The weather is getting colder, the holidays are approaching and
flu season is soon to be upon us. That means sick
employees forced to miss work. Besides ensuring that productivity
does not suffer, employers also need to be cognizant of their legal
obligations towards their employees during flu season. Here
are a few important points to keep in mind:
Obligation to Maintain a Safe Workplace
- Under the Occupational Health and Safety Act
("OHSA"), an employer has a general duty "to take
every precaution reasonable in the circumstances for the protection
of a worker" (s. 25(2)(h)). This duty not only applies
to ensuring workplace machinery is safe, but also to communicable
diseases like the flu. Employers should adopt reasonable
policies/practices to prevent the spread of an illness like the flu
(e.g. facilitating flu shots, providing hand washing
dispensers, approving time-off and shift modifications where
Do not tolerate the sick (and present)
worker - Employers do not have to tolerate an
employee who attends work with the flu. As part of the
obligation to maintain a safe workplace, and as a "reasonable
precaution" (see above), employers should consider sending the
employee home and requiring a medical certificate before
he/she may return to work. While employers are often rightly
concerned about managing absenteeism and returning employees
to work, there are times when employers need to encourage the
Employees may refuse to work – Most
employees have the right under OHSA to refuse unsafe work.
The unsafe work could relate to communicable diseases present
in the workplace. In the event of a work refusal, the
procedures set out in s. 43 of OHSA must be followed. These
steps include the employee reporting the work refusal to
management, an investigation by management (while the employee
is kept in a safe location and paid) and, if no resolution,
referring the work refusal to the Ministry of Labour
("MOL") for inspection and resolution.
Employees cannot be retaliated against for engaging in a work
refusal in good faith (even where the alleged unsafe workplace
is based on the employee's subjective assessment).
Job Protected Leaves - Under the
Employment Standards Act, 2000 ("ESA") employees
in workplaces with more than 50 employees are entitled to 10
personal emergency leave days (without pay). Having the
flu can be grounds for taking this leave . Medical evidence
can be required by the employer. In addition, it is important to
remember that the Human Rights Code applies to
"disabilities" and requires employers to accommodate
employees up to the point of undue hardship. Providing a
leave of absence (generally without pay) to someone with the
flu may be a required form of accommodation.
The MOL is very cognizant of an employer's obligations and
an employee's rights during flu season. The MOL recently
updated a policy statement titled, "Flu and Your
Workplace". The policy statement stresses that, in
relation to the flu, employees have the right to work in a
"safe and healthy environment" and have the "right
to know" about potential hazards in the workplace, the
"right to participate" in identifying and resolving
workplace health and safety concerns, and "the right to
refuse" unsafe work. The statement advises workers to
talk to their supervisor or Joint Health and Safety Committee if a
co-worker has the flu or if the worker is concerned that the
workplace is unsafe due to a "communicable
disease". The statement also notes that an employee
may be entitled to sick leave (under an employer plan) or personal
emergency leave under the ESA.
Keeping the above points in mind will assist in ensuring
employers comply with their legal obligations this flu season
(including staying onside with the MOL). Perhaps more
importantly, the above points will assist in keeping employees
healthy and productive.
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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