The World Health Organization (the “WHO”) has declared the outbreak of novel coronavirus disease (“COVID-19”) a global pandemic. As of March 11, 2020, there have been over 122,000 confirmed cases globally, and over 4, 350 deaths, the vast majority of which have occurred in Hubei, China. In Canada, the public health risk remains low according to the Public Health Agency of Canada (“PHAC”). As of March 11, 2020, over 100 cases of COVID-19 have been confirmed in Canada, 41 of which are in Ontario. One COVID-19-related death has been reported from British Columbia. It is still very difficult to predict the full effects of COVID-19. As the situation continues to evolve, business owners and employers must face the unique and difficult challenge of COVID-19 and prepare their workplaces.
Transmission and symptoms
Coronaviruses are a family of viruses, 7 of which are known to cause respiratory disease in humans, from the common cold to the severe illnesses we have heard about in the news: Severe Acute Respiratory Syndrome (SARS), Middle East Respiratory Syndrome (MERS), and now, COVID-19. Coronaviruses are transmitted from person to person through respiratory droplets (coughing and sneezing) and close, prolonged personal contact, such as touching or shaking hands.
Symptoms of infection vary, with more severe illness more likely to present in immunocompromised individuals, children, and the elderly. Symptoms of COVID-19 have ranged from mild flu-like symptoms, to severe illness and death. WHO reports that the following symptoms of COVID-19 infection may appear 2 to 14 days after exposure: fever, cough, sore throat, or shortness of breath. A recent study from John Hopkins University found that symptoms typically appear 5.1 days after exposure.
If you develop a fever and symptoms of respiratory illness, and have been in close contact with someone known to have COVID-19, or to have travelled recently to an area with ongoing spread, the PHAC advises that you should isolate yourself within your home as quickly as possible, and call your health care provider or public health authority.
What are an employer’s legal obligations?
Occupational Health and Safety
Employers have a duty under the Ontario Occupational Health and Safety Act (“OHSA”) to provide a safe workplace. This includes taking reasonable and responsible measures to protect employees from a disease. Employers should stay abreast of COVID-19 developments, and adhere to recommendations made by Ontario and Canadian public health authorities to maintain a healthy and safe workplace.
Under the OHSA, employees are entitled to refuse work that they believe is likely to endanger their health or safety. To be entitled to refuse work, an employee must have reasonable cause to believe that performing the work would create an undue hazard to the health and safety of themselves or another person. Where an employee reports a refusal to work, the employer must investigate the reported hazard (in the presence of a health and safety representative or joint health and safety committee member) and follow work refusal protocols. If there are “reasonable grounds” to conclude a danger exists, the employee may continue to refuse the work and the Ministry of Labour must be notified. The refusal must be reasonable: anxiety or fear around COVID-19 is not, on its own, sufficient to refuse work.
Failure to comply with the OHSA may result in corporate fines. While there may be a small risk of disingenuous refusals to perform work, the prudent course of action for employers is to respect the refusal pending investigation of the issue and explore alternate arrangements by which work can be performed in the meantime (such as allowing the employee to work from home).
Human Rights
Employers are reminded of their obligations under the Ontario Human Rights Code. All employees have the right to equal treatment in employment. Discrimination in employment on the basis of ethnicity, race, ancestry, place of origin, and disability is prohibited. Employers should refrain from treating employees that have (or are perceived to have) COVID-19 differently, apart from taking recommended health and safety measures to reduce or prevent the spread of the virus. Under the Code, employers are also required to take steps to accommodate disabled employees. Someone who is infected with COVID-19 may be considered disabled within the meaning of the Code.
Furthermore, it is common knowledge that COVID-19 originated in China, and the country is experiencing the bulk of global confirmed cases. The Ontario Human Rights Commission released a statement in January urging the public to refrain from stigmatizing, discriminatory, or harassing behaviour against individuals of East Asian descent, following reports of such conduct due to the COVID-19 outbreak.
Employers are reminded to refrain from unlawful stereotyping, and to discourage any discrimination and harassment in the workplace on the ground of ethnicity, race, ancestry, place of origin, ancestry, disability or otherwise.
Employment Standards
The Ontario Employment Standards Act, 2000 provides for a number of unpaid leaves that may be available to employees that are ill, have a family member that is ill, experience a death in the family, or if an emergency is declared. Each of these leaves provides for a separate entitlement. These include:
- Sick Leave
- 3 unpaid days due to personal illness, injury or medical emergency for employees with at least 2 consecutive weeks of employment,
- Bereavement Leave
- 2 unpaid days due to the death of a prescribed family member for employees with at least 2 consecutive weeks of employment,
- Family Caregiver Leave
- 8 unpaid weeks to provide care or support to a prescribed family member with a serious medical condition,
- Family Medical Leave
- 28 unpaid weeks to provide care or support to a prescribed family member with a serious medical condition with a significant risk of death occurring within a period of 26 weeks,
- Family Responsibility Leave
- 3 unpaid days due to the illness, injury or medical emergency of a prescribed family member, or an urgent matter concerning a prescribed family member, for employees with at least 2 consecutive weeks of employment,
- Child Death Leave
- 104 unpaid weeks for the death of an employee’s child, for employees with at least 6 consecutive months of employment,
- Critical Illness Leave
- Critically Ill Minor Child: 37 unpaid weeks to provide care or support to a critically ill minor child, for employees with at least 6 consecutive months of continuous employment,
- Critically Ill Adult: 17 unpaid weeks to provide care or support to a critically ill adult family member, for employees with at least 6 consecutive months of continuous employment,
- Emergency Leave, Declared Emergencies
- An employee is entitled to a leave of absence without pay if the employee will not be performing the duties of his or her position because of a declared emergency.
