Managing COVID-19 in the Workplace

Overview of the Situation...Source: Miller Thomson | Lawyers

The Novel Coronavirus (“COVID-19”) was classified by the World Health Organization as a pandemic on March 11, 2020. At this stage, over 100 countries worldwide have reported cases of COVID-19, including Canada. In Canada, the outbreak is being managed by federal, provincial and territorial emergency management and public health agencies. Government authorities have instituted a number of measures and issued a number of recommendations to limit the spread of COVID-19.

These include, but are not limited to, the following:

  • self-isolation for all persons returning from travel abroad for 14 days (Government of Canada, British Columbia and Prince Edward Island);
  • self-isolation for travellers returning from Hubei province (China) or Iran, and self-monitoring for travellers from all other destinations, for 14 days (Ontario);
  • self-isolation for provincial government employees returning from travel abroad (Nova Scotia);
  • self-isolation for provincial government employees and employees from both private and public sectors working in education, health services and daycares, returning from travel abroad (Quebec);
  •  self-isolation for children attending schools returning from travel abroad (New Brunswick);
  • 14-day restrictions on visiting long-term and personal care homes for all persons returning from travel abroad (Nova Scotia and Manitoba);
  • voluntary self-isolation for 14 days for anyone returning from abroad after March 12, 2020 (Quebec);
  • mandatory isolation for 14 days for all public service employees and health care, education and daycare workers, both private and public, who return from abroad on or after March 12, 2020;
  • the introduction of job-protected leave for employees in self-isolation (Alberta; Ontario is expected to introduce similar leaves shortly);
  • all public gatherings are to be postponed for 30 days (Saskatchewan);
  • all public gatherings of 100 or more attendees are suspended (New Brunswick);
  • indoor events with 250 or more attendees are prohibited (Quebec);
  • all events with 250 or more attendees are to be postponed or cancelled (Manitoba, British Columbia);
  • all events with 250 or more attendees are recommended to be cancelled (Ontario);
  • mandatory school closures (Ontario, Quebec, Alberta and Nova Scotia);
  • mandatory daycare closures (Quebec);
  • closing gathering places (bars, libraries, gymnasiums, swimming pools, cinemas, and ski resorts) (Quebec); and
  • suspension of certain activities of the courts and tribunals (Quebec and Ontario).

What You Need to Know


What measures can an employer adopt to reduce the risks associated with COVID-19?

Each jurisdiction in Canada has occupational health and safety legislation which imposes legal obligations on employers and employees. Employers must take reasonable precautions to protect the health and safety of their workers. In the case of COVID-19, we recommend employers consider the following measures. These recommended measures are based upon currently available information and should not replace public health authorities’ recommendations:

  •  identify an employee who will be responsible for all communication to staff on COVID-19;
  • regularly review information from local public health authorities, the provincial governments and the federal government. The links to relevant government sources are available at the end of this guide;
  •  conduct a risk assessment specific to the workplace;
  • develop a plan to reduce the risks associated with COVID-19. Where appropriate, this plan can include the following:
    • constantly reminding employees to follow the best practices put forward by their local public health authority;
    • encouraging employees to stay at home and seek medical treatment if they are not feeling well;
    • dentifying when an employee should be sent home and when they may return to the employer’s premises in accordance with the recommendations of public health authorities;
    •  increasing cleaning and sanitation of surfaces in the workplace as recommended by local public health authorities;
    • converting in-person meetings to conference calls where possible;
    • where it is necessary to host in-person meeting, instituting a visitor policy to identify current risk factors;
    • cancelling all non-essential business travel;
    • conducting risk assessments on an ongoing basis and updating the plan and communications to employees accordingly; and
    • in the event of an outbreak, instituting temporary office closures.
Employers should plan for business continuity in the event that people are unable to attend the employer’s premises to work, or operations are significantly reduced. Employers should consider measures such as remote work arrangements, scheduling changes, and temporary lay-offs. These options will be discussed in greater detail below.

Can an employee refuse to work?


