FTR Now

Coronavirus Update: What Employers Need to Know Right Now

FTR Now

Coronavirus Update: What Employers Need to Know Right Now

Date: January 27, 2020

Daily news coverage has put the Novel Coronavirus (2019-nCoV or Coronavirus) in the spotlight. Just this morning, Ontario health officials announced that another “presumptive” case of the new Coronavirus has been discovered in Toronto, which, if confirmed, would make it the second instance of the illness in Canada. Both cases are still currently presumptive and there have not yet been any confirmed cases of the virus in Canada. **

While the implications for Canadians are still unknown, it is important for employers to be prepared to respond quickly as matters continue to develop. Now is the time to map out an understanding of your own plan to deal with this emerging issue. This FTR Now is designed to assist you with assessing the range of legal issues that may arise in this situation.

Sick Leave Benefits

Employees unable to work because of illness caused by the Coronavirus may be eligible to claim benefits under an applicable sick leave policy. These individuals should be treated like any other sick employee, and the eligibility and procedural requirements of the policy should be applied in the same manner to these claims.

The more difficult question arises around employees who will potentially be subject to 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 the policy does not provide for such coverage, employers should consider extending benefits on a gratuitous basis rather than having employees apply for employment insurance (if employment insurance benefits are made available). Employers may also consider letting employees use their vacation time to cover absences or make up the time at a later date. Further, where employees are under quarantine or are still contagious but able to work, they could be permitted to work from home, where operationally feasible.

If a full pandemic were to unfortunately unfold, employers should keep in mind that any policies dealing with employee absenteeism (including a sick leave policy) need to be sufficiently flexible to reflect the realities of the pandemic and should not be punitive in any way. For example, requiring a medical note when employees are sick with flu-like symptoms during a pandemic may be onerous when healthcare providers and medical facilities are extremely busy and overburdened.

Employment Insurance Benefits

In the absence of company paid sick benefit coverage or where benefits are exhausted, employees may be entitled to sickness benefits under the Employment Insurance Act (Act). Under the Act, employees who face a reduction in “normal weekly earnings” of at least 40% because of illness, injury or quarantine are eligible for EI sickness benefits, provided they have accumulated sufficient insurable hours.

During the 2003 outbreak of SARS, the federal government implemented special loss of income relief for certain affected employees. It is not known at this time whether the federal government will provide such relief in response to a potential Coronavirus pandemic.

Statutory Leaves of Absence

The Employment Standards Act, 2000 (ESA) contains a number of leave provisions that could apply in a pandemic situation.

Once an employee has worked for an employer for at least two consecutive weeks, the ESA provides for three days of unpaid leave each calendar year due to personal illness, injury or medical emergency.

Employees may also be entitled to use family responsibility leave days for absences relating to a pandemic situation. Once an employee has worked for an employer for at least two consecutive weeks, the employee has the right to take up to three days of unpaid leave each calendar year because of an illness, injury, medical emergency or urgent matter relating to their:

  • spouse (includes both married and unmarried couples, of the same or opposite genders)
  • parent, step-parent, child, step-child, foster child, grandparent, step-grandparent, grandchild or step-grandchild of the employee or the employee’s spouse
  • spouse of the employee’s child
  • brother or sister of the employee, or
  • relative of the employee who is dependent on the employee for care or assistance.

If an employment contract provides for something similar to sick leave or family responsibility leave (for example, paid “sick days” or “family responsibility days”), and if the employee takes one of these leaves under their employment contract, the employee is considered to have also taken sick leave and/or family responsibility leave under the ESA.

In the case of a pandemic, employees may be able to claim entitlement to a “declared emergency” leave. This leave gives employees the right to a leave of absence where an employee is unable to perform the duties of their own position because of a declared emergency.

