Written By John R. Gilmore, Carl Cunningham and Stephanie Henry
The novel Coronavirus (COVID-19) was first reported in Wuhan, China, on December 31, 2019. Since then, COVID-19 dominates domestic and international news sources as the virus continues to spread globally.
On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a pandemic, citing the spread of the virus to 114 countries, with more than 118,000 cases confirmed worldwide.1 As of today, there are 138 confirmed cases in Canada and that number is expected to grow. At present, the Government of Canada maintains that the public health risk associated with COVID-19 remains low for the general population.
It is clear that the impact on Canadian workforces could be significant. The legislative and regulatory environment for employers generally imposes a myriad of obligations in these circumstances. These obligations take on different context in the face of COVID-19. Employers must prepare to respond effectively and appropriately to an ever changing situation.
In this update, we provide an overview of some of the key employer obligations engaged by COVID-19 and provide practical advice on coping with these challenges.
This update pertains broadly to Canadian work environments, however, some work forces require special consideration, including for example, health care settings and workforces governed by collective agreements. Bennett Jones is providing extensive advice to employers nationwide, both union and non-union and provincial and federally regulated, regarding COVID-19, and is well equipped to provide tailored advice to all employers.
1. What Are an Employer's Obligations?
a. Take Reasonable Care to Protect Health and Safety of Workers
Occupational Health and Safety legislation across the country generally imposes a duty on employers to take all reasonable and practicable measures to protect the health and safety of workers2 on a work site and other persons at or in the vicinity of the worksite.3
COVID-19 presents a risk to the health and safety of workers and accordingly, employers must take reasonable steps to address this risk. What is appropriate and reasonable depends on the nature of the organization and the workforce. While the following are subject to change, at present reasonable steps may include the following:
- Require workers to notify management or human resources if they, or someone they have been in close proximity to, is diagnosed with COVID-19 by public health officials, or has been directed to quarantine by public health officials.
- Where a worker is exhibiting symptoms of COVID-19, the worker should be directed to public health authorities to assess whether they should quarantine themselves, as directed. The worker should not return to the workplace until they have been cleared by public health to do so.
- Where a worker has recently travelled to an area with widespread or ongoing community spread of COVID-19 (i.e., Level 3 Travel Health Notice Countries issued by the Centers for Disease Control and Prevention (CDC)), the worker must be removed from the workplace and denied access to the workplace for a period of at least 14 days from the last day they were in the affected area. At present, the CDC lists China, Iran, Italy and South Korea as Level 3 Health Notice Countries. Note that there was also widespread transmission on Grand Princess cruise ships.
- Require workers to notify management or human resources if they, or someone they have been in close proximity to, travelled to a Level 3 Travel Health Notice Country.
- Remind their workers to wash their hands frequently and ensure that hand sanitizer and soap are readily available for workers to use. Employers should increase signage in this regard.
- Remind workers, where possible, to prepare to work from home (e.g., take laptop home with them each evening).
- Cancel non-essential business travel to high-risk areas.
- Advise workers to carefully monitor the Government of Canada's Travel Advice and the US State Department Travel Advisories (if transferring through the United States), and to consult the same before embarking on any personal travel. Consider advising workers to keep human resources and/or management apprised of all travel plans.
- Ensure contact information for all workers is up to date.
- Review and temporarily update employer policies on paid sick time, unpaid sick time, leaves of absences and working from home. Employers should consider expanding paid sick leave for COVID-19 related absences and allowing employees greater scope to work from home, until the outbreak is contained.
Occupational Health and Safety Legislation also affords employees, generally, the right to refuse work, where they have reasonable grounds to believe that there is a dangerous condition at the worksite.4 Employers should be prepared to receive work refusals on the basis that a worker is concerned that working in the workplace may expose them to the virus. The relevant Occupational Health and Safety legislation provides a framework for employers to investigate the workplace danger and respond to the same. Employers should assess each situation based on its facts and follow the framework.
b. Provide Statutorily Required Unpaid Leaves
As above, the cases of COVID-19 in Canada are expected to rise. Accordingly, some employers will have workers who either contract the virus or come in close proximity with someone who has.
