Shaking old habits

Old habits die hard, even in a pandemic. As health authorities urge people to think twice about attending large gatherings and police their personal hygiene to slow the spread of the novel coronavirus that causes COVID-19, lawyers are slowly learning how not to shake hands.

 

“You don’t think twice about it,” says Carissa Tanzola, a partner in labour law at Filion Wakely Thorup Angeletti LLP in Toronto. “The other day, I was meeting with a client and I put my hand out automatically — didn’t even think about it. The client said sorry, they’d rather not, and suddenly I’m the one apologizing.”

 

All businesses have to make adjustments in a pandemic climate, some more than others. If you’re running a factory, you can lock it down. If you’re running a web-based business, you can tell your people to work from home.

 

If you’re running a law firm — especially one with business abroad — your response to the crisis might be a bit more complicated.

 

Things change for every employer once public health authorities declare that a pandemic is underway. For starters, the rules on protecting employees’ personal privacy can shift. “Public health concerns could trump privacy considerations once there is a risk of a significant level of illness from a highly contagious disease in a community,” says the Canadian Bar Association’s employers’ guide Pandemics and the Workplace.

 

In a pandemic, employers want to know if they’ll have enough staff to function. They also want to know if someone in the office is going to make everyone else sick. Normally, gathering that information in detail would run afoul of federal and provincial privacy laws — but in a pandemic, those privacy rights have to be balanced against the employer’s duty to provide a safe workplace.

 

“Generally, an employer cannot legally compel an employee to disclose his or her diagnosis and other personal medical information,” said Darryl Hiscocks, a labour lawyer at Torys LLP. “In some circumstances, the employee may be compelled to provide such information, such as in cases in which the employee may jeopardize the safety of co-workers. Many employers will probably be willing to be assertive on this point in the current environment.”

 

The Office of the Privacy Commissioner’s 2009 report Privacy in the Time of a Pandemic says employees don’t have to surrender personal information to help employers plan for a pandemic, and that during an actual pandemic “managers should only collect the minimum information required for business planning.”

 

Once health authorities declare a public emergency, employers can require the collection and disclosure of employees’ personal information, says the OPC. “Private sector privacy legislation would not impede the work of public health officials in this regard.”

 

Generally, employees have the right to refuse work if they feel it’s unsafe. That right can cover refusing to work in an office where they could be exposed to a pandemic virus — but the right is not absolute. During the 2003 SARS outbreak, staff working out of Pearson Airport claimed that their workplace was putting them at risk. Their claims were denied — mostly because the courts found no evidence that the employees faced any heightened exposure to the virus.

 

Ryley Mennie, a principal with Miller Titerle + Company in Vancouver, says that an employee can refuse to work with someone known to have been exposed who didn’t pass quarantine. But the novel coronavirus’s Chinese origin is already inspiring eruptions of race-based shunning, so he said employers have to be on their guard.

 

“There is a racial bias attached to this virus that is not valid,” he said. “Employers have to be very careful to avoid taking steps based on the racial background or country of origin of an employee.”

 

Another thing employers have to be wary of is constructive dismissal. Compelling employees to self-isolate without pay could lead to lawsuits down the road — unless the potential risk is high enough to convince the employer that the alternative might be much worse. Again, it’s important for employers to consider the context — pandemic or not, public health emergency or not.

 

“Say an employee comes back from a country considered to be a high-risk place, like Iran, and is showing signs of illness. That might be the case where the employer takes the chance (of constructive dismissal),” said Hiscocks.

 

“It depends on how careful a workplace has been in putting together a pandemic plan,” said Tanzola. “Lawsuits are possible down the road if an employer’s actions amount to constructive dismissal.”

 

Law firms can expect to confront conditions not all employers will face, because most depend on engaging directly with the public.

 

As this crisis progresses, more and more firms may start taking steps to reduce person-to-person contact: cancelling meetings, restricting public access to offices and using remote-work technology to cover not only conferences but meetings with clients.

 

“The problem law firms face is that they’re client-focused businesses,” said Tanzola. “They’re engaged in regular contact with people, in their offices and in court. So they have to think hard about how to maintain their levels of service while protecting their people.”

 

Most people won’t notice an appreciable difference in how law firms serve their clients until virus containment measures start locking down aspects of courtroom operations themselves. Court systems will try to avoid delaying trials as long as possible, to avoid inflating the current backlog. But many courthouse functions can be handled through teleconferencing.

 

“It’s certainly not ideal,” said Tanzola. “When you’re examining witnesses, for example, it’s much better to be face-to-face. But I can certainly see the courts trying to minimize that possible exposure.”

 

All law firms require staff to travel from time to time; some Canadian law firms conduct a lot of their business abroad and maintain offices in foreign countries. Those firms face a double challenge: keeping up with clients’ needs while keeping staff members safe, in Canada and elsewhere.

 

What responsibilities does a law firm bear toward staff members working in, or travelling through, foreign countries where COVID-19 is an acute threat? Hiscocks said those responsibilities could be quite broad and could include a duty to evacuate individuals stuck in an outbreak zone.

 

“I had a case of an employee who was travelling for work, ended up getting a communicable disease abroad, was hospitalized and nearly died,” he said. “My advice was that (the employer) had an obligation to look after the employee and bring them home.

 

“In the current environment, Canadian employers with employees travelling abroad to high-risk COVID-19 countries should be taking these matters seriously, including assessing whether to return the employees to Canada …”

 

But local authorities are responsible for slowing the virus’s spread, which means they may end up deciding whether foreign nationals working in or travelling through a hot zone are permitted to leave.

 

“If you have an office in China, for example, the law in that location applies,” said Tanzola. “You have to look at what local authorities are saying. Is there a requirement to evacuate? There might be a local lockdown, in which case your employees would be compelled to comply.

 

“What to do in these cases, above and beyond local requirements, is less of a legal question and more of a business question.”