Crucial in the Age of COVID, Workplace Policies Are So Easy to Get Wrong

Some we have seen were well drafted, and some fell between horrible and offensive.

If you ask your family and friends if they’ve received a work-from-home policy, a vaccine policy or a mask policy within the last 12 months, not only will the answer be a resounding yes, but the content of these policies probably vary like night and day.

When employers are faced with a never-seen-before scenario like a global pandemic or the legalization of a new drug, often the best way to approach those situations is a workplace policy covering the issue

Over the last year as legal counsel for a large HR consulting firm, we had the pleasure of not only drafting various policies for employers, but also rejecting some “self-made” policies that were not well conceived. Some were well drafted, some were not, and some fell between horrible and offensive.

Offender No. 1: Drinks after work?

An employer from British Columbia asked to approve a policy they had drafted. It was not a workplace policy, but applied only to one employee it had just hired. The employer had a suspicion that the new hire was a “drinker,” and the policy prohibited this person drinking alcohol both at work and on personal time, to submit to random drug and alcohol testing, with the threat of dismissal.

What is wrong with that? First of all, individual employees should not be targeted with policies that only affect them. This is one of the top causes of damage to employee morale. Employer “suspicion” of alcoholism sparked the offending policy. Targeting an employee due to a disability, which alcoholism is, can be a breach of human rights legislation. Lastly, unless it is a safety-related position, and then only sometimes, random drug and alcohol testing is not permitted in a non-union setting.

What was drafted for the employer was a drug and alcohol policy that applied to all employees at the workplace and did not contain clauses for random drug testing.

Offender No. 2: Habla Espanol?

We were asked to draft a policy informing employees that only English was to be used in the workplace as other languages were making some employees uncomfortable and anxious.

What is wrong with that? A language policy in the workplace may be appropriate in some circumstances – communicating with customers, taking orders or in workplace meetings. However, a blanket ban of foreign languages in the workplace is a prima facie violation of human rights legislation and damaging to employee morale. If a group of employees belong to a certain language group, banning foreign languages can be targeting that particular group.

A good policy?

One employer asked for a health and safety and vaccine policy that requested all employees to be vaccinated, to include language for religious and medical accommodations, how those accommodations would be handled, and what options those requiring accommodations would be provided.

What is wrong with this? Nothing. This is the proper approach, it worked wonderfully and the employees offered positive feedback.

Employers must be careful when drafting workplace policies on their own because there can be costly consequences. Nothing makes for a better human rights claim than a document with discriminatory policies.

If you are unsure of how to draft a policy or you’ve received a bizarre one from your employer, contact an employment lawyer. If you’ve received one that fundamentally changes your employment, make sure you’ve also received proper notice. If you’ve received one you feel is discriminatory, a human rights complaint may be in order.

Back-to-work and COVID policies are critical to circumnavigate the modified legal landscape. Employers should implement policies that provide certainty in a time of greater employment uncertainty than we have experienced in decades.

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

Howard Levitt is senior partner of LSCS Law, employment and labour lawyers. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Puneet Tiwari is a lawyer at LSCS Law.

BY HOWARD LEVITT AND PUNEET TIWARI

PHOTO BY GETTY IMAGES/ISTOCK PHOTO

THIS ARTICLE ORIGINALLY APPEARED IN THE FINANCIAL POST AND IS REPRODUCED HERE BY PERMISSION OF THE AUTHOR: https://financialpost.com/fp-work/howard-levitt-crucial-in-the-age-of-covid-workplace-policies-are-so-easy-to-get-wrong