As the warm weather becomes once again, so last season,
employers and supervisors across Ontario are beginning to turn up
the thermostats in their buildings. The unfortunate corollary of
the decrease of temperature is the increase of illness; especially
colds and worse influenza. Influenza, or the flu, as it is more
typically known, is a serious disease that affects millions of
people working in Canada each year – and what affects
Canadian workers affects employers.
Since an outbreak of influenza in a workplace affects work flow,
causes a higher rate of absenteeism and accordingly, a loss in
productivity, common sense suggests that all employers would want
to provide a safe and healthy work environment. But, because common
sense can be anything but common, employers have an imposed
statutory obligation to protect workers under the Occupational
Health and Safety Act (the "OHSA").
The fundamental duty under section 25(2)(h) of the OHSA
is the requirement that employers take every "reasonable
precaution" to protect the health and safety of the workers.
Therefore, a broad interpretation of the section suggests that
employers would be well advised to put in place measures that would
be helpful in protecting workers from infectious diseases,
including the flu virus.
Section 25(2)(a) of the OHSA further imposes
obligations on the employer. This section of the legislation states
that an employer shall provide workers with "information,
instruction and supervision" to protect their health or
safety. As a result, employers might rightfully ask themselves if
it is sufficient to inform staff that flu vaccinations are offered
at nearby clinics or if there exists an obligation to offer a flu
vaccination at the workplace. These concerns will hopefully be
abated by the suggested measures that we propose below.
Section 43(3) of the OHSA grants workers the right to
refuse work if they believe their safety is at risk. During a flu
or other communicable disease outbreak, workers may rightly
perceive their workplace environment as unsafe. However, to
establish a genuine work refusal, the perception that a workplace
is unsafe is insufficient, rather there must be a rational basis
for the refusal. An example of a rational basis in this context
would be direct contact with an infected person.
We suggest that, as an employer or supervisor taking
"reasonable precautions" and additionally providing
"information, instruction and supervision" to protect
workers, you consider encouraging basic prevention techniques.
Prevention techniques include reminding staff that hand washing,
the use of hand sanitizers, the sleeve or arm coughing (as opposed
to hand over mouth) can decrease the spread of cold and flu
germs/viruses throughout the workplace. Additionally, if visitors
enter the workplace, informational and instructional notices or
posters geared directly to informing them of the suggested
prevention techniques could also fall within the reasonable
precautions taken to protect workers. Alternatives to face-to-face
or in-person meetings are advisable. This includes increasing
communication through emailing and/or teleconferencing on an
as-needed basis. With regards to work refusals, we suggest that
employers and supervisors reacquaint themselves with the proper
process for dealing with work refusals, which can be found in the
collective agreement and/or policies developed by the
Documenting the ebbs and flows of absences of a workforce you
employ or supervise can also assist in protecting workers. However,
concerns may arise with regards to worker privacy. Health
information is confidential, and must therefore remain as such.
Only the minimum amount of information necessary to properly
communicate the message that influenza, or other communicable
diseases are on the rise can be shared, as the privacy of the
Under OHSA, workers have a right to know about
potential hazards, including the exposure risk to influenza. They
also have a right to know how to protect themselves and the right
to be involved in identifying and resolving health and safety
concerns at their workplace. Therefore, it would be prudent for all
parties to assist in developing appropriate workplace policies to
address the likely impact of a flu pandemic.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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