I cannot keep up with the inquiries stemming from COVID-19 and its impact on workplaces. This article is intended to lay out some of my general thoughts, in the hopes that clients and potential clients can first read it and then trim down their questions to a level I can get to.
First and foremost, people need to understand that these are unprecedented and unpredictable times. I might give you advice this morning and have it rendered obsolete by the afternoon when COVID appears in your workplace, the government changes a regulation, shuts down your industry or if your employer goes bankrupt. Note as well that new measures (such as changes to the Employment Insurance regime) might impact what you can get, including what you can get from other sources. Further still, if you don’t like your situation, you may not have much recourse at present given that courts are closed across the country.
Another consideration at play is whether COVID-19 in the workplace will be treated as an act of God in Canadian law. If so, many different legal implications will apply.
I am quite certain that people will try these issues in courts and tribunals across the country for years to come. Eventually the Supreme Court of Canada will weigh in and eventually I will have a body of case law upon which to draw in advising people. But to date as far as I am aware there is not one case dealing with COVID-19 in the workplace anywhere in Canada. What they are going to say is presently a guessing game and yet the answer impacts the courses of action we should be taking now.
In addition, there are tons of smaller more nuanced considerations depending on the case such as whether remote working is possible (job by job and workplace by workplace) how immunocompromised workers are affected, and how human rights law weighs in.
In sum, I am able to provide some helpful advice in most situations, but advising on the impact of COVID-19 on Canadian workplaces is unlike most advice I give. The situation changes by the day.