It’s now officially patio season — but is it safe for servers to go back to work?

Most of the province is now in Stage 2 of Ontario’s reopening plan, which means that outdoor dining is a go. That has waitstaff choosing between potentially heightened risk and financial need
By Sula Greene - Published on Jul 02, 2020
Stage 2 of Ontario’s reopening plan includes restaurant patios. (Cole Burston/CP)

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Claire Cowan is the manager of Grand Electric, a Mexican restaurant in Toronto’s Parkdale neighbourhood, and a server on its newly reopened patio. “Immediately, we were supplied with hand sanitizer, surgical masks — N95s — and whatever else we needed to feel safe while open,” she says. “There are a lot of unknown variables which I’m sure the industry as a whole struggles with. But, then again, we have always been an industry that goes through ups and downs together.”

Today, virtually the entire province is in Stage 2 of Ontario’s reopening plan — which includes the opening of restaurant patios. But many staff working on the floor wonder whether it’s truly safe.

“I decided that my role in the reopening was essential, as I knew very certainly what sort of boundaries I wanted to put down to protect the staff who will return to work after me in regards to updated health and safety,” Cowan says. “[But] it is a little scary knowing how many daily connections we make after months of being able to recite every face you’ve seen in the past two weeks. But the fear almost automatically turns off as you are back in a familiar workspace.”

Restaurant owners were desperate for the go-ahead. “Ours was an industry that was dealt a traumatic blow,” says James Rilett, VP Central Canada at Restaurants Canada, a non-profit that advocates on behalf of the nation’s food industry. Recent estimates show that roughly 26 per cent of restaurants in Canada won’t have the funds to reopen. SaveHospitality, an industry advocacy campaign, has lobbied on behalf of restaurants during the pandemic. Patio reopening was among its initial demands.

Toronto restaurants are required to follow certain safety measures when they reopen, including ensuring physical distancing between tables, limiting access to indoor spaces for patrons, and relying increasingly on reservations. However, the actual practices vary depending on the owners and patrons. Sonja, whose name TVO.org has changed to protect her identity, says that the popular Italian restaurant she works at has safety measures but adds, “It all feels very casual. I feel like a lot of people think there is not a pandemic anymore and feel it’s okay to break the rules by mingling with other tables. It feels like I’m babysitting the entire time, which is not my job. It gets especially difficult when people are drunk.”

Although there have been some staff meetings, Sonja says, “how we are to address customers if they’re breaking rules was never talked about. As servers, we have less of an ability to bounce back if we get sick, and we also risk ruining our industry if there is an outbreak.”

Esther Chau, a bar manager at Hanmoto, has worked takeout since May and wants to see the west-end Toronto restaurant open a patio. “I feel I am in the safest possible position at my place of work,” she says. After assessing the risks, she says, she decided she wanted to support the business by working: “Keeping the business running in whatever capacity possible so that we eventually do have a place to come back to is the main driving force for making that decision to come back to work.”

But Kara, whose name has been changed by TVO.org as she is not authorized to speak to the media, says she does not feel safe working as a server at a restaurant run by a nation-wide hospitality group. “I’m not living with anyone I have to be super worried about,” she says. “But I do want to be socially responsible. Being one of the people serving food every day doesn’t feel like that.”

In early June, Kara received a company-wide email that warned Service Canada might deem employees ineligible for employment insurance because there is work available to them. Employees were also warned that, if they did not respond to the email, management would consider their silence a resignation.

With the looming uncertainty of the post-COVID job market, she was not willing to give up her job, despite her concerns.

As restaurants continue to invite staff back, servers could become ineligible for the Canada Emergency Response Benefit if employers indicate on their Record of Employment that they quit while work was available to them. A spokersperson for Employment and Social Development Canada tells TVO.org via email that, while CERB “is available to those who stop working for reasons related to COVID-19” — for example, they’ve lost their job, are in quarantine or sick, or are taking care of others —  “they cannot voluntarily quit their job.” They added that workers concerned about the safety of their working conditions “should discuss the situation with their employer” and consult resources such as the Canadian Centre for Occupational Health and Safety and the province’s labour ministry. “If and when it becomes possible for Canadians to safely go back to work,” they write, “they should do so.”

For many, though, CERB is simply not enough. “I decided to return to work in order to make and save more money,” Sonja says. “Toronto is expensive, and half of CERB is my portion of rent.”

The Occupational Health and Safety Act gives every employee the right to refuse unsafe work, but it’s unclear whether patio service is considered safe. Across the province and in all sectors, unsafe work refusals have spiked as workplaces reopen. But, of 280 refusals in Ontario, only one case has been upheld. “With COVID, there have been so many new employment-law questions on which we don’t have clear answers,” says Kumail Karimjee, a Toronto-based employment lawyer.  “Work refusals are not likely successful in circumstances where employers are taking adequate measures to reduce risks to health and safety.” 

But that’s not the only avenue for recourse. “A person who is immunocompromised or has a caregiving relationship with someone who is immunocompromised ... has a different way in by effectively asking for a leave,” Karimjee says. “There are provisions under the Ontario Human Rights Code that give rise to a duty to accommodate in the event that somebody might be discriminated against or adversely affected by workplace rules.”

For members of vulnerable populations who choose not to return to work, there may be legal protections, Karimjee says, although he adds that there is not yet significant case law.

The Toronto Restaurant Workers Relief Fund, a non-profit organization dedicated to supporting food industry workers during COVID-19, lists five demands for reopened restaurants: a living wage and abolished tips, attention to employee mental health, better management and anti-racism work, more robust COVID-19 considerations, and a decrease in police presence.  

While physical health, financial status, and mental well-being will all be important factors in servers' decision to return, many are asking simply to have a voice in the process. “For every staff member who’s afraid,” Cowan says, “there’s three staff ready to step up and take their place.”

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