While the World Health Organization has declared the Novel Coronavirus (2019-nCoV/Coronavirus/COVID-19) a global health emergency, the public health risk associated with COVID-19 in Canada remains low risk. With 27 confirmed cases of COVID-19 in Canada, 20 of which are in Ontario, our Employer clients are reaching out for guidance on how to respond to potential exposure to COVID-19 in the workplace. The following is intended to provide some preliminary guidance with the proviso that it is always best to consult with legal counsel for advice specific to your workplace and/or circumstances.
Information is Knowledge: Understanding the Symptoms and Risks
At the outset, what is fundamentally important is that all individuals in your workplace have an awareness of the symptoms and risks of COVID-19. Symptom and risk awareness will aid prevention. Information concerning the symptoms and risks associated with the Coronavirus have been published by both the Ontario Ministry of Health and the Public Health Agency of Canada.
Prevention is Key
Employees should receive information on how they can reduce the risk and spread of infection to others. Encourage employees to wash their hands prior to coming to work and frequently throughout their day with soap and water for at least 20 seconds; avoid touching their eyes, nose and mouth with unwashed hands, stay home if they are sick; when coughing or sneezing – cover their mouths and nose with their arm or a tissue to reduce the spread of germs; immediately dispose of used tissues into the garbage and follow with a hand washing. Consider providing easy access hand sanitizers throughout the workplace. Increase the frequency of office cleaning procedures including disinfecting equipment, workstations and surfaces.
Consider a mandatory reporting obligation for those employees who expect personal travel to jurisdictions considered high-risk or hotspots. Travel Health notices are regularly updated by the Public Health Agency of Canada. While Employer’s cannot prohibit personal travel to high risk areas, they can help employees make an informed decision by providing them with relevant information.
Employees who chose to travel to high risk areas may be requested not to report to the workplace for a period of self-isolation post travel. Of course, we recommend that you obtain legal advice prior to imposing any leave of absence in this regard and consider whether a work from home arrangement is possible. Inform employees about the availability of sick leave, personal days or some other form of paid leave of absence, if any.
Report and Respond
Require employees who are sick to stay home. This is no different that an employer’s response to employees who might present with symptoms of the flu or other contagious health concerns. Inform employees about relevant policies that provide for sick pay, access to short term disability benefits or other paid/unpaid leaves of absence. Consider individualized accommodation plans that may include an alternative work from home arrangement.
Where an employee is required to provide care to a sick family member inform them of their right to statutory protected leaves (sick leave and family responsibility leave) under the Employment Standards Act 2000.
Employees who have no available sick time or access to disability benefits may be offered the option to use vacation or lieu days, however, an Employer cannot insist that the employee do so.
Workplace Occupational Health and Safety
Employees who believe they are at risk of contracting Coronavirus in the workplace may exercise their right of work refusal as contemplated by the Occupational Health and Safety Act (OHSA). Employers must, in response, comply with their obligations under the OHSA including investigation and an attempt to find a satisfactory resolution failing which, the Employer must notify the Ministry of Labour. Managers and Supervisors must be informed on how to respond to work refusals.
Employers have a statutory obligation to provide a workplace that is free from discrimination or harassment. The Human Rights Code (HRC) provides a broad definition of disability which includes “any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness…” In 2003 during the SARS outbreak, the Ontario Human Rights Tribunal confirmed that SARS fell within the definition of disability deserving of protections afforded by the HRC. To date, the Tribunal as not declared Coronavirus as a disability, however, in light of the declaration of global “health” emergency and increase in confirmed cases within Ontario, we expect that the Tribunal will respond as it did in 2003.
Employers are required to respond to individuals with Coronavirus with an individualized accommodation plan as contemplated by the Human Rights Code.
The Workplace Safety and Insurance Act provides compensation to employees who suffer a personal injury or illness arising out of and in the course of their employment and 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 is engaged. If an employee is infected by the Coronavirus during the course of employment, it may be expected that the claim for insurance will be evaluated by the Workplace Safety and Insurance Board in a similar fashion to claims made during the 2003 SARS outbreak. The Board has not as yet provided a position statement or approach to the Coronavirus.
Privacy and Confidentiality
Employees have a right to confidentiality as it relates to their confidential health information and, for those federally regulated employers, employees have a statutory right of protection under the provisions of the Personal Information Protection and Electronic Documents Act. The right of privacy competes with the Employer’s obligation to take every precaution reasonable in the circumstances for the protection of a worker (OHSA s. 25(2)). A careful balance must be struck between the two competing interests and we recommend that you seek legal counsel while we await, direction, if any from the Privacy Commissioner and/or appropriate Health Ministries or Ministry of Labour.
Practical Steps and Direction
Communication is the key. Provide employees with information about Coronavirus symptoms and risks. Communicate proper prevention including cough and sneezing etiquette. Enhance workplace cleaning procedures. Consider hand washing signs. Work towards implementing human rights accommodation plans and alternative work arrangements where required. Inform managers and supervisors about how to deal with work refusals. Communicate information about company policies and procedures and available leaves under the Employment Standards Act 2000. Check with disability insurance providers to determine coverage and communicate available coverage, if any, to your employees. Update emergency contact information for employees. Handle confirmed instances of the Coronavirus with the utmost concern for confidentiality and compassion.
As we face these new challenges, employers are encouraged to seek the proper advice and direction from professional and legal advisors.
Leanne Standryk is a senior partner within the Lancaster Brooks & Welch LLP, Labour & Employment Department and she may be contacted at 905-641-1551.
We confirm with you that the content of this article is to provide general information and should not be considered legal advice. Employers are encouraged to contact a member of our labour and employment group with any questions.