Employment Law Issues in the Post-Pandemic Workplace

Since March 2020, employers have been navigating COVID-19 and its impact on the workplace. Employers have had to adapt how they operate in the face of an unpredictable virus and ever-evolving laws, including, in many cases, shifting to remote work. Now, as vaccination becomes more widespread and a return to normalcy seems in sight, many employers are considering a return to the workplace and must decide what that will look like.

Below we set out five issues for employers to consider as we navigate towards a return to the workplace:

1. Mandatory COVID-19 protocols are still in effect and vary by jurisdiction. Employers should determine what protocols are required, such as COVID-19 screening, use of masks, physical distancing and regular hand washing, and ensure they are implemented. A formal safety plan may also be required and should be consistent with public health guidelines. Employees should also be aware of what is expected of them and the consequences for any breaches.

2. Employers can require employees to return to the workplace. If an employee asks to continue working remotely and an employer agrees, it should be clear this is a temporary arrangement and the employee may be recalled to the workplace at any time, assuming the employer wants to retain this flexibility.

3. If employees are asked to return to the workplace, employers may see a rise in accommodation requests on the basis of disability or family status from those who are immunocompromised or caregivers of elderly parents or children. Employers will need to address these requests on a case-by-case basis in accordance with human rights legislation.

4. Many employers will adopt a hybrid model for returning to work, allowing employees to split their time between home and the workplace. A hybrid model can take many forms. An employer must ensure expectations are clearly communicated, particularly regarding attendance, working hours and responsiveness.

5. A large number of employers are implementing mandatory vaccination policies, but they vary significantly — vaccinate or terminate, vaccinate or test, or vaccinate or educate. Employers should consider what is appropriate in the workplace and ensure the policy balances an employer’s duty to protect the health and safety of its workers with an employee’s right to privacy and human rights.

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