Williams HR Law LLP

BE PREPARED, NOT ALARMED: WHAT EMPLOYERS SHOULD KNOW ABOUT COVID-19

March 18, 2020

On March 11, 2020, the World Health Organization (“WHO”) declared the 2019 novel coronavirus disease (“Coronavirus” or “COVID-19”) outbreak, first reported from Wuhan, China on December 31, 2019, to be a “pandemic”.

A “coronavirus” is a type of virus that causes respiratory illness, and can be transmitted between animals and humans. A “novel coronavirus” is a new strain that has not previously been seen in humans.

As a result of the WHO’s announcement and coverage by major media outlets of high rates of COVID-19 in increasing numbers of countries and regions around the world, many Canadians have become very concerned about the spread of Coronavirus. Understandably, many Ontario employers want to know what steps they should take to address the potential spread of COVID-19 in their workplaces.

The Government of Canada announced on March 11, 2020 that it would be taking measures to support businesses and employees. The measures include waiving the one-week Employment Insurance (“EI”) waiting period to assist employers and workers affected by COVID-19, and special measures under the federal Work-Sharing adjustment program. Employers should consider the elimination of the EI waiting period in determining any entitlements they might provide to employees who can’t work due to COVID-19.

Below we provide an overview of general recommendations and legal considerations that Ontario employers should take into account when strategizing how to best prevent and address Coronavirus in their workplace. Note, however, that the considerations are generally applicable across all Canadian jurisdictions and we recommend you seek legal advice to ensure your specific compliance responsibilities are met.

When formulating Coronavirus-related policies, procedures, and practices, employers should consider that the Public Health Agency of Canada (“PHAC”) has assessed the public health risk of Coronavirus for Canadians as “low”. As of March 10, 2020, 93 cases of COVID-19 have been confirmed in Canada and one COVID-19 related death has been reported.

PHAC has also assessed the risk of COVID-19 for Canadians travelling abroad as “generally low”, but varying depending on the destination. Currently, the Government of Canada has issued active travel advisories regarding COVID-19 for the following countries: China, Hong Kong, Iran, Japan, Northern Italy, Singapore, and South Korea. However, the levels of risk for these countries vary, and the Government of Canada is currently recommending that Canadians avoid non-essential travel to only the following areas: China, Iran, Northern Italy, and the areas of Daegu and Cheongdo in South Korea (the “Affected Areas”). Further, PHAC is currently only requesting travellers who have returned from Hubei Province, China, to automatically self-isolate for 14 days; travellers returning from all other areas are asked to monitor their symptoms for 14 days, and self-isolate only if they develop symptoms.

Employers in Ontario should not panic, as there is presently a low risk of Coronavirus affecting their workplace. However, prudent employers would be well advised to be prepared and proactively consider the steps they may wish to take to prevent and address the spread of Coronavirus in their workplace in light of their various legal obligations.

General Recommendations and Best Practices

In general, employers should enforce any existing policies that they may have in place requiring employees to stay home when they are sick to limit the spread of infectious illnesses. Employers should also consider implementing temporary policies setting out expectations related to COVID-19.

These policies should address such key information as:

  • Personal hygiene best practices to prevent exposure;
  • Any applicable leave entitlements offered by the employer, including any Coronavirus-related leave enhancements;
  • How the business will operate if the outbreak worsens, such as increased working from home; and
  • Notifying employees of the possibility of layoffs for employers that will be particularly affected and for which layoffs are likely.

Employers should consider whether they will hold to the current recommendations made by agencies such as PHAC with respect to when self-isolation is recommended (e.g., if employees have Coronavirus-like symptoms, or have recently traveled to Hubei Province), or if they want to take a more strict approach in light of health and safety concerns (e.g., requiring all staff who have travelled to an Affected Area, or have had recent contact with someone who has or is suspected to have Coronavirus, to self-isolate for 14 days).

Employers would also be well advised to ensure that their employees are aware of any workplace policies that provide for greater sick leave or caregiver leave entitlements than available under the Employment Standards Act, 2000 (“ESA”), and any other similar leave entitlements.

