Heading back to work? Know your rights

The leave of absence can be used in a number of instances including parents who are unable to find childcare.

But the employer is not legally required to pay employees who decide to take that route, according to Jonathan Tieman, lawyer with Maclean Weidemann lawyers.

“In theory if someone can’t work because of family obligations. What they are protected under the legislation for is the ability to have an unpaid leave, so the employer has to still hold the position open to them for the statutory period of time and I believe it is about 26-27 weeks after which the employer is not obligated to hold the position open, but the employee seeks compensation through the traditional EI process or the CERB process,” he said.

The unpaid leave can also be used for people needing to quarantine when sick or for those having to care of someone with the virus.

But what if you return to work and still feel unsafe?

Tieman says an employer is legally required to provide a safe workplace, and that includes following the guidelines set forth by Alberta Health.

But there is a catch.

“From an employee’s point of view, an employee’s personal feelings likely aren’t going to be sufficient enough for them to avoid going to work. If they have health related concerns that prevent them from engaging with the public due to the COVID-19 pandemic then I think the employer has an obligation to try and accommodate that the best they can.”

And even if your workplace tries to accommodate, the level of accommodation may not be exactly what you want, and it doesn’t have to be, according to Tieman.

“Employers have a duty to accommodate. They don’t have an absolute duty to do everything that an employee may want to occur in this situation,” Tieman said.

For workers who are immunocompromised, and susceptible under the current conditions, Tieman said employers are well advised to accommodate the employee’s request not to return to work if they supply a doctor’s note.

Workers who contract COVID-19 at work may be eligible for compensation through WCB, according to Tieman

“If an employee tests positive and the COVID-19 infection can be traced to the employer or the worksite, so these are situations where we have workers in high risk areas such as a nurse for example or perhaps a cashier at a grocery store, there would be coverage available through the worker’s compensation board, provided they are an industry governed by the workers compensation board,” he said.

But employee’s who test positive for COVID-19 are not necessarily entitled to directed compensation from the employer, according to Tieman.

If employees contract the virus outside of the workplace, they would need to rely on other types of relief.

“A lot of employees who have been going through this process over the past couple of months have either been relying on bank time, vacation time, sick time to get coverage from their employer and then falling back on the CERB and other government related resources,” he said.

As a final note, Tieman recommends employees take a flexible approach when they return, but still remain cognizant of their rights.

“They have a right to have a safe worksite and to request the necessary resources from their employer. If an employer is putting an employee into a position where they are being asked to do something that is outside the scope of what is recommended, for example less than six feet of distance between clients or other employee’s without proper PPE, they do have a right to assert some protection from their employer and not go into a worksite and engage in work that is dangerous,”

by Tiffany Goodwein

Heading back to work? Know your rights

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