Plexiglass, masks, gloves, disinfectant gel, two-meter rule, how far do your obligations as an employer go?

First of all, it is important to know that in a pandemic period or not, there are different obligations to which not only the employer, but also the worker must comply.

On one hand, every employer must take the necessary measures to protect the health and ensure the safety and physical well-being of his worker.[1] On the other hand, the employee is bound not only to perform his work with prudence and diligence[2].

At a time when COVID-19 is severely affecting the activities of several companies, the above-mentioned concepts take on their full importance and several questions arise. For example, does the employer have to install a Plexiglass screen in order to comply with its obligation to ensure the safety of their workers? Conversely, can an employee refuse to report for work for fear of putting their family at risk – to the detriment of fulfilling their obligation to perform their work?

As this is an unprecedented period and we are in a “new law” scenario, we must answer these questions by interpreting general principles. In the months that follow, the courts will no doubt have the opportunity to rule on these issues.

The Employer

The employer must comply with the measures prescribed by the government authorities. For example, they must not only encourage, but put in place measures allowing their workers to respect the rules of social distancing. The employer also has the obligation to remind their workers of the prescribed hygiene measures, such as frequent hand washing, regular cleaning of common areas and prevention of employees sharing their work tools (computer mouse, pencils, etc.).

The employer’s obligation to offer additional protective measures in addition to the hygiene measures prescribed by government authorities will vary depending on several factors. For example, employers of health workers who are at the front will provide to their employees: masks, gloves, protective gowns, visors, etc.

Conversely, an office worker who has a closed workspace allowing them to respect social distancing with their colleagues at work, cannot demand that their employer provide them with a protective gown. The fact remains that an employer can offer protection to its employees that exceeds the level required by law, for example by installing a plexiglass separating employees from potential customers, although as of the date hereof, no legal obligation exists in this sense.

The Employee

The Act Respecting Occupational Health and Safety provides for the right to refuse[3]. This right allows an employee to refuse to perform their work if they have reasonable grounds to believe that the performance of this work exposes them to a danger to their health or physical integrity or that of a other person.

The law speaks of the exposure of the worker to a danger and not just to a health risk. Thus, if the employer takes the necessary measures to ensure the safety of their employees and if, despite these measures, an employee refuses to perform their work, the employee is liable to sanctions.

Although sanctions can be of the nature of dismissal, the employer is cautioned before applying this ultimate sanction to the employee. An approach that favours accommodative measures by applying a gradation of sanctions should be prioritized by the employer.

In case of doubt as to the intensity of the obligation to which you are subject as an employer or in case of doubt as to your rights or obligations arising from a particular situation, we invite you to communicate with the Force-Legal.

An article by Lawyer Maxime Morissette

[1] Art. 51 Act respecting occupational health and safety, ch. S-2.1.

[2] Art. 2088 Code civil du Québec, ch. CCQ-1991.

[3] Art. 12 Loi sur la santé et la sécurité du travail, ch. S-2.1.