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With the prevalence of the virus in our community, many workplaces will be impacted by employees either testing positive for COVID-19 or being a close contact of a confirmed case.

Nelligan Law gratefully acknowledges the contribution of Melanie Sutton, Student-at-law, in writing this blog post. 

As governments ease restrictions and businesses prepare to re-open, employers and employees alike have questions about workplace health and safety.

Can an employer require the employee to provide proof of a negative COVID-19 test result before they return to work?

As governments ease restrictions and businesses prepare to re-open, employers and employees alike have questions about workplace health and safety.

The short answer is no.

Current testing guidelines do not allow for asymptomatic individuals to be tested. Therefore, an employee who has recovered from COVID-19 may not be allowed to be retested to confirm that they are now negative.

A policy preventing healthy employees from coming to work because they cannot prove they no longer have the virus is therefore problematic and could constitute a constructive dismissal. A constructive dismissal may occur where an employer demonstrates that it no longer intends to be bound by the employment contract or intends to terminate the employment relationship.

If an employer prevents an employee from returning to work without a confirmed negative test result for COVID-19, and the employee cannot obtain a test, the employee may be able to claim that the employer is effectively putting an end to the employment relationship.

Importantly, a constructive dismissal is always a case-specific determination and you should always obtain advice from an employment lawyer before making such a claim against your employer. If you resign prematurely and your constructive dismissal claim fails, you will likely be deemed to have voluntarily resigned, which would effect your entitlements.

What if I am trying to protect my other employees and customers?

Employers have an obligation to provide a safe work environment, meaning that workplaces operating at this time must respect the provincial government’s guidelines to protect its employees. Employees should be allowed to return to work provided provincial government and public health guidance indicates it is safe to do so.

Ottawa Public Health advises that individuals who have tested positive for COVID-19, or who have had symptoms of the disease following known contact with someone who has tested positive, should self-isolate and can discontinue self-isolation when:

  • They have self-isolated for 14 days after symptoms have started; and,
  • They no longer have a fever; and,
  • Their symptoms are improving.

Therefore, employers should follow these guidelines. Even once the employee is allowed to discontinue self-isolation, physical distancing should continue. This is where the province’s industry-specific guidelines come into play. All workplaces that are open should be operating in a manner that reduces risk of transmission of COVID-19.

Requiring an employee to have a negative test before coming back into the workplace is therefore not necessary, and may – if the employee is asymptomatic – be an impossible condition to satisfy. If you have questions about your business or employment situation, please contact an employment lawyer.

Please note the COVID-19 situation is changing quickly, and this information is accurate at the time of publication.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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