As of March 10, 2019, COVID-19, a novel coronavirus, has appeared in four provinces: Alberta, British Columbia, Ontario, and Quebec; with one reported death in BC. Although COVID-19 has not yet reached all of Canada, we are reminded daily through news headlines, social media, and even water cooler conversation that there is potential for cases to increase. While it is important to remember that at this time, the Public Health Agency of Canada notes that without sustained human-to-human transmission, most Canadian employees are not at significant risk of infection, employers should nonetheless be examining 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. Proactive planning should be occurring now.
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. For specific issues and questions related to your own workplace circumstances, please speak contact one of our labour and employment lawyers directly.
Can an employer restrict travel?
The Government of Canada has posted travel health notices for non-essential travel to many areas due to the outbreak of COVID-19 including: China, Hong Kong, Iran, Japan, Northern Italy, Singapore and South Korea. Based on these advisories, it is recommended employers restrict business travel to these areas.
Generally speaking, an employer cannot restrict what an employee does on their own personal time, and therefore, cannot restrict an employee from traveling to affected regions. However, should employees travel to these areas for personal reasons, employers can suggest that they follow Government of Canada Travel Advisories, and also be reminded that the spread and location of COVID-19 is changing daily. Further, they 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 provide confirmation that they have no symptoms of illness.
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?
Depending on where they have travelled or 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, an employee may be asked to self-isolate, even in cases where they are not exhibiting any symptoms. 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 be taking steps now – and definitely before an employee proceeds to any personal travel – to 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 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.
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. A chart outlining the various provisions 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 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. It is worth noting that during the 2003 outbreak of SARS, the federal government implemented special loss of income relief for certain affected employees. It is possible a similar extension of EI benefits could be implemented if COVID-19 becomes widespread in Canada. Employers should continue to watch for updates and developments in this regard.
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. 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 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 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.
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
Thank you to Kelby Loeppky, Articling Student-At-Law, for her assistance in the preparation of this article.