As the crisis in west Africa grows and North America has
experienced its first death from Ebola, Canadian employers are
starting to feel less immune from this threat and to question what
actions they can - and should - take to ensure the health and
safety of their employees.
While there have been no cases of Ebola in Canada, for employers
that have employees with families in west Africa who have recently
visited or who are currently visiting, the issue may be real and
immediate. If such employers provide care or support to the ill,
elderly or children, health and safety concerns should be
paramount. For employers whose employees interact with the public,
there may be a need to educate and assuage concerns.
Ebola causes haemorrhagic fever and is often fatal because of
significant internal bleeding and organ failure. Fatality estimates
range from 50 to 90%. It is a deadly, frightening disease. Equally
important to note though is that Ebola does not spread easily from
person-to-person. It is spread through direct
contact with infected bodily fluids. According to a Fact Sheet
prepared by Public Health Ontario, symptoms of Ebola begin within
two to 21 days after exposure with a sudden onset of fever, usually
with headache, malaise and myalgia and gastrointestinal symptoms
are common. (Find the Fact Sheet
Consistent with their obligations under the Occupational
Health and Safety Act, employers who have reason to believe an
employee could have been exposed to Ebola – for example, if
the employee is returning from west Africa – should conduct a
risk assessment. Public Health Ontario has prepared such an
assessment based on three main factors: (1) travel history, (2)
activities in affected areas that increase risk, and (3) presence
or absence of symptoms and signs compatible with Ebola. (Find the
Risk Assessment Evaluation here.) It is important to keep on top of latest updates
from the World Health Organization ("WHO"), however, as
the risk assessment is outdated in its identification of risk
areas. (Nigeria, for example, was declared free of Ebola by the WHO
on October 20, 2014.)
Employers must have an objective basis for conducting a risk
assessment of employees to avoid allegations of discrimination
contrary to the Human Rights Code. Those allegations could
be made on any of the five race-based grounds (race, ancestry,
place of origin, colour, ethnic origin) or disability (which
includes perception of disability). Where an employer has a
reasonable basis to be concerned about exposure, the employer
should place the employee on a leave of absence immediately to
eliminate the threat to co-workers and the public. That leave of
absence should be paid. If infection is confirmed, the employee
would then access the employer's sick benefit or short-term
disability benefit plan. If the employee maintains he or she is not
infected, having completed a 21 day leave of absence, the employer
should require medical certification of fitness to return to duty.
Collective agreement obligations to unionized employees should be
reviewed and respected.
Employers also should keep in mind employees' entitlement to
leaves to provide care or support to designated family members
under the Employment Standards Act, 2000. Eight weeks of
family medical leave is available to Ontario employees if such
family member is certified to have a serious medical condition with
a significant risk of death occurring within 26 weeks. Infection
with the Ebola virus would meet this requirement. Further, as of
October 29, 2014, Ontario employees also may access two new leaves:
(1) eight weeks of family caregiver leave to provide care or
support to designated family members certified to have a serious
medical condition (without the same requirement of there being a
significant risk of death occurring within 26 weeks), and (2) up to
37 weeks of critically-ill child care leave to provide care of
support to a child, step-child, foster child or child under legal
guardianship who is under 18 years of age who has been certified to
be critically ill. These leaves can be taken consecutively; they
are not cumulative. Although these leaves of absence are unpaid,
Employment Insurance benefits will provide income support, less a
two week waiting period.
Also important to note is an employer's obligation to
maintain employees' privacy and to keep medical information and
identities confidential. Breaches of privacy rights can result in
tort damages to Ontario employees.
Balancing rights and obligations in a crisis is never easy.
Employers who proactively assess risk and develop protocols now to
deal with the Ebola crisis will be far better off than those who
ignore the potential implications for their business and are put in
the position of reacting in crisis mode later.
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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