Canada: Focus On Employment, Labour And Pensions - May 2009

Last Updated: May 30 2009

Article by Employment, Labour and Pensions Groups

Preparing for a Swine Flu Pandemic

Swine Influenza A (H1N1) ("Swine Flu") is raising international concern, particularly with the outbreak of Severe Acute Respiratory Syndrome ("SARS") fresh in our memories. On April 29, 2009, the World Health Organization ("WHO") raised the pandemic alert from Phase 4 to 5 of 6 as the pandemic has spread to at least two countries in one WHO region. The declaration of Phase 5 is a strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of the planned mitigation measures is short.

As of May 4, 2009, there are 140 laboratory-confirmed cases of Swine Flu reported to the Public Health Agency of Canada, including cases in Prince Edward Island, Nova Scotia, New Brunswick, Quebec, Ontario, Manitoba, Alberta and British Columbia.

What are the Symptoms of Swine Flu?

Swine flu is a highly contagious respiratory infection that can be communicated person-to-person in the same way as seasonal flu—mainly through coughing or sneezing of people infected with the influenza virus. People may become infected by touching something with flu viruses on it and then touching their mouth or nose.

Symptoms of swine flu are similar to seasonal influenza (flu), including headache, chills and cough followed by fever, loss of appetite, muscle aches and fatigue, runny nose, sneezing, watery eyes and throat irritation. Nausea, vomiting and diarrhoea may occur in adults as well as in children. In more severe cases, or in people with chronic conditions, complications such as pneumonia may develop.

What You Need to Know or Do

There are a number of practical and legal issues raised by the Swine Flu outbreak. The legal considerations include employer obligations under employment standards, occupational health and safety, workers compensation, and privacy laws.

We have set out a list of considerations and suggestions below to assist employers in proactively addressing these issues.

1. Designate a Responsible Individual or Create a Crisis Management Team

  • Under occupational health and safety legislation, employers and supervisors have an obligation to ensure the safety of the workplace.
  • This may be accomplished by designating one or more individuals who will be responsible for maintaining awareness, alerting others in the organization, and implementing stages of the organization's plan to deal with the outbreak. Larger organizations will want to create a Crisis Management Team and assign well-defined roles and responsibilities to each member.
  • The individual or team should determine what sources of information will be relied on as authoritative and establish how the individual or team will decide when various responsive measures should be taken.

2. Keep Employees Informed about Swine Flu

  • In order to prevent the spread of Swine Flu, employees need information about what it is, what its symptoms are, and who should not attend work.
  • In a unionized environment, it would be prudent for an employer to contact the union to explain how the employees are being kept up to date and to solicit support of the union in upholding the new rules and policies applicable to the Swine Flu outbreak.
  • In the event of quarantine, an emergency, or a temporary relocation, employers must also be able to contact their employees. Employers should therefore update all employee contact lists and consider:
    • Outlining a telephone communication chain. Such a chain would designate point people to contact groups of employees who in turn contact other groups of employees;
    • Installing a telephone information line for recorded information about the organization in an emergency; and/or

    • Allowing all employees remote access to their work e-mail or securing an employee information website for posting emergency instructions for employees.

3. Adopt Additional Workplace Personal Hygiene Practices

  • Personal hygiene plays a very significant role in combating Swine Flu. Employers should recommend the following practices to their employees:
    • Washing their hands repeatedly throughout the day with soap and water for at least 15 seconds and using alcohol-based sanitizers;
    • Avoiding touching their mouths, noses or eyes with their hands;

    • When coughing or sneezing, doing so into a tissue or a sleeve; and
    • Sanitizing any surfaces, such as desks, phones and keyboards daily as a precaution.
  • Employers should also consider providing hand sanitizer in public areas and antimicrobial wipes for cleaning work surfaces.
  • The U.S. Centers for Disease Control and Prevention ("CDC") has suggested that individuals avoid close contact with people who might be ill and being in crowded settings. Employers should recommend that their employees adopt social distancing practices in the workplace. This means keeping at least three feet apart from other employees, especially in meeting rooms, elevators, shared workspaces and lunchrooms.
  • Face masks have not yet been recommended for workplace use. The following recommendations with respect to the use of face masks and respirators have been provided to date by the CDC:
    • Face masks should be considered for use by individuals who enter crowded settings, both to protect their nose and mouth from other people's coughs and to reduce the wearers' likelihood of coughing on others; the time spent in crowded settings should be as short as possible.
    • Respirators such as the N95 need only be considered for use by individuals for whom close contact with an infectious person is unavoidable. This can include selected individuals who must care for a sick person (e.g., family member with a respiratory infection) at home.