Employment standards legislation affords employees unpaid, job protected leaves where an employee is dealing with an illness or must care for someone with an illness. In each case, there are qualifying requirements and specified periods of time in which an employee can be away from work. The employer is precluded from terminating the employee's employment while they are away on such a job protected leave.
By way of example, in Alberta, eligible employees can take up to 16 weeks of unpaid leave due to illness, injury or quarantine (see Division 7.5 of the Alberta Employment Standards Code, RSA 2000, c E-9)), and up to 27 weeks of unpaid leave to care for seriously ill family members (see Division 7.2 of the Alberta Employment Standards Code). In Ontario, employees are entitled to take up to three days of unpaid sick leave and an additional three days of family responsibility leave to care for sick family members, as well as up to eight weeks of family caregiver leave (see sections 49.3 and 50(1) of the Employment Standards Act, SO 2000, c 41). In British Columbia, eligible employees can take up to five days of unpaid leave to meet responsibilities related to the care or health of anyone in the employee's immediate family (see section 52 of the Employment Standards Act (RSBC 1996, c 113, s 52). In the federal sector, eligible employees can take five days to treat an illness and up to 17 weeks to support a critically ill adult family member (see sections 206.6(1) and 206.4(2.1) of the Canada Labour Code (RSC 1985, c L-2)).
c. Administer Policies and Respond to Crisis in a Non-Discriminatory Manner
Applicable human rights legislation prohibits discrimination or adverse treatment in employment practices on grounds such as ancestry and place of origin. At present, most reports indicate that COVID-19 originated in Wuhan, China. China as well as South Korea continue to be Level 3 Travel Health Notice Countries. The virus has also spread to many other Asian countries, including Japan, Thailand and Vietnam. Unfortunately, in the past, where a communicable disease originated in an Asian country (such as SARS), the Canadian-Asian community faced stigmatizing and discrimination.
An employer has an obligation to take reasonable steps to protect the health and safety of its employees, which will likely include requiring employees who have recently travelled to high risk areas to remain quarantined at home, until they are cleared to return to work. However, employers must be careful not to isolate, segregate or adversely treat employees solely because the employee has ancestral roots or originates from a high-risk area, or another area where the virus has spread. Moreover, employers must be vigilant to ensure that their own employees are not similarly discriminating against their colleagues. In this regard, the Ontario Human Rights Commission issued a statement urging Ontarians to "respect the human rights of Ontario's East Asian community in light of […] the novel coronavirus in Toronto". The Commission urged Ontarians to "heed the lessons from the SARS crisis" where East Asians in Ontario "were stigmatized, discriminated against and harassed […]".
Human rights legislation also precludes discrimination on the basis of a disability and requires that employers accommodate disabilities to the point of undue hardship. A cold or ordinary flu is generally not considered a disability. While a COVID-19 diagnosis, or perceived COVID-19 diagnosis, has not officially been declared an "illness" or "disability" within the meaning of human rights legislation, it very likely falls within this category. During the SARS outbreak, the Ontario Human Rights Commission declared that that "disability" covered new illnesses, including SARS. Employers can expect the application of human rights legislation to treat COVID-19 (both actual and perceived) as a disability, and thus, a prohibited ground of discrimination. Furthermore, the human rights regulatory regime also requires employers to accommodate a person with COVID-19.
Such accommodation includes providing the employee with a job protected leave of absence, and further accommodation when the employee returns to work, is no longer contagious and largely recovered, but perhaps in a weakened state.
2. Practical Issues Facing Employers Presently
Canadian employers will soon (if not already) face issues related to allowing employees to remain at home either because they are required to quarantine, or because they have contracted COVID-19. Self-isolation and quarantining, where appropriate, are critical to fighting the pandemic.
Crucially, employers do not want employees returning to the workforce, or hiding their symptoms/exposure, simply because the employee cannot afford to be away from the workforce, unpaid. However, the need or opportunity for quarantine is ripe for abuse by employees looking for a 14-day break (paid or unpaid) from the workplace. Employers will need to make real-time decisions, while balancing their obligations to ensure a safe workplace, employee privacy rights and their business needs. Below we provide some practical solutions to address these challenges.
An employer may also consider, where it has the resources, a crisis management hotline to coordinate employee questions, direct them to public resources and receive information from employees regarding symptoms, travel and exposure, with appropriate privacy safeguards.
What if an employee contracts COVID-19?
If an employee has contracted COVID-19, that person:
- should remain at home, away from the workplace;
- may be eligible for paid sick leave under the employee's employment contract or the employer's policies;
- may be eligible for short-term disability insurance benefits under group benefits programs;
- may be eligible for employment insurance benefits as the Employment Insurance Act (SC 1996, c 23) extends benefits to employees facing a reduction in "normal weekly earnings" of at least 40 percent due to illness, injury or quarantine. (Further, on March 11, 2020, the Federal Government announced that it would waive the one-week waiting period for people who are in quarantine or have been directed to self-isolate due to COVID-19.)
Employers can also consider extending paid sick leaves (even where the employee is otherwise not eligible under their contract), on a temporary basis, to help address the outbreak.
What if an employee has not contracted COVID-19, but needs to be quarantined?
The situation is more complicated in the case of quarantine, self-isolation or suspected exposure. This is especially the case where the employee's duties do not permit them to work remotely and perform their work.
There will of course be instances where employees clearly should quarantine at home. Employers should follow the guidance of public health officials regarding when persons should quarantine themselves and for how long they should do so. As the situation evolves, instances where individuals should quarantine themselves will also evolve. Employers should stay on top of these updates and require that their employees report when they fall into a category that requires quarantine.
As a first step, employers need to regularly circulate inquiries, requiring employees to disclose if there is a circumstance where quarantine is appropriate, namely, if they:
- Have recently traveled to (or have been in close proximity to someone who has traveled) to a country with a Level 3 Travel Health Notice, issued by the CDC. At present, those countries are: China, Iran, Italy and South Korea.
- Have been informed by public health officials that they are suspected to have, or may in fact have, contracted COVID-19.
- Have been in close proximity to someone who has been informed by a public health official that they are suspected to have, contracted COVID-19.
- Are exhibiting symptoms of fever, cough and trouble breathing.
- Are exhibiting respiratory symptoms after returning from abroad.
Employers should exercise caution and defer to the guidance from public health officials. However, in cases where an employee has a reasonable basis to quarantine themselves but has not exhibited any symptoms, employers should consider not requiring medical documentation.
Where possible, employees should be permitted to work from home, and receive their regular rate of pay and benefits. In terms of pay for quarantined individuals who are not able perform their duties remotely, employers should:
- inquire with their group benefits providers whether or not "quarantined" employees are eligible for short-term disability benefits;
- consider extending their paid sick leaves to cover employees who are required to quarantine themselves; and
- advise employees of potential employment insurance benefits under the Employment Insurance Act.
There are potential risks, including constructive dismissal associated with not paying employees or discontinuing benefits while employees are under quarantine. We would encourage employers to obtain legal advice to discuss the appropriate strategy for their business.
If you have any further questions, please contact a member of our Employment Services group.
1 WHO Director General Dr. Tedros Adhanom Ghebreyesus made this statement during a media briefing on COVID-19 on March 11, 2020 in Geneva.
2 Check your local Occupational Health and Safety legislation, but "workers" under such legislation can extend beyond employees and include contractors on site.
3 Section 3(1) of the Alberta Occupational Health and Safety Act (SA 2017, c O-2.1), Section 115 of the British Columbia Workers Compensation Act (RSBC 1996, c 492) and Section 25(2) of the Ontario Occupational Health and Safety Act (RSO 1990, c O.1).
4 By way of example, see Section 31(1) of the Alberta Occupational Health and Safety Act, Section 43 of the Ontario Occupational Health and Safety Act, and Section 3.12 of the British Columbia Occupational Health and Safety Regulation (BC Reg 296/97).