In order to qualify for entitlement under these provisions of the ESA, there are certain criteria that must be met. Either the Lieutenant Governor in Council or the Premier must declare an emergency under the Emergency Management and Civil Protection Act (EMCPA). Further, employees must be unable to work because:

  • they are subject to an order under the EMCPA
  • they are subject to an order under the Health Protection and Promotion Act (HPPA), or
  • they are needed to provide care or assistance to a specified individual.

With respect to the first point, the government may make orders under the EMCPA to: regulate or prohibit travel to, from or within any specified area; evacuate individuals and animals, or remove personal property from a specified area; and close any place, whether public or private, including any business, office, school, hospital or other establishment.

The second point relates to section 22 of the HPPA, which gives medical officers of health the power to order individuals to take, or refrain from taking, any action specified in such orders. These orders can be quite broad and can include: orders to be quarantined; orders to submit to an examination by a physician; or orders to conduct oneself in such a manner so as not to expose another person to infection.

The third point applies to the same list of employees covered under the family responsibility leave.

A declared emergency leave generally ends the day the declared emergency is terminated or disallowed. The employee’s right to the leave will usually end at the same time. This is subject to a few exceptions, including where an employee is exercising the right to declared emergency leave to care for a specified individual.

Similar leave protections exist under the Canada Labour Code. It also provides that an employer cannot dismiss, suspend, lay off, demote or discipline an employee with at least three continuous months of employment because of an absence due to illness or injury, where the absence does not exceed 17 weeks and where the employee provides a medical certificate within 15 days of request upon return.

Work Refusals

Under the Occupational Health and Safety Act (OHSA), most employees have the right to refuse work if a condition of the workplace “is likely to endanger” their health or safety. Employees encountering the Coronavirus in the workplace (or who fear that they may encounter it) may seek to exercise their right to refuse work in this regard.

The OHSA outlines a specific work refusal procedure that must be followed. Employers cannot threaten to discipline an employee exercising a work refusal. When faced with a work refusal, the employer should immediately investigate in the presence of a health and safety representative or joint health and safety committee member, consider this right to refuse work, and, failing resolution with the employee, notify a Ministry of Labour Inspector. Failure to comply with the OHSA may result in fines.

It is important to note that, under the OHSA, certain employees are exempted from the right to refuse work. These include employees whose work is inherently dangerous or circumstances where a work refusal would endanger another’s life, health or safety. Some examples include police officers, firefighters, correctional officers, paramedics and hospital workers. The application of this exception is complex, and each potential work refusal situation would need to be carefully assessed.

WSIB Claims

The Workplace Safety and Insurance Act, 1997 provides compensation for “personal injury or illness arising out of and in the course of employment” and provides compensation where “a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged.” Therefore, workers infected with the Coronavirus in the course of employment may be entitled to services and benefits. These types of claims were made by healthcare workers during the 2003 outbreak of SARS.

Human Rights Issues

The Ontario Human Rights Code (Code) provides that everyone has a right to equal treatment in employment. The definition of disability in section 10 of the Code includes any degree of physical disability or infirmity. The Code also requires that accommodation be provided to a disabled employee.

The Human Rights Tribunal of Ontario has generally held that a cold or the ordinary flu is not considered to be a disability for the purposes of the Code. However, if a pandemic occurs, being infected with the Coronavirus may amount to a disability under the Code. Employers must therefore keep in mind human rights considerations in their responses and contingency plans. For example, human rights considerations may arise where an employer requires an employee who recently visited high risk areas to remain off work.

The Canadian Human Rights Act has similar provisions to the Code.

Privacy Considerations

Employers should also consider management of medical information when planning for a potential pandemic. This includes the medical information an employer will collect from an employee and how that information will be used, disclosed and kept secure. Clear direction to employees outlining why certain medical information is being collected will help employees understand why it is necessary and reasonable for the employer to collect, use and disclose their medical information in response to the situation.

Employers also need to consider what information they are entitled to require from employees and how they can use and disclose this information. Employers must consider what information they need in order to protect the health and safety of their workforce, and how they can achieve this protection in as minimally intrusive a manner as possible.

