THE EMPLOYERS' EDGE
COVID-19: Get the Employers’ Edge Over 2019 Novel Coronavirus
UPDATED MARCH 19, 2020
Employers owe legal obligations to their clients, customers, the public, and of course their employees. At the same time, employers also have certain rights that are closely related to their responsibilities. The coronavirus has led employers to seek information regarding their rights and responsibilities in this exceptional climate. As always, employers should #ASKCCPartners!
Here are a few questions that our lawyers have been answering recently in light of public concern over COVID-19:
- Can we require our employees to advise us if they have COVID-19?
Employers are not entitled to require employees to disclose diagnoses of medical conditions under normal circumstances. However these are not normal circumstances. Ontario’s Ministry of Health has stated that “Coronaviruses are spread mainly from person to person through close contact, for example, in a household, workplace or health care centre.” The Government of Canada has stated that a person should self-isolate, if for example “local public health has identified you as a close contact of someone diagnosed with COVID-19”.
One would expect that one would voluntarily disclose to their close-contact co-workers or their employer if they are experiencing symptoms associated with COVID-19. In the circumstances employers may consider a temporary requirement that employees disclose a positive diagnosis of COVID-19 where there is a risk of infection through close contact.
Workers who have COVID-19 or are exhibiting symptoms may be required to stay home from work until they are cleared to return by a doctor. A doctor’s certificate should contain objective medical information to the extent necessary to maintain a healthy workplace, accommodate the employee, or prepare for their absence.
Finally, employees should know that reporting an actual or potential COVID-19 case will not result in any negative or adverse treatment by the employer. That could be viewed as an illegal reprisal and land an employer in serious hot water.
- Can we require our employees to advise us if they have travelled to an affected area, or been around someone with COVID-19?
Yes. It is recommended that employers require employees or others as appropriate to disclose whether they have travelled outside of Canada within the past 14 days. The Government of Canada has given clear guidance that anyone who has travelled outside of Canada must self-isolate for a period of 14 days, so be prepared for employees to work from home where possible. This guidance includes individuals who have travelled to the United States.
Likewise, it is recommended that employers require employees to disclose close contact with a COVID-19 patient, self-isolate for a period of 14 days, and provide clearance from a doctor before returning to the workplace.
Is an employee who is off work due to COVID-19 entitled to be paid?
The answer to this question depends on your workplace policies, and the employment contract or collective agreement. If the employee is entitled to paid leave for illness, or if they elect to use paid vacation days, then they should be paid while away from work. Otherwise, the leaves provided by the Employment Standards Act, 2000 in Ontario protect the employee’s job, but do not require an employer to make payment. Consider further whether the employee has access to short-term disability benefits, and remember that they may be able to access Employment Insurance benefits. The Government of Canada has announced that it will waive the one-week waiting period for individuals who are in quarantine or have been directed to self-isolate and are claiming Employment Insurance Sickness benefits.
For employees not eligible for Employment Insurance benefits, the Government of Canada has introduced an Emergency Care Benefit of $900 every two weeks for up to 15 weeks.
Employees also have the option of accessing an unpaid job protected leaves if they are required to be off work as a result of COVID-19. In addition existing protected leaves under the Employment Standards Act, 2000, the Government of Ontario announced its intention to immediately introduce legislation amending the Employment Standards Act, 2000 by providing for a new job protected leave of absence where an employee:
- is under medical investigation, supervision or treatment for COVID-19;
-is acting in accordance with an order under the Health Protection and Promotion Act;
-is in isolation or quarantine;
-is acting in accordance with public health information or direction;
-is directed by their employer not to work; or
-needs to provide care to a person for a reason related to COVID-19 such as a school or day-care closure.
Does WSIB cover COVID-19?
The Workplace Safety and Insurance Board receives infection disease claims, and benefits may be available to an employee who contracts coronavirus as a result of work-related exposure. Employers should consider whether they really require employees to conduct travel to “affected areas”, or whether alternate arrangements can and should be made in the current environment.
What if an employee refuses work due to fear of contracting COVID-19?
Employees, with certain exceptions, have the right to refuse work that they believe to be unsafe as a result of the “physical condition” of the workplace. The Occupational Health and Safety Act sets out a specific procedure that must be followed in Ontario in the event of any work refusal. The employer must place the employee in an area where they feel safe and perform an investigation into the circumstances surrounding the refusal. If the employee is not satisfied with the resolution of the investigation and maintains their refusal, the employer must contact the Ministry of Labour and trigger an external investigation.
- What are our options?
Each case turns on its specific facts and circumstances, but employers have options with how they will operate during the COVID-19 outbreak. Some options to consider including the following:
- Design and circulate an infectious-disease policy and enforce it;
- Encourage healthy habits in the workplace, including hand-washing.Provide hand-sanitizer;
- Limit work-related travel and prepare alternate arrangements for conducting business;
- Implement or extend your work from home policy;
- Know what medical information to ask for, and be consistent among all employees.Do not request different or more information based on an employee’s racial or ethnic background;
- Ensure that all medical information received is handled confidentially.Ensure that medical information is stored separately and securely, and not disclosed unless absolutely necessary;
- Be prepared to respond to work refusals by understanding employees’ rights to refuse unsafe work, and employers’ responsibilities to investigate with a joint health and safety member (if applicable);
- Limit visitors to the workplace.
We can look to past public health incidents such as SARS and the H1N1 virus for guidance in responding to the issues that are arising out of COVID-19. There is no perfect one-size-fits-all answer to any of the above questions, so employers should be mindful of first principles respecting workplace health and safety, privacy, and accommodation. The lawyers at CCPartners have the experience to help you navigate the current climate, and tailor an appropriate strategy to your unique circumstances.
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