​Alberta employers to determine who's essential and can work while infected with COVID-19

A new public health order that leaves it up to employers to decide which Albertans infected with COVID-19 should go to work is short on oversight and enforcement, health law experts say.

The "critical worker exception" order lets employers judge, with few conditions, whether the service they provide is critical and which of their COVID-positive employees are essential.

It was enacted Jan. 3 — just days after Health Minister Jason Copping announced the change, along with plans to cut Alberta's mandatory isolation period from 10 to five days. Details of the order, which Alberta Health describes as a last-resort measure for critical services, were made public last week. 

"This order is unique in its stupidity, and unique in terms of its just sheer disregard for workers' rights," said Ubaka Ogbogu, an associate professor in the faculty of law, and the Katz Research Fellow in Health Law and Science Policy, at the University of Alberta.

"What's really scary is that it's the employer who determines if they have met the standard," Ogbogu said.

Critical workers who are symptom-free or have mild symptoms can be called back to work. 

WATCH | Alberta announces critical worker exemption:

There is no application process for the exemption, and return-to-work plans will not be reviewed by any government department. The order, signed by Chief Medical Officer of Health Dr. Deena Hinshaw, does not provide a list of eligible sectors. 

"There is no process. I can see it being used by a variety of industries that are not necessarily essential."

The order is not designed to protect public health, but to insulate industry from the impacts of the pandemic, Ogbogu said.

"It's quite appalling that the chief public health officer would decide that you're not sick enough to be home, but not well enough to be at work without mitigation."

In a statement, Alberta Health spokesperson Christa Jubinville said the decision to bring infected workers back should only be made as a last resort to maintain services which, if disrupted, might endanger the public.

The decision to provide the exemption was based on evidence that fully immunized people have shorter infectious periods, Jubinville said.

"The workers and worksites to whom this exception may apply are very limited," she said.