Calgary employment lawyer explains what lifting mask and isolation requirements mean for the workplace
Employers still obligated to keep staff safe, can introduce their own health regulations, Sarah Coderre says
After a year-and-a-half of physical distancing, masking, and isolating when sick, Albertans will experience a dramatic change in August when virtually all COVID-19 health restrictions are set to disappear.
The province will no longer require Albertans to isolate if they test positive for COVID-19 as of Aug. 16, which could mean people who are sick will be going into the office and possibly infecting other colleagues.
Testing will also be limited to patients whose symptoms are severe enough to need care in hospitals or clinics starting Aug. 31 — so those with mild symptoms might not realize they have COVID as they talk around the water cooler.
Sarah Coderre, an employment lawyer and partner with Bow River Law in Calgary, spoke to the Calgary Eyeopener on Friday.
She explained whether it is legal to inquire about the vaccination status of employees, what the changes in health regulations will mean for employers and employees alike, and who is liable if COVID-related issues arise at work.
The following interview has been edited for clarity and length.
Q: What are the legal implications for workplaces when it comes to having no real COVID restrictions in place?
A: So, you have to come back to first principles, which is the employer's obligation to keep the workplace safe. That's codified under the Occupational Health and Safety legislation in Alberta.
It includes requirements to keep the workplace safe and free from hazardous substances, which has also been defined as including biological substances, and throughout the pandemic that's been deemed to mean COVID-19.
So it's interesting, because even though the provincial health restrictions are being lifted, it doesn't change an employer's obligations to keep the workplace safe.
Q: Before COVID, people would come to work even if they had a cold or maybe the beginnings of the flu. Is it possible for an employer to keep the workplace safe from things like viruses?
A: I think the difference that we're seeing now is the severity of outcomes that people can have if they're infected with COVID-19.
The issue for employers is that they don't know who's been vaccinated, and who hasn't been, and they don't have entitlement to know that information.
An employee can voluntarily disclose that they've been vaccinated, but an employer, in most contexts, is not going to have a legal right to require vaccination.
So, it puts employers in a bit of a bind.
I think that each workplace is going to have to decide what the potential risks are to their workforce — and given how people may be going about their daily duties and having to put in their own forms of restrictions.
I wouldn't be surprised if you see more businesses bringing back their own masking mandates for their own employees, and that's certainly something that private business can do.
Q: They can't mandate vaccination as a condition of work?
A: No. There are going to be some employment contexts — like health-care, for example — where it may make sense to do that, and there may be an occupational requirement to have your vaccine status up to date. Or, to have some sort of proof that you don't currently have COVID.
For example, you may be required to do rapid testing in the morning before you go to your shift or provide proof of vaccination in employment contexts where you're dealing with very vulnerable populations.
Those are situations where an employer could put in those more severe measures, and the courts would uphold that.
WATCH | Alberta will remove most COVID-19 isolation, testing requirements:
Q: How can employees adjust to staff illnesses in the workplace without mandated isolation policies in place?
A: Employers are likely going to have to come up with their own policies around what sort of illness they will and won't tolerate in the workplace.
So, just because somebody is not legally required to isolate post-Aug. 16 once they've tested positive for COVID, doesn't mean an employer can't say, 'You can't come in here if you have a positive COVID test,' for example.
Q: If someone were to go into work and pass COVID to someone that ended up seriously ill or even dying, could there be a liability issue for either the employee or the employer?
A: Certainly, I think that there would likely be a liability issue for the employer if they haven't taken any sort of precautions with respect to the workplace whatsoever.
They would want to put out some messaging around what their policies will be if there's anyone in the workplace who has any sort of health vulnerabilities or an immunocompromised status — giving them the opportunity to come forward, so that special arrangements can be made for that person, like working from home.
If an employer is not doing anything, and people are coming into the office visibly sick, and somebody gets COVID-19, and they get very ill or they die from it — that's certainly going to be a situation where you're going to have some [Occupational Health and Safety] issues on your hands.
Q: Do you think there will be far more flexibility regarding people coming into work sick — that they just will be sent home if they have any sign of a sniffle?
A: I think that we've had a bit of a culture shift. There is a greater awareness of the impact that you can have on other people's lives when you come into work when you're sick.
We've had success with people working from home for the last year-and-a-half. I do expect that for a lot of companies are going to say, "If you have any of these core symptoms, whether it's COVID or it's just simply the flu, we prefer that you work from home."
With files from the Calgary Eyeopener