In ordinary times, employers are advised against requiring an employee to disclose a specific diagnosis. However, there is no absolute rule against obtaining a diagnosis from an employee. Indeed, some decision-makers have recognized that a diagnosis may be necessary information for an employer to have in order to fulfill its health and safety obligations to the entire workforce. During a pandemic, when employers have reason to believe that employees in a contagious state are in the workplace, it may be necessary to ask such questions in order to assess this point.

Although this type of screening may arguably be a necessary and appropriate part of pandemic management, it is not without risk. Those employers subject to private sector privacy legislation should take note that the federal, British Columbia and Alberta privacy commissioners have released publications that seem to preclude such action. Further, employers operating in unionized environments could expose themselves to potential grievances. It is therefore important that any such action be done in collaboration with an employer’s unions, where possible.

In some cases, an employer may seek confirmation of immunization (where available), particularly when the place of employment is a healthcare setting. Similarly, in the context of some outbreaks, an employer may wish to know whether an employee has travelled to an area that is experiencing a high incidence of the disease in question. Different kinds of information may need to be collected, used and disclosed at various points throughout the course of a pandemic.

The necessity of the collection of this information does not mean that the employer can or should disclose this information in an unrestricted fashion. Rather, employers should use and disclose the health information on a “need to know” basis only, or as required by public health officials. Employers must carefully examine what information needs to be used or disclosed in the circumstances to fulfill their obligations to all of their employees, as well as to those to whom the employer provides services.

Operational Concerns

The SARS outbreak in 2003 resulted in many employers having to make workforce adjustments. Employers should have contingencies in place for dealing with the impact of a health emergency on the continued operation of their business.

At a minimum, this may involve consideration of the core aspects of the business which must be carried on, identifying aspects of the operation that could be temporarily closed, identifying internal and external dependencies and identifying plans for employees. Any contingency planning will be unique to the business.

How is the Government Preparing for the Coronavirus?

The Ontario government has indicated that it is working with its partners in the healthcare system to implement a robust plan to monitor for, detect and, if needed, isolate any cases of the Coronavirus.

The Ministry of Health has reported that it is taking several steps to ensure the health and safety of Ontarians. This includes:

  • monitoring hospitals for potential cases of the virus in individuals with travel history to Wuhan, China
  • adding Novel Coronavirus as a designated disease reportable under Ontario’s public health legislation, enabling local public health units to quickly and effectively take all necessary measures to investigate, complete lab tests and do case and contact management to prevent and control further spread of the infection
  • ongoing planning with federal and provincial/territorial partners and readiness to coordinate with other provinces/territories if the virus is identified in Ontario
  • promoting awareness and providing guidance to health care providers
  • closely monitoring the situation and coordinating with Public Health Ontario and Public Health Agency of Canada
  • meeting with hospitals, paramedics and local public health units near Pearson International Airport to provide further information on the federal border screening measures.

If a pandemic occurs, there is legislation that the federal (Emergencies Act, Quarantine Act) and provincial governments (EMCPA, HPPA) can utilize to implement widespread strategies for the promotion of public good, health and safety. Any actions taken under these laws may impact your workplace.

Conclusion

In responding to these issues, it is important for employers to attempt to balance a responsible approach to legitimate employee concerns while taking care not to act unreasonably, or based on misinformation and unreasonable fears.

At this point, there have been no specific directives or orders issued by health authorities that dictate a required response by employers and employees. We will continue to provide updates when and if these directives are released.

To further assist you, please consult our companion piece, “Coronavirus: Questions and Answers for Employers” which sets out some of the emerging questions and answers, along with some key resources.

** Editor’s Note: As of January 28, 2020, a number of cases have now been confirmed. Note that the Ontario government is tracking the status of Ontario cases on its Coronavirus website, which will provide updated information as it becomes available.

If you require further information, please contact Sarah Eves at 416.864.7254, Nadine Zacks at 416.864.7484, Amanda Cohen at 416.864.7316, or your regular Hicks Morley lawyer.


The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©