgg Candidate Video Showcase offers the candidate the ability to upload their resume and record a video introduction directly into their personal candidate profile. They can include a descriptive paragraph about themselves and credentials which are displayed to the employer and is searchable based on location, school, year of graduation, program of study and preferred industries, or by relevant keywords.

“Employers are looking for more efficient methods to recruit and interview graduates and improve campus recruiting efficiency. Students and grads are looking for new ways to get noticed by employers outside of traditional methods. Schools are looking for more ways to help their students and grads make the transition from school to work effectively by showcasing great candidates to employers of choice,” says Mary Barroll, President of TalentEgg. “TalentEgg’s Candidate Video Showcase brings all of these features and capabilities together at one digital job marketplace destination. We believe it’s a real win-win-win and an exceptional opportunity for schools, employers and job seekers alike, and a gamechanger in the campus recruitment space.”

“The resume is no longer an adequate tool for representing the potential that candidates can bring to the workplace. Job seekers are increasingly frustrated with their inability to differentiate themselves in their job search. They are eager to share more about themselves by answering questions and sharing other aspects of their character that, in the case of students and graduates, can supplement their sometimes limited work history,” says Catharine Fennell, CEO, videoBIO. “We are pleased to provide the video technology to support TalentEgg’s job marketplace to advance connections between employers and job seekers.”

To learn more and add a profile visit https://talentegg.ca/register

For more information please contact:

Mary Barroll
President, TalentEgg Inc.
Mary@talentegg.ca
416-358-3991

Natasha Reichen
VP of Operations, TalentEgg Inc.
Natasha@talentegg.ca
416-875-8055

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