Further, employers should consider allowing employees to work from home where possible if the employee has Coronavirus-like symptoms, has recently been to an Affected Area, or has recently had contact with a person that has or is suspected to have COVID-19, where the employee is willing and able to do so.

If it is necessary to require an employee who may have contracted COVID-19 to stay home and working from home is not an option, employers should seriously consider paying employees while they are off work (or supplementing existing vacation/sick/personal day entitlements as necessary). Doing so will not only prevent infected employees from attending work to avoid loss of income, it will also demonstrate to employees in a time of great stress that the employer cares for their wellbeing, which may increase employee loyalty and morale.

Alternatively, if additional paid time off is not an option, at minimum, employers should let such employees use vacation days or lieu days to be compensated during the time off, and consider expanding sick day entitlements to the self-isolation period if sick days can typically only be used when employees are actually sick.

Given that COVID-19 is now a well-known travel consider­ation (to the point that some insurance companies are no longer extending trip cancellation insurance to cancellation based on Coronavirus considerations), employers should also consider suggesting that employees check and con­sider travel advisories related to COVID-19 before booking any travel in the coming weeks and months.

Employers’ Workplace Safety Obligations

Employers have a general duty under the Occupational Health and Safety Act (“OHSA”) to take every precaution reasonable in the circumstances to protect workers. As the exact scope of this duty depends on the circumstances of any given case, the precautions or measures that an employer would be required to take with respect to the risk of workers contracting or spreading Coronavirus will vary depending on how likely those workers are to be exposed to Coronavirus in their particular role and workplace. Similarly, all employees have the responsibility to take all reasonable precautions to protect their own health and safety, and that of others in the workplace. Employers can leverage this employee responsibility in their strategic response/prevention plans (e.g., when requiring workers not to attend work until it is confirmed that they are healthy).

In the circumstances, all employers are well advised to remind their employees of best practices for avoiding infectious disease. For example, employers should remind employees to:

  • Wash their hands frequently (including after coughing, sneezing, or blowing their nose);
  • Avoid touching their eyes, nose, or mouth with unwashed hands;
  • Exercise proper coughing and sneezing etiquette (e.g., coughing/sneezing into the crook of the elbow instead of into hands); and
  • Avoid contact with people who are sick.

Prudent employers should ensure that their workplace is kept clean and that frequently used objects and surfaces are disinfected regularly. They should post signs reminding employees to wash their hands in areas such as kitchens and bathrooms, and should consider providing hand sanitizer stations throughout the workplace.

Moreover, employers would be well advised to encourage employees to self-quarantine if they have recently traveled to an Affected Area, have developed Coronavirus-like symptoms, or if they have had contact with someone who has or is suspected to have Coronavirus. According to PHAC and the WHO, symptoms of Coronavirus can include respiratory symptoms, fever, cough, shortness of breath, difficulty breathing, and pneumonia. Employers should clearly communicate to employees that these are the symptoms of concern to ensure that employees know what to look out for.

Further, employers should also require any persons who are self-quarantining or show symptoms of COVID-19 not to attend work until they can provide medical documentation stating that it is safe for them to do so. While employers are not legally permitted to inquire about employees’ medical diagnoses, they can ask whether an employee is contagious, has recently traveled to an Affected Area, or has recently come in contact with someone who has or is suspected to have Coronavirus.

Employers should also regularly check trusted governmental and health agency websites for updates regarding COVID-19, such as the WHO, Public Health Ontario, and PHAC. By staying apprised of the most up to date information, employers will be well positioned to adopt measures that are reasonably tailored to the actual risk presented by Coronavirus in Ontario. As stated above, Coronavirus currently presents a low risk to Ontarians, but Employers should continue monitoring the situation closely.

Workers’ Right to Refuse Unsafe Work

Under the OHSA, workers in Ontario are entitled to refuse to perform work without fear of reprisal if they believe that it is “likely to endanger” themselves or others, unless the danger is inherent to or a normal condition of the worker’s employment or the worker’s refusal would directly endanger the life, health, or safety of another person.

