While the Public Health Agency of Canada (“PHAC”) has assessed the public risk associated with the novel COVID-19 strain of Coronavirus Disease as low in Canada, the situation is evolving by the hour. The Government of Canada has currently issued serious travel advisories for China, Iran, and Italy amid reports of widespread positive cases of COVID-19.

As a result, employers have been confronted with significant business challenges and disruptions, giving rise to serious questions:  Can an employer stop an employee from coming in to work if they have traveled to an infected area? Can an employee refuse to work if a co-worker has returned to work from an infected area?

It is important for both employees and employers to inform themselves of their obligations and rights regarding their workplace. Further, there are many resources that can assist employers and employees to ease any challenges and disruptions they face. We look at each of these questions below and provide helpful resources to ensure that you are well-equipped and informed.

While this article will generally apply to most workplaces, please note that health care facilities and unionized workforces may require a more tailored approach to respond to the threat of COVID-19.

Employers’ Internal Health and Safety Policies

(i) Employers should establish a specialized committee to support their employees.

Employers should establish a specialized committee to monitor any developments, implement internal health and safety policies, and communicate same to their employees to prevent the spread of infection in their workplace. Employers may include the following positive obligations on their employees within their health and safety policy:

• To notify their superior if they or someone they are in close contact with has recently travelled to or from an infected area or those areas subject to the Government of Canada travel advisories;
• To remain out of the workplace for a minimum period of two weeks or the time specified by the medical professional for employees who have returned from an infected area or those areas subject to the Government of Canada travel advisories; and
• To immediately seek medical treatment and obey the recommendations of the medical professional regarding self-isolation, quarantine, and other measures to mitigate the spread of COVID-19 where they suspect or display symptoms of COVID-19.

Many employers have begun implementing policies of this nature and expanding upon their work-from-home policies. In addition, employers have cancelled all work-related travel to and from infected areas. While these efforts will likely prevent any potential spread of infection in the workplace, it is important that employers strike the right balance. Employers must remain aware of the potential for workplace harassment, privacy, and human rights considerations in light of these efforts.

(ii) Employers owe a duty to their employees to protect their health and safety in the workplace.

Pursuant to the Occupational Health and Safety Act (the “OHSA”) in Ontario, employers have an obligation to protect the health and safety of others in the workplace and must take any reasonable precautions in the circumstances. If an employee has travelled to an infected area, exhibits symptoms of COVID-19, or was in direct contact with another who exhibits symptoms of COVID-19, then an employer’s duty to protect their workforce may be triggered. These employees should be prevented from returning to work for a period of two weeks unless they have received a letter from their physician which states that they do not pose a risk to their workplace. Employers should also deny access to the workplace to visitors, such as clients, contractors, and other guests. Employers should also consider supplying the workplace with soap, hand sanitizer, appropriate signage and take any other reasonable precautions.

(iii) Employers should be aware of the heightened risk of workplace harassment.

In addition, employers must prepare and enforce their policies addressing workplace harassment. Employers must be aware of the increased risk of workplace harassment in light of COVID-ID, such as derogatory questions or comments regarding a colleague’s race, religious background, ethnicity or place of origin.

(iv) Employers must not over-reach and be cognizant of their employees’ privacy and human rights.  

Employers who wish to implement a screening process to stay informed regarding employees’ health status or travel history should proceed with caution. Targeted questions may expose the employer to liability for privacy and human rights damages. Our human rights legislation protects individuals from any adverse treatment because of perceived illness or disability. Thus, anti-discrimination protections may be triggered where it is believed that an employee may be infected without a reasonable basis for that belief. Targeted screening questions based on employees’ race, citizenship, ethnic origin, place of origin, or disability should be avoided as these are protected grounds under Ontario’s Human Rights Code.

