COVID-19 has currently taken over the world, and the world of employment law is no exception. In order to assist you in these dire times, this blog post will provide you with some practical recommendations to ensure you are complying with your legal obligations as an employer. Employees as well will benefit from reviewing this blog post to understand their rights. The reality is that this is a relatively novel situation and employers, employees and Employment Lawyers are all working through the issues that this has created.
On one hand, employers have a legal obligation to ensure the health and safety of their workers under the Ontario Occupational Health and Safety Act. On the other hand, the fundamental basis of the employment contract is that employees are to work and be compensated; preventing them from doing so can constitute a constructive dismissal. And, on the mythical third hand, employers have a legal obligation to ensure that their workplaces are free from discrimination and harassment based on protected grounds under the Ontario Human Rights Code (the “Code”). Treating an individual differently because of ethnicity, race or place of origin is prohibited. Thus, employers must be careful and ensure that policies and procedures are reasonable and applied consistently, and that employees are not singled out due to any of the protected grounds under the Code.
What should you do with respect to employees returning from travel?
Regardless of whether an employee has traveled to a high-risk or a low-risk destination, the Public Health Agency of Canada (“PHAC”) asks that individuals returning from travel monitor their health for fever, cough and difficulty breathing for 14 days after their arrival in Canada. If they have these symptoms, PHAC recommends that they should call the relevant public health authority (1-866-797-0000) to inform them and to obtain advice on what they should do.
Any employees who have recently travelled to a high-risk destination or who have been in contact with someone who has been to a high-risk destination, regardless of whether or not they are exhibiting symptoms, should report their situation to Human Resources immediately as well as contact a health care provider. Employers would be wise to confirm whether such employees have 1) any virus-like symptoms, and 2) have been in contact with anyone that is believed or suspected to have symptoms of coronavirus. In these scenarios, a medical clearance can be requested before the employee returns to work, or a self-quarantine can be requested for the usual 14 day period.
- If an employee is unwell with virus-like symptoms, they should contact a health care provider and inform them. The health care provider will provide the employee with advice on what they should do under the circumstances. The employee should also contact Human Resources or the relevant representative of their workplace in order to keep them updated. The employer should ensure that employees are aware of the steps that they need to take under these circumstances, and maintain clear communication throughout the process.
- If the health care provider says the employee should remain off work, the first 3 days can be taken as unpaid sick days, in accordance with their statutory entitlement in Ontario (or more if the employer’s policy or the employee’s employment contract provides for a more robust sick leave entitlement, whether paid or unpaid), unless the employee has already used up their sick days. Employers can also allow employees to take paid vacation time if they prefer that as opposed to providing unpaid leave. As well, employers should inform employees that they may be eligible for Employment Insurance (“EI”) sick leave benefits or short-term disability benefits. In particular, it is important to note that the government has waived the one week waiting period for eligibility for EI sickness benefits.
- If the health care provider does not specifically recommend that the employee remain off work, but as the employer, you want the employee to be physically away from the workplace out of an abundance of caution, you can ask them to work remotely for the usual quarantine period of 14 days. If that is not possible, you can ask the employee to self-quarantine, which should be provided as a paid leave of absence. While theoretically, an employer could require an employee to use their vacation days or, if applicable, paid sick days if the employer’s policy provides for same, we would recommend not to do so under these circumstances, given that the health care provider has not recommended that the employee remain off work and it is the employer that is choosing to impose the quarantine.
- In any event, there should be a reasonable basis for assessing the safety risk of the employee attending work and for refusing to allow an employee to do so.
- If the employee is well, you can still ask them to self-quarantine and work from home if you have a reasonable basis for believing that they pose a safety risk. If the employee is unable to work from home (e.g. an employee who operates machinery), then ideally, you should provide them with a paid leave of absence as opposed to an unpaid leave.
If the employer prevents symptom-free employees from working but does not pay them during that time, there will be an increased risk of liability. The question is, does the employee pose a safety risk? If so, the employer may be able to show that its decision was based solely on legitimate safety reasons. In addition, if an employee is not paid for the time that they are prevented from working, they may be discouraged from reporting any virus-like symptoms or contacting a health care provider, which would be more costly for the employer in the long-run.
The bottom line
Ultimately, you must balance your duty to provide a safe work environment with your contractual obligations and your duties pursuant to human rights. You cannot arbitrarily refuse to allow someone to attend at the workplace, or to work at all; there must be a legitimate and defensible reason for doing so. If there is cause for concern and the employee can telecommute, that should be put in place. If they cannot telecommute but a legitimate concern exists, they should be excluded from the workplace by placing them on a paid leave. If a paid leave is not possible because it would cause you to go bankrupt, for example, then you should seek legal advice before preventing an employee from working without any pay.
All employers (and Employment Lawyers) are working their way through the issues that arise out of the coronavirus; it is a new situation that raises several legal issues. You should be prepared to defend any decisions and actions on the basis of your duty to ensure a safe work environment. Decisions should be made based on objective criteria and not subjective views or stereotypes.
This is a good time to remind your employees of your sick leave policy, including clarification of which circumstances and symptoms will require an employee to stay home from work. If you currently do not have a sick leave policy in place, it would be wise to implement one. It’s also a good time to issue a company-wide statement to caution employees against travel to areas with a government travel health notice (whether for business or personal reasons).
You may wish to consider a policy for extended leave (paid or unpaid) or accommodation for any employees who are affected by the coronavirus. We can work with you to develop a tailored emergency action plan and recommend that you provide appropriate training and support to managers regarding how to handle communications with employees during this time.
We strongly recommend that employers obtain specific legal advice with respect to their particular situation. We regularly assist employers with drafting policies and procedures and would be happy to assist you through this situation to establish appropriate protocols. If issues arise relating to specific employees or groups, contact us so that we can guide you through the decision-making process and help to minimize liability.
We also assist employees with understanding and protecting their rights. Contact us if you think your rights are being violated or if you want to understand what your rights and obligations are.
We will continue to monitor the situation and encourage you to do the same.
Monday March 16, 2020
UPDATE: The Public Health Agency of Canada has declared all travel outside of Canada as high risk and further advises as follows: All travellers arriving to Canada from other international destinations must self-monitor for symptoms, and should consider self-isolation for 14 days as an additional precaution.
Accordingly, based on safety concerns, employers would likely be able to justify requiring employees who have returned to Canada to either work remotely if they can do so or take a leave of absence, as well as recommending that they self-quarantine.
The situation is evolving rapidly and employers should continue to monitor the updates.
Thursday March 19, 2020
UPDATE: On March 16, Canada announced it was closing its borders and denying entry to anyone who is not a Canadian citizen or permanent resident, except for immediate family members of Canadian citizens, airplane crew members, diplomats, and US citizens.
On March 18, the United States and Canada entered into a joint agreement to suspend non-essential travel between the two countries. Trade will not be affected.
Starting March 18, most international flights to Canada will be directed through four airports. The Canadian government continued to urge Canadians to return home while they still can.