Consequently, workers may refuse to perform work where they believe it puts them at risk of contracting COVID-19.

Regardless of whether the worker’s concerns are reasonable, the OHSA requires employers to investigate the alleged danger in the presence of the worker and the workplace’s Health and Safety Representative or Joint Health and Safety Committee, as applicable. Where a resolution cannot be reached, the employer must ensure that the Ministry of Labour (“MOL”) is notified, and the MOL must then investigate.

Discrimination and Harassment

Under the Ontario Human Rights Code (“Code”), employers are prohibited from discriminating against or harassing employees on the basis of protected grounds under the Code, including disability, race, ethnicity, family status, and place of origin, among other protected grounds. Employers are also required to take all reasonable steps to ensure that their workplaces are free from harassment under the OHSA.

Employers should be aware that widespread concern about Coronavirus has led to many reports of harassment and discrimination against people of Chinese descent, as well as other persons of Asian descent, due to COVID-19 originating in China. Employers must ensure that they do not treat any employees differently than other employees because of their race, ethnicity, or place of origin. For example, do not single out Asian employees with questions about their travel or health if you are not going to ask all of your employees the same questions.

Given the rise in specific misconduct related to assumptions about Coronavirus, employers should reiterate to employees that discrimination and/or harassment will not be tolerated, and that they must not perpetuate inaccurate stereotypes about the likelihood of any protected group contracting Coronavirus.

Finally, the Code also obligates employers to accommodate employees with work-related limitations arising from a protected ground such as disability or family status, up to the point of undue hardship. In our view, Coronavirus would likely be considered a disability under the Code. Therefore, if an employee has Coronavirus, the employer must accommodate any work-related limitations arising from the virus to the point of undue hardship.

Protected Leaves from Work

Employers should be aware that employees with at least two weeks’ service may be entitled to a number of job-protected leaves under the ESA if they are directly or indirectly affected by Coronavirus.

For example, employees are entitled to up to three (3) days of unpaid Sick Leave each year because of personal illness, injury or medical emergency, which would clearly be available to any employee who contracts Coronavirus.

Similarly, employees are entitled to up to three (3) days of Family Responsibility Leave each year due to the illness, injury, or medical emergency of certain family members, or an “urgent matter that concerns” such family members.

Each year, employees are also entitled to:

  • Up to eight (8) weeks of unpaid Family Caregiver Leave to support certain family members with a “serious medical condition”;
  • Up to twenty-eight (28) weeks of unpaid Family Medical Leave to support certain family members with a “serious medical condition” who are at significant risk of dying within twenty-six (26) weeks;
  • Up to thirty-seven (37) weeks of unpaid Critical Illness Leave to care for certain family members who are under the age of 18 and “critically ill”; and
  • Up to seventeen (17) weeks of unpaid Critical Illness Leave to care for certain adult family members who are “critically ill”.

Employees may also be entitled to an unpaid Emergency Leave under the ESA if an emergency is declared in Ontario under the Emergency Management and Civil Protection Act, although at present there is no indication that such a declaration is being considered by the authorities.

Interestingly, in 2003 the Ontario government passed the SARS Assistance and Recovery Strategy Act, 2003 in response to the SARS outbreak, which provided additional unpaid leaves for the medical investigation, quarantine, or treatment of employees or their family members, in addition to the ESA leaves discussed above. We will continue monitoring the situation and provide an update if similar legislation is passed in relation to COVID-19.

Conclusion

Employers should not panic and should ensure that they take a common-sense approach to prevent and address Coronavirus. Employers should be proactive and ensure that any strategic prevention plan is reasonable in light of the most up-to-date information regarding the actual risk to their workplace, considering all relevant legal obligations. Employers who wish to implement an infectious illnesses policy to specifically address concerns regarding COVID-19 should consider seeking legal advice, particularly if they wish to impose more restrictions on employees than currently recommended by public health authorities.

This blog is provided as an information service and summary of workplace legal issues.  This information is not intended as legal advice.

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