At the end of June, leaders and delegates from the G20 group of nations will be converging in downtown Toronto. While the actual meetings will be taking place on June 26 and 27, preparation, including a comprehensive security infrastructure, will likely be in place days before the event. As a result, there will likely be significant security disruptions for a period of time both before and following the event. What does this mean for employers trying to manage a workplace?
Given the logistics associated with the G20 meeting, businesses are understandably concerned about the potentially disruptive effect that the event will have on their operations. This is particularly true for those employers with offices located in and around the Metro Toronto Convention Centre where the meetings are scheduled to take place. Although details remain somewhat vague, it appears that a “security perimeter” will be created which will include not only the Convention Centre, but a significant portion of the surrounding downtown core.
One question we are being asked by our clients is how to respond to an employee who chooses not to attend work given the various restrictions in the security area in downtown Toronto. Is this justified and should an employee be paid under these circumstances? The Ontario Employment Standards Act, 2000 (the “ESA”) does not require an employer to compensate employees for work that is not actually carried out. In other words, pay is contingent on the carrying out of work. Employers also have the right to expect that employees will attend work in accordance with their employment contract. Unless it is absolutely impossible to get to work, which is distinguished from more difficult to get to work, employers can rightly expect employees to both attend and carry out work in a manner which is consistent with the terms of their employment.
Another question we have been asked is whether employees can refuse work during the lead up to and execution of the G20 summit on the basis of safety concerns. Some employees may claim, for example, that factors such as the security measures and/or the threat of a terrorist attack during the summit present a potentially serious risk to their health and/or safety. To clarify, employees do not, in general, have a right to refuse work. There are, however, some particular narrow circumstances in which work refusals are valid, and those pertain to conditions which affect an employee’s safety within the workplace. The specific circumstances under which an individual can refuse to carry out work are described in the Occupational Health and Safety Act, 1990 (the “OHSA”). The OHSA refers to situations involving the actual place of work, such as the physical condition of the workplace. It does not refer to conditions outside of the workplace over which the employer has no control. As a result, we do not anticipate employees being able to use work refusals under OHSA to justify their absence from work during this time.
Quite apart from the legal analysis, we would suggest employers use common sense and flexibility when managing their workplace during the period affected by the G2O summit. If what we are hearing in the media is true, the summit will lead to significant logistical issues in terms of moving around in downtown Toronto, not the least of which will be a slowdown of the public transit system. Employers should prepare for the scenario in which many employees will find their commute to work lengthier than normal.
Keeping in mind that getting to work will be harder to do, what steps can employers take to manage the situation? We can suggest a number of options here.
1. Allow employees to work from home. This is reminiscent of what many employers did during the height of the flu season to minimize the possibility of illness transmittal. The same can be done in these circumstances, particularly if this is done over a short period of time, when the disruptions to Toronto’s downtown core will be at their worst.
2. Encourage employees to take vacation or flex time during the time period in question. In this way, employers can temporarily minimize their workplace population and the attendant problems of having those people travel downtown.
3. Consider temporarily moving employees to another location to do their work. Assuming you operate in more than one location, moving employees to an alternate location to work could be an option. This move would be on a temporary basis, and you could assist affected employees by facilitating carpooling or other forms of transportation, if it is necessary.
4. Offer employees the day off, in exchange for an agreement to work additional hours in the future. If you believe that you must shut down a portion of your operations, consider offering employees the day off, in exchange for an agreement to work additional hours at a later date. As with all agreements of this kind, it should be in writing.
What does this mean for employers? We suggest the following planning tips:
1. Advanced preparation
Employers should ensure that they address all potential issues regarding the G20 summit as far as possible in advance of the event. This can help to reduce the unpredictability of outcomes associated with the event and the effect it will have on the workplace. The City of Toronto has information on their website that addresses some of these issues at www.toronto.ca/G20/index.htm.
2. Use common sense and flexibility
We can only hope that the inconveniences associated with the G20 summit will only last a few days. Assuming that to be the case, we would encourage employers to use their common sense and flexibility in response to employees’ requests for some form of alteration of their normal working arrangements. In our view, taking a hard line approach will not serve employers particularly well in the long run, and may very well be disproportionate to the actual inconvenience ultimately caused.
3. Consistency in application
Although dealing with the inconvenience of the G20 summit may require an approach tailored to each workplace, employers should nevertheless ensure that any resulting modifications are carried out in as clear and consistent a manner as possible. Otherwise, there may be a significant amount of discontent in the workplace as individuals feel that they are being treated in an inconsistent manner vis-a-vis other employees.
Rubin Thomlinson LLP is an employment law firm in Toronto that focuses on providing employers and employees with optimal legal solutions to their challenging workplace issues. They also act as workplace investigators and offer comprehensive workplace investigation training for human resources professionals. Visit www.rubinthomlinson.com to learn more.