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What you need to know about your rights when returning to work amid coronavirus pandemic

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Summary

Employment lawyer says the law is applied now the same way it was before the pandemic

Businesses have an obligation to provide a safe and healthy work environment

Employees are urged to flag any concerns with their employer, who is required to investigate the concern

VANCOUVER (NEWS 1130) – As COVID-19 restrictions start to lift, many people are eager to reopen the economy. But what happens if you’re called back to work before you feel it’s safe to do so?

The reality for businesses is there is an obligation to provide a safe and healthy work environment – that’s always the case – and during the pandemic, it centres on measures we’re now very familiar with; social distancing, sanitation, and frequent handwashing.

“Every employer in British Columbia and Canada-wide has a positive obligation to maintain a safe and healthy working environment,” Lia Moody, an employment lawyer and partner at Samfiru Tumarkin LLP in Vancouver, explains.

She notes every industry will have to be “creative” in how reopening looks, but adds they will be required to implement the aforementioned measures to get workers back on the job.

If you’re called back to work and feel those needs aren’t being met, Moody says you have options.

“You can refuse work that you believe to be unsafe. The way that you do that is that you contact your employer, let them know you have this concern. Your employer, under provincial legislation, is immediately mandated to conduct an investigation into your concern. If that’s not resolved to your satisfaction, then it can be escalated,” Moody explains, adding the next step in B.C. would be for a “re-do” of the investigation with either a union member, a member of the joint health-and-safety committee, or a third party.

If your concern is still not resolved after a second investigation, Moody says you can escalate your complaint to WorksafeBC, which would send a prevention officer to your workplace to determine if your place of employment is safe.

“In the end, if there’s determination that it’s a safe workplace, you have to go back to work,” she tells NEWS 1130. “If it’s an unsafe workplace, the prevention officer can shut down the company or the business, but it’s more likely that the prevention officer will make a couple of recommendations as to how to make it safe so that you can return to work, and feel good doing so.”

The provincial government last week unveiled its phased approach to restarting the economy, which includes the reopening of non-essential businesses in mid-May. Along with implementing recommendations around hygiene, cleaning, and social interactions, Premier John Horgan has also stressed the importance of setting clear policies for sick days, adding there should be “zero tolerance for illness in the workplace.”

Moody understands people and business owners alike are eager to get back on track, and says she’s already heard from people with concerns.

“This is the hot topic right now, as I’m sure you can imagine, and it should be,” she says. “We’re all in this together and I know that everyone is very anxious to get the economy up and running, but as much as it’s an employer’s obligation to maintain the workplace in a way that’s healthy and safe, we as employees going back to work have to ensure that we are sounding the alarm if it’s not.”

For employers who are getting set to welcome employees back to work, Moody says, again, nothing has changed with how employment law is applied.

If you’re looking to restructure your workplace — whether that’s by reducing hours, shifting worker responsibilities, or even cutting positions altogether — Moody notes there are some things to watch for.

“There is the risk that an employee is going to choose to construe that as constructive dismissal. By that I mean, when you make a sudden change as an employer to somebody’s essential term of their employment — like their position, like their pay, like their hours, or even their location — that employee can elect to accept it, or they can choose to construe that as a constructive dismissal and pursue their severance right.”

She cautions employers who are looking to make such changes, and recommends they give employees proper notice before implementing changes.