With the spread of the novel 2019 coronavirus, employers may face significant disruptions in the workplace.

As of January 30, 2020, the World Health Organization declared the coronavirus outbreak a public health emergency of international concern. Officials from the Public Health Agency of Canada have stated that the risk of a major outbreak in Canada remains low, but has encouraged extra precautionary measures. Two cases in Ontario, and one in British Columbia have been confirmed.

Employers should be aware of the legal framework within which they can prepare, manage, and address developments caused by the spread of this virus.

Key takeaways

Employers should:

• Appoint a coordinator who will be responsible for tracking latest developments, reviewing guidance from government, and acting as a point of contact for concerned employees.
• Develop and communicate health and safety procedures to minimize the risk of infection in the workplace.
• Be mindful of potential exposure to liability arising out of privacy, human rights, and employment law concerns when developing screening and other preventative measures; this includes taking precautions to prevent harassment in the workplace.

Ensure that that employees are aware of their entitlements if they or a family member fall ill.

Maintaining a safe workplace

Employers must ensure that they have a contingency plan to respond to developments, even with a greatly reduced workforce. As a first step, employers should appoint one or more coordinators who will be responsible for tracking the latest developments of the coronavirus’s spread. These coordinators should also serve as a point person for employees who need to navigate workplace safety, sick leave, and other concerns.

Developing and communicating health and safety protocols will be key to preventing the spread of infection in the workplace. Employers should consult government and health authorities for guidance. These efforts may include expanding work-from-home policies, and making alternative arrangements to avoid any work-related travel to areas cautioned by the government.

Employers will want to minimize risks by screening their workforce for risks of infection. Employers may also wish to ask workers who have travelled or who display symptoms to stay away from the workplace. In these situations, privacy and human rights considerations may expose employers to liability. Employers must ensure that screening procedures, requests to stay away from the workplace, and other practices do not run afoul of applicable laws.

In the same vein, employers should be aware of the potential for workplace harassment in connection with the coronavirus.

Employees in Ontario have the right to refuse work where workplace conditions are “likely to endanger” their health and safety. Employers should ensure that they following the work refusal procedures in the Occupational Health and Safety Act (“OHSA”) to minimize exposure to liability.

Understanding employees’ entitlements

Ensuring that employees are aware of their entitlements to leave and other benefits will help to avoid disruption in the workplace, and minimize exposure to liability.

In Ontario, employees are entitled to leaves of absence for their own sickness, or to care for a family member (as defined in the Employment Standards Act (“ESA”)). Federally-regulated employees are entitled to similar leaves under the Canada Labour Code. If the coronavirus situation worsens and the government declares an emergency, employees will be entitled to “declared emergency leave”.

As a best practice, employers may also wish to extend company sick leave, vacation, or other policies to help employees who may be subject to quarantine orders or who are otherwise unable to work. This may include work-from-home arrangements where feasible. In doing so, employers must be mindful of exposure to human rights or other liabilities.

MORE DETAIL

Resources for company “coronavirus coordinators”: developing a health and safety procedure to prevent infection

To best ensure a safe and healthy workplace, employers should consider appointing a coordinator dedicated to communicating relevant updates on the spread and status of the coronavirus. Only reliable public health authorities should be referenced. Public Health Ontario, for example, has a dedicated page (updated every weekday) that reports the status of the outbreak, preventative measures, and the development of treatment. Other examples include the Public Health Agency of Canada, which reports on the status of the virus’s spread in Canada.

Employers may also wish to develop and circulate health and safety procedures to their employees. These should be in accordance with the latest guidance from health authorities, and include proper flu-prevention measures that are commonly used.

Finally, employers should be aware of and communicate the availability and accessibility of a vaccine if and when one has been developed.

Implementing necessary travel restrictions

Employers should continue to monitor the Canadian government’s travel advisories and consider delaying or canceling any work-related travel to and from areas that pose a greater threat of infection. As of January 30, 2020, the government has advised against all travel to the Hubei Province, and generally all non-essential travel to China. In these circumstances, employers may consider arranging alternative methods of communication with business contacts in affected areas, such as through teleconferencing.

It is also appropriate for employers to caution employees against personal non-essential travel to high-risk areas identified by health authorities.

Screening procedures: best practices

In the event of a greater outbreak, privacy laws should continue to have effect. Should an employee need time off due to exhibiting symptoms or potential exposure, employers are not normally entitled to request a diagnosis. However, it would be reasonable to request a prognosis to best determine leave requirements and to maintain business operations.

An employer may wish to ask employees about their family’s health status and travel history. Given that the current risk of a mass outbreak is still relatively low, employers should be cautious in these types of screening practices.
In the event the government declares a public health emergency, employers may be required to reevaluate their screening practices as more rigorous procedures may become justifiable.

In any event, employers should always avoid targeting screening questions to employees based solely on their ethnicity or disability, as these are protected grounds in human rights legislation. Employers should also be aware of the potential human rights considerations while questioning employees. Similar considerations apply to the storage of screening information. These determinations are to be made on a case-by-case basis.

Best practices for asking workers to stay home

In order to avoid a potential viral spread in the workplace, employers may wish to require employees to work from home. Employers will be able to do this if they have objective knowledge, or a reasonably held belief, that an employee had been exposed to the coronavirus (for example, is exhibiting symptoms or recently travelled to an area cautioned by health authorities). In these circumstances, there may exist a bona fide occupational requirement to protect the health and safety of others in the workplace, thereby justifying the requirement to stay home.

An alternative approach would be to educate employees on the risks of coming to work if they believe they have been exposed. Consistent reminders and updates on symptom identification and preventative measures can help facilitate this process. Additionally, work-from-home policies should be considered where possible.
Should an employee stay home – either voluntarily or by requirement – the determination of wages should be done in accordance with the normal terms of employment. However, this must be determined on a case-by-case basis.

Managing employees’ work refusals under the OHSA

Under the OHSA – subject to certain employment exceptions – employees may exercise a right to refuse work if a workplace condition is “likely to endanger” their health and safety. In the event that an employee refuses work, employers must take seriously the concern and initiate an investigation into the matter in accordance with the Act. There are a number of exceptions to the right of work refusals which must be assessed on a case-by-case basis, especially due to the sensitive and unique nature of communicable diseases.

Preventing harassment in the workplace

Under the OHSA, employers are required to implement comprehensive policies, programs, and investigative procedures to address workplace harassment. Employers should be aware that the circumstances surrounding the coronavirus present increased risks of workplace harassment. This may include disparaging comments about a person’s ethnic origin, cyberbullying, or disclosure of private information.

Employers should be prepared to identify workplace harassment and enforce existing policies and procedures.

Statutory leaves of absence and employer-provided leaves/benefits

Under the ESA, employees who have worked at least two weeks are entitled to three days’ unpaid leave each calendar year because of personal illness, injury, or medical emergency. A separate, similar leave is available for employees tending to the illness, injury, medical emergency, or urgent matter of family members. The ESA defines the scope of “family members” broadly to include an employee’s spouse; the employee’s or the employee’s spouse’s parents, children, grand-parents, and grand-children;[1] spouse of the employee’s child; the employee’s brother or sister; and a relative dependent on the employee for care or assistance.

Ensuring compliance with human rights, privacy, and employment laws

Whatever measures employers decide to adopt must comply with human rights, privacy, and employment legislation. Measures must be adopted for bona fide occupational requirements, and must respect the employees’ privacy and employment entitlements. Coordinators should track how, when, why, and for whom measures are adopted. This will help to minimize exposure to liability.

• Many thanks to Jan Nato & Shira Sasson for their assistance with this article.