With limited exception in some sectors, occupational health and safety laws permit employees to refuse work if they reasonably believe the work is unsafe. When an employer receives a work refusal, it should immediately investigate the employee’s concerns in accordance with the requirements of the applicable occupational health and safety legislation. If hazards are identified, the employer is required to respond with appropriate measures.

Employees should not be disciplined for legitimate work refusals. Further, the employer may be required to continue to pay them.

Employers should take an individualized approach when dealing with work refusals.


What about employees who may be more vulnerable to COVID-19?


If an employee identifies that they are at an increased risk due to a compromised immune system and must, therefore, self-isolate, the employer may ask for information to substantiate the request. If it is substantiated, the employer should consider a remote work arrangement if possible. If a remote work arrangement is not possible, employees may qualify for workers’ compensation in certain jurisdictions. Measures such as preventive leaves could also apply pursuant to a medical recommendation (for example, for pregnant women). These should be assessed on a case-by-case basis.


What happens if an employee reports that they have tested positive for COVID-19?


The employer should seek the guidance of local health authorities to assess risk, potential disclosure obligations and develop a plan. In some circumstances, it may be necessary to notify other employees that they may have been in close contact with COVID-19.


In what circumstances can an employer tell an employee not to attend work due to COVID-19 concerns?

An employee who should self-isolate in accordance with the recommendations of public health authorities can be instructed not to report to work.
An employer may require an employee who is exhibiting symptoms associated with COVID-19 to leave the workplace. The employee should only be permitted to return to work following the period recommended for self-isolation or until they are cleared to return to work by a health practitioner.


Do we have to pay employees who are self-isolating?


If employees who are self-isolating are working remotely, they should be paid.
If working remotely is not an option, the employee may be placed on a leave of absence.

There is generally no requirement for an employer to maintain wages in these cases, absent an express contractual or statutory obligation.

If the employee is self-isolating because they are sick, they may be able to claim benefits under a sick leave policy, subject to the terms of the plan.

Some provinces have announced the introduction of self-isolation leaves.  Employees who self-isolate but are not sick may not qualify for these leaves. If self-isolation leaves are not available in the employer’s jurisdiction, the employer should consider whether they can extend sick benefits to their employees who are self-isolating but not sick. To permit employees to access EI sickness benefits, the employer should promptly issue a Record of Employment. The Government of Canada has waived the one-week waiting period and, as we understand it, no medical note is required to access these benefits under the circumstances.

In circumstances where an employee does not qualify for a paid or job-protected leave, employers may wish to consider a temporary layoff so that the employee is able to apply for Employment Insurance benefits.

Employees should be permitted and required to return to work in accordance with the recommendations of the applicable public health authorities or the employee’s health practitioner.


What options do we have if we have to temporarily close or reduce operations?

Employers may wish to consider the following options:

  • Temporary layoffs.

Employers must comply with the requirements in the minimum employment standards legislation in their jurisdiction. For unionized employees, employers should also ensure that they are following the requirements of the collective agreement. For non-unionized employees, employers should consider the employment contract. There is some risk that a temporary layoff of a non-unionized employee may amount to a constructive dismissal absent an express or implied contractual term.

  • Work-Sharing Program.

As an alternative to layoffs, employers should consider applying to the Government of Canada’s Work-Sharing Program. The program allows for employment insurance benefits as income support to employees with a temporarily reduced workload. For further details about this program, please refer to our communique of February 27, 2020.


Conclusion

Employers should continue to monitor and respond to the COVID-19 situation as it evolves. We encourage you to contact us if you require any assistance.
We will also provide regular and ongoing updates, including a live Webinar on Friday, March 20,


COVID-19 has had a huge impact on employers in Canada. They are faced with a broad range of challenges, including health and safety, accommodations, workplace reductions and privacy issues. This bulletin aims to provide Canadian employers with up-to-date answers and information. Please note that the information in this bulletin is based on currently available information. We will provide regular updates as more information becomes available, and encourage you to contact us with any specific questions.


Disclaimer

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

© Miller Thomson LLP 2020. All rights reserved.

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