Such unpaid leaves of absence are, of course, the minimum entitlements all employees are entitled to under Ontario’s legislation. Your workplace may have a paid sick leave policy that provides for greater benefits to employees. In order to prevent the spread of COVID-19 and contain the disease, employees should know that they will not be penalized if they are ill or have reasonable grounds to suspect they are ill and do not attend work.
Workplace Safety and Insurance Benefits
Workplaces that are subject to WSIB may find that employees who contract COVID-19 in the course of their employment, such as during work-related travel or from workplace exposure, may be entitled to workers’ compensation benefits.
Privacy Concerns
Employers must be aware of the privacy implications when medical information is collected from an employee. While generally employers are not entitled to know an employee’s medical diagnosis, during an emergency situation such as a COVID-19 outbreak, it may be necessary for employers to ask sick employees about a diagnosis in order to fulfill their health and safety obligations.
Employers should clearly communicate why certain medical information is being requested, how and in what circumstances it will be disclosed, and how the information will be otherwise kept confidential.
What should employers do if an employee arrives to work sick?
Employers should encourage ill employees to stay home. If it is suspected that an employee has contracted COVID-19 (e.g. symptoms and travel to or contact with someone who travelled to an area where the virus is spreading), employers should:
- Request that the employee quarantine themselves at home and limit their contact with others for 14 days, and of course, contact their health care provider;
- Where possible, request that employees work from home, and treat their leave of absence as a paid leave; and
- Review related policies, benefit plans, and contracts to determine the employee’s entitlements during quarantine (e.g. sick leave benefits; short term disability),
- Advise those that might have been working with or in close contact with the infected employee.
If it is not possible for an employee to work from home and the employer is not in a position to continue to pay the employee’s full wages and benefits while they are quarantined, employers should consider whether other options are available to provide the employee some compensation while under quarantine, such as the availability of accumulated or future vacation days, or making up the time at a later date.
Alternatively, employees may qualify for government-paid Employment Insurance sickness benefits under the Employment Insurance Act. On March 11, 2020, the federal government announced that it will be waiving the one-week waiting period for EI sickness benefits for individuals who have contracted COVID-19, or have been directed to self-quarantine. This initiative comes as a result of the establishment of the federal government’s one billion dollar COVID-19 Response Fund, which will also increase funding to the PHAC, provincial and territorial healthcare, and other public health counter measures. It is possible the federal government may also implement special loss of income relief provisions for certain affected employees, as was the case during the 2003 outbreak of SARS.
Depending on the workplace, extended absences of employees due to illness may be temporarily mitigated by:
- Implementing flexible work hours, overtime, or remote work arrangements to provide adequate coverage;
- Cross-training employees to provide essential job duties;
- Utilizing temporary help agencies; and
- Considering whether employees can be temporarily laid-off (where an established past practice or a contractual term permits such layoffs).
What preventative steps can employers take?
- Ensure workplaces are clean and hygienic:
- Disinfect surfaces and commonly touched objects (e.g. phones, keyboards, computer mice, door handles, elevator buttons),
- Promote frequent and thorough hand-washing, and/or the use of hand sanitizers, by employees, contractors, customers and clients,
- Promote good respiratory hygiene in the workplace (coughing and sneezing spread diseases!), and
- Communicate with employees, contractors, customers and clients that they should stay home if experiencing even mild symptoms where COVID-19 is spreading in the community.
- Ensure the workplace has adequate supplies to address an outbreak, and/or general health and safety, such as tissues, soap and water, hand sanitizer, and cleaning supplies.
- If the workplace does not have sick leave, leaves of absence, or communicable disease policies, implement them as necessary; if the workplace has such policies in place, review them and ensure they adequately address workplace protocol in the case of the spread of a communicable disease.
- Advise employees and contractors to consult national travel advice before going on business trips; abide by Government of Canada travel advisories; and consider cancelling or restricting travel to certain countries or regions.
- Encourage employees to advise management of any travel outside of the country; and consider whether it is possible to cancel employee vacations if required to fulfill staffing needs due to absences.
- Develop disaster preparedness and business continuity plans.
- Communicate, communicate, communicate:
- Advise employees of relevant policies and procedures,
- Communicate how the employer is addressing COVID-19, and the expectations of employees, and
- Advise employees of the symptoms of COVID-19, and encourage employees to notify management if they are sick, or if they have a family member who is sick and may have contracted COVID-19.
Employers should exercise care in prohibiting an employee from attending at the workplace (i.e. requiring a mandatory self-quarantine period) unless there is a measurable risk of COVID-19. Imposing such an unpaid leave of absence (in the absence of a public health directive requiring certain individuals to undergo quarantine) could potentially give rise to a human rights claim or an allegation of constructive dismissal. Employers who are unable to provide telework arrangements and who do not offer any paid leaves of absence may be faced with an unenviable challenge. They must balance the potentially high costs of offering a paid short-term leave (on a without prejudice basis) against the risks of legal claims or worse, the spread of the virus in the workplace.
In light of the increasing outbreaks of COVID-19, the Ontario government announced on March 2, 2020 that it is implementing an enhanced response structure to ensure “health system readiness”. As the situation develops daily, employers and business owners are encouraged to regularly review updated information about COVID-19 and its spread from governmental and other reputable sources. The following sources are recommended: