March 18, 2020
By Taylor McCaffrey LLP’s Labour and Employment Lawyers*
As of March 18, 2020, 9:30am, 569 cases of COVID-19 have been confirmed in Canada. Cases have been reported in Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, Quebec and Saskatchewan. A probable case has also been reported in Newfoundland & Labrador. The Public Health Agency of Canada (PHAC) currently notes that most Canadian employees remain at low risk of infection, there is an increased risk of more severe outcomes for Canadians aged 65 and over, with compromised immune systems, and with underlying medical conditions. There are also increased health risks for Canadian travelers abroad.
We are regularly being reminded of the importance of social distancing and no doubt know someone who is self-isolating due to travel, who has begun working remotely, or has been impacted by a business that has recently closed in an effort to help “flatten the curve”. If you have not already done so, Employers must immediately begin taking proactive steps to examine their workplace readiness for COVID-19, in an effort to minimize the impact of an outbreak on their businesses and ensure employee health and safety. It is important to recognize that in the event of a widespread COVID-19 outbreak in Canada, an employer’s responsibilities under occupational health and safety, employment standards, and human rights legislation will continue as they would with any other illness impacting employees.
The following is intended to provide general guidance to employers to assist them in addressing the potential impacts of COVID-19 in the workplace, and to provide answers to many frequently asked questions our lawyers are seeing in the context of pandemic planning and the COVID-19 outbreak. It is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances, such that this article is not intended to be relied upon or taken as legal advice or opinion. Finally, all should appreciate that this is a fluid situation and the circumstances of this virus are changing daily, if not hourly. For specific issues and questions related to your own workplace circumstances, please contact one of our labour and employment lawyers directly.
Can an employer restrict travel?
The Government of Canada has now announced travel restrictions with respect to all non-essential personal travel outside of Canada, including the closure of the Canada-US Border. Based on these advisories, it is recommended employers restrict all international business travel unless it is deemed absolutely essential. While there have yet to be any governmental restrictions imposed on inter-provincial domestic travel, employers may nonetheless see fit to restrict non-essential domestic business travel as well.
Generally speaking, an employer cannot restrict what an employee does on their own personal time, and therefore, cannot restrict an employee from traveling outside of Canada despite the Government directive, nor can an employer restrict domestic personal travel. However, should employees travel internationally for personal reasons, employers can suggest that they follow Government of Canada Travel Advisories, and that there are risks that they may not be permitted to return to Canada if they fall ill while abroad. Employees should also be reminded that the spread and location of COVID-19 is changing daily. Further, employees who do travel should be advised that their ability to return to the workplace will be assessed upon their return to Canada, and that prior to an employee returning to work, they will have to ensure that they have no symptoms of illness.
Employers should be taking steps now to develop a plan and communicate to employees that their employment and pay may be impacted by a requirement to self-isolate, or any other delay that may result in an extended leave from the workplace, such as the quarantines we have seen with cruise ship travelers. For example, if an employee still elects to travel to an affected area for a vacation that was scheduled prior to the COVID-19 outbreak, despite travel advisories recommending otherwise, it would be appropriate for the employer inform the employee in advance of their departure that a self-isolation period post-vacation may be mandatory, and ensure the employee is aware of whether that period of time away from work would be unpaid. This allows the employee to understand the potential workplace consequences if they chose to continue with their personal travel plans.
Can an employer stop employees who travelled in an area affected by COVID-19 (or who otherwise thinks they have been exposed) from returning to work, even if they are not ill?
The current guidance from PHAC is that anyone who has travelled internationally should self-isolate for 14 days, even in cases where they are not exhibiting any symptoms. Outside of travel, it would depend on the reason why the employee thinks they have been exposed, as well as the nature of the workplace and the risk associated with potential COVID-19 exposure in that workplace as to whether an employee may be asked to self-isolate. Further guidance in this regard should be obtained from local health authorities.
Whether an employee is paid for any self-isolation must be assessed on a case-by-case basis. There may be circumstances where requesting an employee stay off work without pay will be reasonable. It is important to note that where the employer requested the employee travel to an affected area, there is a strong argument that the employer has an obligation to pay the employee for any absence resulting from that travel.
Employers should also review their workplace policies and consider whether they are prepared to extend paid leave to employees who are not ill but choose to self-isolate, whether sick leave or disability benefits can be provided despite the lack of symptoms, whether employees can access vacation, or whether it would be possible for employees to work remotely.
