With COVID-19 vaccination rates climbing and infections rates dropping in some geographies, many employers are preparing plans to recall employees who have been telecommuting, or on temporary layoff and infectious disease emergency leave (IDEL).
News outlets have recently warned that the end of statutorily-protected IDEL may trigger a wave of resignations especially from women (see, for example, this story from Global News). Keeping good employees will require employers to consider significant changes, including “hybrid” telecommuting/attendance policies, paid sick leave, and rigorous infection control practices. In addition to enhancing sanitation and social distancing protocols, employers should not overlook an important strategy for ensuring the safety of the post-COVID workplace: containing COVID-denying and/or otherwise toxic employees.
We have heard that during the pandemic, some employers have simply put off dealing with problem employees while they hang out on IDEL or layoff. And as we count down the months and weeks to the post-COVID return to work, employers should consider providing those employees with notice of termination. The cost of a severance package is, in our experience, almost always outweighed by the human and financial damage caused by toxic employees in the workplace.
Employers should also feel assured that employee challenges to workplace infection control protocols will not succeed. For example, Human Rights Tribunals in British Columbia and Ontario have issued decisions making it clear that there is no obligation on the part of employers to accommodate the views of employees who may object to wearing masks on the basis of their personal belief systems. See Worker v. The District Managers, 2021 BCHRT 41, and Sharma v. Toronto (City), 2020 HRTO 949. And while Canadian employers wring their hands over vaccination policies, the United States Equal Employment Opportunity Commission has issued a statement indicating that COVID-19 vaccination is a bona fide occupational requirement (see the EEOC’s guidance document online). Employees returning to the workplace should feel confident that employers are doing everything reasonably possible to ensure their safety on the job. This means that not only must employers enact and enforce infection control policies, they should not tolerate challenges or defiance of those policies.
This pandemic will eventually come to an end. The post-COVID workplace should be a safer, healthier place for workers, which means much more than simply installing hand sanitizer stations and sneeze guards. Employers should also plan to inoculate the workplace against harassment and discrimination – and not recalling toxic employees is a good start. Contact Bridge Legal and HR Solutions for assistance with planning severance packages for employees who are not part of your company’s future.