Workplace safety is a two-way street and can warrant employee discipline or discharge

Howard Levitt: An employee purposely coughing on another would result in cause for termination — and could even lead to criminal changes.

September marks the opening of most remaining workplaces as well as schools across this country. With greater social contact comes greater risk of COVID-19 transmission, and the concomitant increased need for employees to follow safety rules.

I have been fielding calls from employer clients since the beginning of the pandemic, explaining their obligations to keep employees safe and their corresponding rights to refuse unsafe work. But too little attention has been paid to workers’ obligation to keep themselves and their coworkers safe.

COVID-19 policies are only as effective as workers’ preparedness to follow the rules and a worker’s failure to comply can result, not only in increased risk of workplace infection, but also in their discipline or discharge.

In many workplaces, it is common to observe employees risking others’ health by failing to adopt standard precautions such as physical distancing, hand-washing or mask-wearing.

Less visible are undetectable employee risks outside of the workplace, which are likely even more common. Fines have been issued across this country to people hosting parties and other events which have proceeded with reckless abandon as though COVID-19 did not exist. Then there are other risks that are unavoidable for many, such as taking public transit or close contact in narrow hallways and crowded elevators of condos and apartment complexes.With many forms of leaves, including sick pay at many employers being unpaid, there is an incentive for employees to attend work despite having symptoms of COVID-19 or having been in contact with someone who does. Those contact risks will become more prevalent as parents interact with their children once they are back in school.

Unfortunately, some employees would rather place others at the risk of infection than accept any income loss from having to stay home. But that disregard for safety rules is not without consequence.

Health and safety infractions have long been considered one of the most serious offences in employment law, and one of the forms of misconduct which most likely results in just cause for an employee to be fired without compensation.

Employers should make clear, in writing, that violations of COVID-19 policies and other failures to take adequate safety precautions will lead to employee discipline, including discharge. Some employers might wish to provide additional paid sick leave, with proof of illness or of likely exposure, to reduce employee incentives to attend work when it is in everyone’s interest that they remain home.

Even without a written COVID-19 policy, employee conduct that recklessly places management and other employees at risk of infection is cause for discipline (as well as a potential lawsuit against that employee).

The seriousness of potential misconduct will, of course, exist on a spectrum. Mere inadvertent failures to sanitize one’s hands or wear a mask should, at first, lead only to a warning. However, sustained minor failures, or even single major failures, can be cause for substantial discipline, including dismissal for cause.

Further along the spectrum, an employee purposely coughing on another employee would result in near certain cause for termination of employment, and even the potential for criminal assault charges. In contrast, failing to abide by the maximum capacity of a washroom or cafeteria would more likely attract a more moderate form of discipline.

Unfortunately, some contraventions are more difficult to detect. While it is relatively easy to enforce hand washing in the workplace, it is more difficult to assess less transparent safety violations, such as an employee attending work after their child presented COVID-19 symptoms.

Employers must therefore be proactive in creating robust policies that address safety standards both inside and outside of the workplace in relation to employee behaviour and should be clear that violation of those policies will result in discipline or discharge for non-compliance. Discipline can be a powerful tool to not only address existing lapses in workplace safety but also a reasonable deterrent against future breaches.

For their own part, employees must proceed cautiously by taking workplace safety seriously, and by ensuring they take all reasonable steps to protect themselves and others from the risk of COVID-19 exposure, even if it results in some loss of income. To do otherwise could cost them their job and jeopardize their workmates’ and family’s health.

Got a question about employment law during COVID-19? Write to me at levitt@levittllp.com.

Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers. He practises employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.