What if an employee contracts COVID-19 and cannot work?
Prohibiting employees who contract COVID-19 from attending the workplace should be no different than how an employer treats any other sick employee, in that any employee exhibiting signs of any contagious illness can be prohibited from attending the workplace until they are well again and confirmed not to be carrying the virus. Further, employees who contract COVID-19, just as any other sick employee, would be eligible to take a certain number of sick days pursuant to employment standards legislation, and may be eligible to claim benefits under a sick leave policy or a disability benefits plan, or where unionized, their collective agreement.
Employers should make themselves aware of the different provincial employment standards legislation (as well as the Canada Labour Code for federally regulated employees) and what it provides with respect to paid or unpaid sick and/or personal days. Note that in many jurisdictions, provincial Governments have responded to the COVID-19 situation by enacting changes to statutory leaves in an effort to assist employees. It is very important that employers continue to watch for updates in their local jurisdiction, as these changes are happening quickly. A chart outlining the various provisions as of today’s date can be found here. These may be accessed by an employee in the event they, or a family member, becomes ill due to COVID-19. In Manitoba, the Employment Standards Code currently provides that employees who have been employed for at least 30 days with the employer are entitled to three days of unpaid leave for personal illness or family responsibility, and up to 17 weeks of unpaid job-protected leave for long-term illness. Federally regulated employees are entitled to up to five days of personal leave, which can be used in the case of personal or family illness, 3 of which can be paid if the employee has been employed with the same employer for three consecutive months. There is also provision for unpaid job-protected medical leave of up to 17 weeks.
In the absence of company paid sick leave benefits or disability benefits coverage, employees may also be entitled to sickness benefits under the Employment Insurance Act (Canada), commonly referred to as “EI benefits”. Provided the employee has accumulated sufficient insurable hours, employees who face a reduction in normal weekly earnings of at least 40% because of illness, injury, or quarantine may be eligible. The Federal Government recently announced changes to EI in response to the COVID-19 situation, in waiving the 1 week waiting period for sick benefits. An employee may be eligible for the sick benefit if they contract COVID-19, are required to self-isolate/quarantine, or care for a family member in self-isolation. This is different than the regular income replacement benefit that an employee may be eligible for if an employer is required to shut down their operations and lay-off employees as a result of the impact of COVID-19 on their business operations. As of this morning, the Federal Government also announced new income assistance benefits for employees and self-employed persons who do not qualify for EI, including:
- A new Emergency Care Benefit of up to $900 biweekly, for up to 15 weeks, to provide income support to workers, including the self-employed, who have to stay home and don’t qualify for paid sick leave or EI.
- A new Emergency Support Benefit to provide support to workers who are not eligible for EI and who are facing unemployment.
It is possible we could see further changes to EI benefits or other income assistance benefits implemented in the future depending on the impact of COVID-19 in Canada over time. Employers should continue to watch for updates and developments in this regard.
Can an employer lay-off employees where business circumstances due to COVID-19 require closure or reduction in the workforce?
Yes. Employers can lay off employees for lack of work. This is not the same as a termination. A layoff implies an intention to call the employee back to work at some point in the future. A termination permanently severs the employment relationship. The difference is important, because if you terminate, all your obligations upon termination (including statutory pay in lieu of notice, and any contractual/common law notice as well) are triggered right away. It is important to consult the specific legislation in your jurisdiction to ensure you are aware of how lay-off is treated differently that termination in your Province. For example, in Manitoba, under the Employment Standards Code, If you intend to call the employee back to work, and the layoff is less than 8 weeks, the employee simply comes back to work. If the layoff continues for more than 8 weeks, then you are deemed to have terminated the employment of the employee as of the first day of the layoff, and your obligations on termination are triggered then. Note that if you pay for benefits/pension during the layoff, the layoff can continue for more than 8 weeks without triggering a termination. There are two main advantages to layoff:
- any potential payment is delayed 8 weeks; and
- if an employee finds a new job and quits during the layoff, you will not owe them anything on termination.
Note that in Manitoba, employees with less than 30 days of service may be dismissed without termination pay.
Either way, a record of employment should be issued, and the employee would be eligible to apply for EI income replacement benefits, subject to the waiting period.
We certainly encourage employers to consider whether there are options to allow employees to productively work from home, or whether productive work could continue at the workplace with appropriate safeguards in place prior to proceeding with any layoffs.
Can an employer fire an employee if they contract COVID19?
No, employers may not terminate an employee or otherwise discriminate against an employee due to physical disability (which includes certain illnesses) under human rights legislation. Recent changes to employment standards legislation in some jurisdictions may also provide for job protection in the event an employee contracts COVID-19 or is required to self-isolate. Employers should also approach any form of discipline towards an employee due to the fact that they have (or may have) contracted COVID-19 with extreme caution. Although COVID-19 has not yet been recognized as a disability for the purpose of human rights legislation, employers should not treat employees differently who have contracted COVID-19 or are required to self-isolate.
Under the Manitoba Human Rights Code, and other equivalent provincial or federal legislation, employers are prohibited from discriminating against employees on the basis of race, ancestry, place of origin, and ethnicity (these grounds may vary in other jurisdictions). Employers must be very cognizant of these obligations and should avoid making assumptions based on these grounds that could adversely affect an individual’s employment . Employers should also ensure that other employees are not treating their co-workers, or even clients or customers, differently based on assumptions. For example, if employees or customers are being treated differently on the basis of a perceived risk of COVID-19, due to the fact that they are a member of the Chinese community, that may amount to discrimination, and employers should be taking active steps to prevent such behaviour in the workplace.
What are an employer’s obligations to ensure the workplace is safe for employees?
Employers have a positive obligation under workplace safety and health legislation to provide employees with a safe work environment to the extent reasonably possible. At this time, this would generally involve employers following the public health advice from PHAC and their local health authority, which currently includes reminding employees of common personal prevention and preparedness measures for viruses such as COVID-19 and other contagious illnesses, including regular hand washing with soap and warm water or an alcohol-based hand cleanser, covering the mouth and nose when coughing and sneezing, and encouraging employees to stay home when sick, regardless of recent travel. In certain workplaces, the employer’s duty may also involve rearranging the workplace to allow for social distancing, or the provision of personal protective equipment. Each workplace should be assessed based on its own circumstances.
If an employee is refusing to work due to a fear of contracting COVID-19 in the workplace, employers must respond in accordance with the work refusal provisions of the Manitoba Workplace Safety and Health Act or equivalent provincial or federal legislation. Work refusal laws differ from jurisdiction to jurisdiction, but generally speaking, work refusals require a danger to exist that poses a threat to a worker’s safety or health in the workplace. Further, an aspect of “reasonableness” often forms part of the assessment as to whether a work refusal is valid. That is, the worker’s refusal must typically be based on “reasonable cause” or “reasonable grounds.” In addition, work refusal laws often speak to whether the risk is “normal” in the course of the work.
For example, under Manitoba’s Workplace Safety and Health Act, a worker has a right to refuse work where he or she reasonably believes it poses a danger to his or her safety or health or safety, or the safety and health of others. “Dangerous” work generally means work involving safety and health risks that are not normal for the job.
In the event of a refusal, employers are generally required to investigate the employee’s concern, and, if appropriate, adopt measures to eliminate or reduce the workplace danger. This investigation and any follow up measures will, in large part, be based upon the current scientific understanding of COVID-19, as well as the nature of the individual workplace, and the specific facts that led to the refusal. Employers must be mindful that they are prohibited from taking disciplinary action against an employee for exercising their right to refuse unsafe work.
Also bear in mind that although the leaves under employment standards legislation would not apply to an employee’s decision to stay home from work to avoid infection, if an employee develops a disabling condition that is related to the virus (e.g., an employee’s severe anxiety), that rises to the level of a disability, they may, under qualifying circumstances, be entitled to use sick leave benefits, or to a reasonable accommodation. It is important to note that many employees may develop anxiety due to COVID-19 that does not rise to the level of a disability, and we encourage employers to refer employees to their EAP programs for support during these times.
Can an employer take an employee’s temperature at work to assess the risk for COVID-19?
This is not recommended or encouraged. Taking employee temperatures could be viewed as a medical exam, and an employer’s ability to conduct a medical exam may be prohibited or limited by privacy or other health related legislation in your jurisdiction. Generally speaking, the utility of employers taking employee temperatures (whether for COVID-19 or for other illness) has been questioned, and we caution employers against doing so in the absence of specific PHAC or local health authority direction.
Can an employer insist on a negative test result for COVID-19 prior to returning them to the workplace?