4. Activate a Self-Screening Procedure

  • Employers should tell their employees that if they experience any signs or symptoms listed above, they are required to stay at home and immediately contact their supervisor or the responsible individual or team.
  • Although not all Canadian jurisdictions have private sector privacy laws that protect employees, employers should protect the privacy of employee health information revealed to them.

5. Consider Adopting Temporary Travel Policy

  • As of April 30, 2009, the Public Health Agency of Canada recommends on their website that travelers from Canada postpone elective or non-essential travel to Mexico until further notice.
  • Under the temporary travel policy, employers should temporarily require all employees who travel to affected areas to report such travel to the individual responsible or the team.
  • Employees should be required to report any travel to affected areas since the beginning of April, or upcoming travel to any of these affected areas, whether for business or for personal reasons. Currently, laboratory confirmed cases have been reported, in Mexico and in the following North American locations:
    • British Columbia, Alberta, Ontario, Nova Scotia in Canada; and Arizona, California, Indiana, Kansas, Massachusetts, Michigan, Nevada, New York, Ohio, South Carolina and Texas in the U.S.

6. Manage Absenteeism

  • Employees who are experiencing flu-like symptoms may attempt to attend work out of fear of being penalized or because they cannot afford to lose wages.
  • Employers should be supportive but require employees to stay home from work when they are experiencing symptoms.
  • Employers should review the applicable employment or labour standards legislation and obligations with respect to emergency, family, or other legislated leaves to take care of sick family members and ensure compliance with such leaves.
    • Across the country, employees are eligible for family medical leave which permits employees to take up to eight weeks off to provide care or support for certain individuals if the individual has a serious medical condition with a significant risk of death occurring within a period of 26 weeks.
    • In Ontario, if an employer has 50 or more employees, employees are entitled to up to ten days of personal emergency leave and may be entitled to family medical leave (if an emergency declared under the Emergency Management and Civil Protection Act, an employee may also be entitled to additional unpaid leave).

7. Consider the Public and Private Benefits Available to Affected Employees

  • Employers should make a list of all benefits and supports already in place for employees. These benefits may include short-term disability, long-term disability, employment insurance, or workers compensation (if Swine Flu is contracted in the workplace). At present, there has not been any suggestion that the two week waiting period for Employment Insurance will be waived as was the case with SARS.
  • Although the employer's general attendance or leave of absence policies may adequately deal with the situation, the employer may need to adapt the policies on a temporary basis during the Swine Flu outbreak. Employers may consider implementing the following practices:
    • Treating an employee's need to care for infected dependents as an employee illness;
    • Permitting the employee to use sick leave credits or short-term disability benefits where available;
    • Allowing the employee to use vacation or lieu days in order to receive paid time off;
    • Where possible, facilitating work from home by providing employees with access to the required technology; and/or
    • Providing opportunities to make up lost time so no income is lost.

8. Deal with Work Refusals

  • Occupational health and safety legislation gives an employee the right to refuse work that he or she believes is unsafe if certain procedures are followed. The employee may be entitled to pay during the work refusal.
  • Employers must investigate any work refusals in accordance with the applicable occupational health and safety legislation and employees may be entitled to pay during the investigation.
  • Employers cannot discipline employees for refusing work unless the employee has refused to work in bad faith.
  • Some employees may call in work from home refusing to work. If an employee refuses to work out of an unfounded fear that he or she will contract Swine Flu (e.g., no one else in the workplace has Swine Flu), the employee will not likely be entitled for pay for the period of work refusal.

9. Implement Security Precautions

  • Organizations will need to assess whether their business can operate in the event of a pandemic, consider whether their facility is secure, and assess how it will cope with reducing staffing or the need to shut down without much, if any, warning.
  • Employers should implement a sign-in list to monitor visitors to the workplace. In the event that Swine Flu develops in the workplace, an employer should have a means of contacting the visitors to notify them of the outbreak.

Other Resources:

This information bulletin is based on information currently available from the Ontario Ministry of Health and Long Term Care, Health Canada, the World Health Organization, and the Centers for Disease Control and Prevention regarding Swine Flu. Please note that information regarding Swine Flu is subject to regular updates. You may wish to visit the websites listed below to help you obtain the best and most current information.

Detailed information on Swine Flu is available on the following websites:

www.health.gov.on.ca

www.publichealth.gc.ca

www.who.com

www.cdc.gov/swineflu/

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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