Whether your business is facing a weather-related closure, a pandemic or some other kind of natural disaster, the likelihood is that the Human Resources department will be expected to navigate any employment-related issues. As a result, good risk management planning includes an understanding of some of the legislation which applies and the issues which arise in the event of natural disasters in the workplace.
Believe it or not, there are at least a dozen pieces of legislation which may have an impact on the response of an Ontario company in the event of a natural disaster. Some of them are outlined below.
The Emergency Management and Civil Protection Act (Ontario) defines what a public emergency is and grants powers to the Premier, Cabinet, and Ontario judges to declare emergencies and make orders for the good of the public. Similarly, the Health Protection and Promotion Act (Ontario) gives power to public officials to make orders and direct the public while attempting to control public health emergencies. This includes the imposition of quarantines. Likewise, the federal Quarantine Act permits quarantines to be imposed on people entering Canada where there are reasonable grounds to presume the transmission of a communicable disease.
The Employment Standards Act, 2000 (Ontario) introduced the concept several years ago of emergency leave for declared emergencies such as natural disasters (as opposed to the personal emergency leave provisions which apply in the event of illness or another emergency for the employee or an immediate family member).
The Emergency Management Act is federal legislation which outlines the powers and responsibilities of the Minister of Public Safety and Emergency Preparedness, and which even allows for the coordination of certain emergency plans with U.S. authorities.
The Occupational Health and Safety Act (Ontario) prohibits employers from disciplining or dismissing employees who refuse to attend work in certain circumstances, including those who fear being exposed to a communicable disease. That said, the right to refuse to work does not apply to certain defined individuals such as law enforcement officers, firefighters, hospital workers, ambulance drivers, and laundry and food service workers, as well as employees at correctional institutions, laboratories, and group homes. Likewise, there is a similar right to refuse to work for certain federally regulated employers under the Canada Labour Code. For those employees who are able to refuse to work under the provisions of the OHSA, there is sometimes an ability to claim benefits under the Workplace Safety and Insurance Act, 1997 (Ontario) ("WSIA"). In the event of a public health emergency such as the SARS crisis several years ago, there is the risk that employer insurance premiums under the WSIA may increase significantly.
While a bit more of a stretch, it is possible for legislation like the Human Rights Code (Ontario) to come into play for diseases such as SARS and bird flu epidemics, which seem to bear the connotation of having originated in Asia. In addition, discrimination on the basis of disability needs to be kept in mind in the event of an epidemic which leads to the illness of employees.
The Ontario Ministry of Labour has issued a Q&A on how to deal with natural disasters in the workplace. The Q&A covers issues such as whether or not employees can be forced to take vacation days in the event of a natural disaster which prohibits them from working, and whether employees must be paid if they are told not to come to work during a disaster.
In addition to understanding the legal obligations, some of the following items may be worth considering when developing an employer natural disaster plan:
- Development of a workplace evacuation plan, including ensuring appropriate on-site safety equipment including but not limited to flashlights, blankets, air masks, emergency communications equipment, a first aid kit, and possibly extra water and food;
- Development of an emergency communications plan (often a communications pyramid is most effective in these situations). Keep in mind that power outages may necessitate non-electronic communications;
- Development of an emergency transportation plan;
- Development of an emergency decision-making committee;
- Consideration of the use of work from home plans during emergencies. The use of a company intranet or a secure portal can assist with employee communications during this period;
- Development of a means of communication with customers during emergencies; and
- Examination of employer insurance policies to determine whether short-term disability coverage takes into account absences due to communicable diseases or quarantine.
Although most employers will never face a natural disaster scenario, the risk of potential harm to employees and the business alike necessitates the consideration of an emergency response plan for the workplace. With an understanding of some of the legal requirements imposed on employers, together with the sort of risk management planning which all good workplaces should undertake from time to time, employers can be fully equipped to deal with the unexpected in times of crisis.
Q & A
Can an Employee Take Time Off for Emergencies Declared By a Government Body?
Only Alberta, Nova Scotia, and Ontario specifically provide for time off for a government-declared emergency.
In Alberta, people who are complying with an isolation order or certificate requiring medical examination/ treatment issued under the Public Health Act during a public health emergency cannot be terminated from their employment just because of their compliance. During a pandemic, this protection can also be extended to people who are ill with influenza as well as persons caring for sick family members.
In Nova Scotia, an employee is entitled to an unpaid leave of absence from work if he or she will not be performing his or her employment duties as a result of a public emergency declared under Nova Scotia's Emergency Management Act, Canada's Emergencies Act, an order or directive of a medical officer of health pursuant to the Health Protection Act, or by government regulation. Employees may take emergency leave in order to attend to their own needs or those of a family member where the employee is the only person reasonably able under the circumstances to assist the family member.
In Ontario, where an emergency has been declared under the Emergency Management and Civil Protection Act, an employee is entitled to an unpaid leave of absence if he or she will not be performing his or her employment duties because the employee is the subject of an order under the Emergency Management and Civil Protection Act or the Health Protection and Promotion Act, or because the employee is needed to provide assistance to a family member.
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