As the provincial and federal strategies to address the COVID-19 pandemic evolve, businesses need to stay up to date on their rights and their obligations to employees
By Jackie Clark
The World Health Organization has declared COVID-19 as a pandemic and Premier Doug Ford has enacted a state of emergency in Ontario; we are living through exceptional times. With this altered societal situation, many business closures or workplace changes have occurred, and employers should understand their obligations.
The Conference Board of Canada hosted a webinar about employers dealing with COVID-19 on March 19. Andrew Shaw outlined important information for the present situation. He’s a partner at Baker and Mackenzie LLP and expert on employer and compensation law.
When collecting employee medical information, “employers are usually not allowed to ask for a diagnosis, but may be able to in this instance in order to fulfill their health and safety obligations for their entire workforce,” Shaw said.
Employees who test positive for COVID-19 should stay home to self-isolate and recover.
“Occupational health and safety legislation across the country states very clearly that the employer is responsible for ensuring the health and safety of its workers. The (employer) must take every reasonable precaution” to ensure the disease is not spread in the workplace, Shaw said.
The employer should have a supportive conversation with the person who has contracted the virus and discuss who to inform within the company.
“Employers can ask employees to self-declare,” or can ask directly if they have positive diagnoses, are experiencing symptoms, have been in close contact with someone with symptoms, have travelled to affected areas, or have been in close contact with someone who has been to an affected area, he said.
“There are privacy and human rights concerns related to these questions, but they need to be asked. So, (employers should) keep a confidential and sensitive manner,” Shaw explained.
In certain jurisdictions, privacy commissioners have released statements that employers can refer to. However, the Information and Privacy Commissioner of Ontario has yet to make such a statement.
“Frankly, the reality of the situation is unclear. But, in my mind, a public health emergency might ultimately be deemed to trump privacy concerns if issues are dealt with delicately, reasonably, and hopefully, with consent,” Shaw said. “What doesn’t change is that employers should use and disclose the health information that they have on a need-to-know basis, or as required by public health officials.
In terms of compensation, the worker may receive pay through contractual sick or disability pay, federal employment insurance and, depending on how the individual contracted the illness, he or she could be eligible for workers’ compensation.
“Generally, a worker who has suffered from COVID-19 will have the right to be treated in the same way as an employee who has suffered from any other applicable form of temporary illness. A disability policy may or may not extend to cover an individual who is not sick, but who is subject to quarantine, either self-imposed or government mandated. In the case of quarantine, even if not expressly addressed under benefit plan or policy document, employers may wish to remain flexible in the administration of benefits,” Shaw said.
The Ontario government passed The Employment Standards Amendment Act (Infectious Disease Emergencies), 2020, which provides job protection for employees who are in isolation or quarantine due to COVID-19, or those individuals who need to care for dependents with the disease. The province passed the act on March 19 and it is retroactive to Jan. 25. This legislation does not mean that employees need to be paid; rather, their jobs must be protected.
“An employer may not discipline or terminate an employee who is unable to come to work because of medical or health officials that have quarantined him or her or advised them to self-isolate … in connection to COVID-19,” Shaw said.
An employee may miss work in cases other than a positive diagnosis.
“If an employer or the government has requested that an employee self-quarantine, or has asked staff to go on leave as a result of COVID-19, in other words has essentially closed their office, and they cannot work from home, these employees do not have to be paid. Employers can make the decision to pay these employees that are on leave if they want, but it ought to be communicated that it is temporary and gratuitous,” Shaw explained.
He cautioned against setting a precedent that you will pay for employees to stay home. If employee can work from home, they are entitled to usual pay.
“A difficult question arises around employees that are subject to self-isolation or quarantine, but who are not themselves ill. It is possible that a broadly worded sick leave policy may provide benefits for such a situation. If a policy does not provide for such coverage, then employers can consider extending benefits on a gratuitous basis, rather than having employees apply for employment insurance,” he added.
If employees are required to report to work, employers must address their fears and concerns, and communicate protocol put in place to protect their health and safety. Additional personal protective equipment is recommended when possible.
“Employers have a duty to accommodate employees in relation to COVID-19 unless it would amount undue hardship based on cost or health and safety,” Shaw said.
Employers may also have shut-downs, or enact temporary lay-offs and voluntary agreements with employees, Shaw said.
“Voluntary agreements with employees (could include) … reduced hours or pay, … unpaid leaves of absence, similar to a temporary layoff, or work-sharing agreements. I think that all of these are good ideas if consent is obtained,” Shaw explained. Employers need written documentation to avoid misunderstandings.
Currently, “temporary layoffs in Ontario cannot exceed 13 weeks in a consecutive 20-week period,” Shaw said. Anything beyond that length of time is considered termination. Employers should keep up to date on specific provincial requirements, which may evolve during the pandemic.
“When issuing temporary layoffs, employers should complete the record of employment for their employees as soon as possible, and state very clearly that the reason for it is a lack of work due to emergency decree and COVID-19” which will help with government processing, Shaw explained. The employer may want to consider topping up employment insurance payments.
Finally, Shaw addressed the issue of employees’ refusal to work.
Employees claiming the right to refuse unsafe work “is something that is definitely happening. Occupational health and safety legislation outlines a specific work refusal procedure that must be followed if an employee refuses to work on the basis of health and safety,” he said.
The employer can’t threaten to discipline the employee, and must investigate with a health and safety representative. If no resolution is reached, the situation must be reported to the Ministry of Labour, Shaw explained.
Paramedics and many health care workers are exempted from the right to refuse work.
As a precedent, “in the 2003 SARS outbreak, many workers refused to work under the work refusal provision due to the fact that they would be exposed to individuals returning from countries where the illness was prevalent. In the cases where these work refusals were reviewed by an appeals officer, the workers were generally unsuccessful. Appeals officers consistently found that the risk of contracting SARS from such individuals did not meet the level of danger required to justify a work refusal,” Shaw said.
“In other words, if the employer is implementing appropriate personal protective equipment and appropriate safety measures, it would likely be that a work refusal would not be considered reasonable,” Shaw explained.
The job protection provided by the Ontario government is directly in relation to the COVID-19 pandemic.
“Employers still have the right to terminate individuals without cause,” Shaw said. In such cases, employers should review their decisions carefully, they could result in damages if the dismissed employees file claims.
Terminations with cause should be also fine with evidence.
The Ontario government has since mandated the closure of all non-essential workplaces beginning March 24 at 11:59 PM for at least two weeks, with the possibility of extension. Essential business that may remain open include groceries and medicines, the March 23 release stated.
As always, employers should consult relevant legislation and legal council when making any significant changes to policy.
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