Employees’ Refusal to Work

Under section 43 of the OHSA in Ontario, employees have a right to refuse to work where their work environment endangers their health and safety. Employees must promptly report their refusal and the circumstances for same to their employer to allow for an investigation. Employers must then investigate the matter in the reporting employee’s presence as well as that of a committee member, a health and safety representative, or a worker having knowledge, experience or training, if any. During the investigation, the reporting employee must remain available to their employer in a safe place as close as possible to their work. If a solution is not reached through the investigation, a provincial labour inspector must be contacted. In the meantime, the reporting employee is entitled to maintain their refusal to work. Reporting employees who exercise their entitlement to refuse work may not be disciplined, threatened or dismissed for same.

Leaves of Absence

Pursuant to the Employment Standards Act (the “ESA”), employees who have worked for at least two consecutive weeks are entitled to a total of three unpaid leave days in each calendar year for personal illness, injury or medical emergency. Further employees are entitled to leaves of absence to care for a family member. The ESA defines “family members” broadly to include the following individuals:

1. The employee’s spouse.
2. A parent, step-parent or foster parent of the employee or the employee’s spouse.
3. A child, step-child or foster child of the employee or the employee’s spouse.
4. A grandparent, step-grandparent, grandchild or step-grandchild of the employee or of the employee’s spouse.
5. The spouse of a child of the employee.
6. The employee’s brother or sister.
7. A relative of the employee who is dependent on the employee for care or assistance.

An employee taking leave to care for a family member must advise their employer of same before doing so, or if they must take leave before advising of same, then as soon as possible thereafter. An employer may require their employee to provide reasonable evidence that the employee is entitled to leave to care for a family member. For those that are federally-regulated, the Canadian Labour Code provides similar entitlements for leaves of absences.

In Ontario, employees are also entitled to leave for declared emergencies. However, leave for declared emergencies would only be available where the Canadian government has declared the COVID-19 as a declared emergency. The Emergency Management and Civil Protection Act defines the term “emergency” as follows:

“emergency” means a situation or an impending situation that constitutes a danger of major proportions that could result in serious harm to persons or substantial damage to property and that is caused by the forces of nature, a disease or other health risk, an accident or an act whether intentional or otherwise.

Lost Wages

Employees that are unable to work are not able to collect salary or lost wages during their period of absence; however, there are other options to recover some lost compensation. These options include for example, paid vacation time, federal employment insurance sick leave pay, workplace safety insurance claims, and short-term disability benefits.

On the other hand, employees who are symptom-free but prevented from working are not necessarily entitled to be compensated for that period. However, employers who refuse to pay their symptom-free employees risk being sued for constructive dismissal where these employees can establish that they did not pose a safety risk to their workplace. In addition, a refusal to pay these employees may discourage them from reporting symptoms or seeking treatment.

Key Take-Aways:

• Employers: safety first. Employers should appoint a committee to oversee the development of COVID-19 and implement internal health and safety policies to prevent the further spread of the disease throughout the workplace. Employers should ensure that their policies comply with the applicable employment, privacy, and human rights laws. We strongly recommend that employers seek legal advice before implementing these policies or protocols to minimize exposure to liability.
• Employees: know your rights. You have the right to refuse work where the workplace is unsafe. If you are worried that the infection may spread to your workplace report your concerns to your employer. Your employer has a duty to protect the health and safety of others in the workplace. If you have worked for at least two consecutive weeks, you are entitled to three unpaid leave days each year for personal illness, injury or medical emergency. You may also take leave to care for a family member. If you are unsure which option is best in your circumstances, please seek legal advice.

For further guidance, please contact a member of the employment law group.

Prepared by Sasha Willms and Sarah Reich (articling student).

Resources

World Health Organization 

Public Health Agency of Canada

Government of Canada – Travel Advice and Advisories 

Ontario Public Health 

Centers for Disease Control and Prevention 

Canadian Chamber of Commerce – Is Your Business Pandemic Prepared? 

Canadian Chamber of Commerce – COVID-19 Pandemic Preparedness for Business

Workplace Safety & Prevention Services – Business Pandemic Preparedness Checklist