It will depend on the circumstances as to why a test is being requested, and the testing protocols advised by your local health authority as to whether an employee will be permitted to have a test conducted. Therefore, the practical reality is that an employee may not be in a position to obtain a test result despite an employer’s desire for one. For example, in Manitoba, testing for COVID-19 is not available to anyone who wants it at this time. It is limited to only those who have been referred to a testing location by Health Links, following a telephone assessment that indicates certain criteria are met indicating testing is warranted. An employer’s insistence that an employee get a test is not one of the criteria that would indicate testing is warranted. Note that in some jurisdictions, new legislation has been enacted in light of COVID-19 which also restricts an employer’s ability to insist on a doctor’s note before an employee is able to obtain sick benefits and/or return to work.
If an employer learns that an employee has a suspected or confirmed case of COVID-19, does the employer have a responsibility to report this information to PHAC?
There is currently no legal obligation for an employer to report a suspected or confirmed case of COVID-19 to PHAC or another provincial health authority. The healthcare provider that receives the confirmation of a positive test result is responsible for reporting this information in accordance with PHAC guidelines and applicable government regulations. Employers should also be mindful that employee privacy rights with respect to medical information still exist despite the COVID-19 outbreak, and therefore, employers should exercise caution and only be disclosing the minimum amount of information necessary to ensure workplace safety and health if an employee has a suspected and confirmed case of COVID-19. Employers should consult the privacy legislation that applies to their workplace and seek further legal advice if they are unsure of their disclosure obligations.
Practical Tips for Pandemic Planning
The following tips for pandemic planning will hopefully assist employers in taking proactive steps to protect their workplaces and the safety of employees:
Plan for the impact of a pandemic on your business
- Identify a pandemic coordinator and/or team with defined roles and responsibilities for preparedness and response planning.
- Identify essential employees and other critical inputs (e.g. raw materials, suppliers, products) required to maintain business operations by location and function during a pandemic.
- Train and prepare ancillary work force (e.g. contractors, employees in other job titles/descriptions, retirees).
- Establish an emergency communications plan and review and revise as necessary.
- Implement an exercise/drill to test your plan and revise periodically.
Plan for the impact of a pandemic on your employees and clients/customers
- Implement guidelines to modify the frequency and type of face to face contact (e.g. hand shaking, seating in meetings, office layout) among employees and between employees and clients/customers.
- Encourage and track vaccination for employees, where vaccination available and recommended.
- Forecast and allow for employee absences during a pandemic due to factors such as personal illness, family member illness, public transportation closures, school and/or business closures.
Establish policies to be implemented during a pandemic
- Establish policies for employees who have been exposed to pandemic illness, are suspected to be ill, or become ill at the workplace.
- Establish policies for preventing pandemic illness spread at the workplace (e.g. hand washing protocols, promoting respiratory hygiene, cough etiquette).
- Establish policies for flexible work hours (e.g. staggered shifts).
- Assess sick leave or employee absenteeism policies with a view to flexibility. For example, in the event of a widespread pandemic illness outbreak, obtaining medical certificates for any illness may be difficult or delayed, and place undue pressure on an already overburdened health care system.
Allocate resources to protect your employees and customers during a pandemic
- Provide sufficient and accessible infection control supplies (e.g. hand hygiene products) in all business locations.
Communicate to and educate your employees
- Provide training to employees on your pandemic preparedness and response plan.
- Develop platforms (e.g. hot lines, dedicated web sites) for communicating pandemic status and actions to employees, vendors, suppliers, and clients.
- Ensure that communications are culturally and linguistically appropriate.
- Develop and disseminate programs and materials covering pandemic fundamentals (e.g. signs and symptoms of pandemic illness, modes of transmission).
Coordinate with external organizations and help your community
- Share best practices with other businesses in your communities to improve community response efforts.
- Collaborate with local and/or provincial public health agencies and/or emergency responders about the assets and/or services your business could contribute to the community.
For further updates on COVID-19 and your obligations with respect to workplace safety and health, information is being regularly provided from the following sources:
- World Health Organization
- Public Health Agency of Canada website or information hotline: 1-833-784-4397
- Government of Canada Travel Advice and Advisories
- Government of Manitoba – Department of Health, Seniors and Active Living – Health Links–Info Santé at 204-788-8200 or 1-888-315-9257 (toll-free)
- Government of Manitoba – Labour & Regulatory Services – Workplace Safety and Health
- SAFE Work Manitoba
- Manitoba Human Rights Commission
*We are grateful for the assistance of Kelby Loeppky, Articling Student-at-Law, who has also contributed as an author to this article.