While the media frenzy regarding the H1N1 influenza
virus (also known as the "swine flu") has somewhat
subsided over the past few months, recent reports by the World
Health Organization have indicated that, in some regions, instances
of swine flu are increasing. Accordingly, it is crucial that
employers be aware of their legal obligations as well as the
practical implications that a pandemic influenza outbreak may have
for their operations and workforce.
Statutory And Legal Considerations
In the event of a pandemic influenza outbreak, employers would
need to consider their obligations under a number of different
employment-related statues, including:
Occupational Health and Safety
Legislation: Provincial and federal
occupational health and safety legislation requires employers to
take steps to protect employee health and safety, and to ensure
that their workplaces are safe. These broad statutory obligations
suggest that employers should develop and implement initiatives
designed to address health and safety risks associated with
pandemic influenza outbreaks. These steps may include implementing
a hazard assessment and control program, bolstering workplace
hygiene practices and creating a pandemic planning
Employment Standards Legislation:
Provincial and federal employment standards legislation entitles
employees to take a variety of different statutory leaves in the
event that they or their families become ill as part of a pandemic
influenza outbreak. Depending on the jurisdiction, employees may be
entitled to take statutorily protected sick leave, compassionate
care leave, family responsibility leave, personal emergency leave
or leave for government-declared emergencies. In some instances,
provincial governments may enact specific legislation designed to
grant additional leave entitlements over and above those provided
for in employment standards legislation.
Human Rights Legislation: Provincial
and federal human rights legislation protects individuals from
discrimination based on various grounds, including disability. Case
law in Canada is inconsistent as to whether a short term illness
constitutes a disability within the meaning of human rights
legislation. Accordingly, employers may wish to seek guidance from
legal counsel before responding to an employee's accommodation
request relating to a pandemic influenza illness.
Legislation: Employers should be aware
that, in some instances, employees suffering from a pandemic
influenza illness may be entitled to compensation through workers
compensation legislation, particularly where the illness was
contracted as a result of the employee performing his or her
Creating A Pandemic Response Plan
In light of these statutory and legal considerations, employers
would be well advised to develop and implement a pandemic response
plan. In doing so, employers should consider the following
Designate a pandemic co-ordination team that is responsible for
pandemic preparedness and planning;
Establish procedures for employees to follow if they experience
Identify alternative work arrangements for ill employees,
including the establishment of telecommuting alternatives and
Identify core positions and resources that will be required to
maintain the employer's business during a pandemic;
Create a business continuity plan that may involve the
designation of "clean worksites" or backup worksites in
remote locations. Employers may also want to create an emergency
communication plan to enable employees, customers and suppliers to
maintain contact during a pandemic influenza outbreak;
Co-ordinate a health and safety hazard assessment and control
program that addresses the unique hazards and risks associated with
pandemic influenza; and
Bolster workplace hygiene practices by educating employees on
the H1N1 virus, and teaching appropriate hand washing techniques
and proper coughing and sneezing etiquette. Employers may want to
consider providing hand sanitizers and anti-bacterial wipes to
employees and visitors to their workplace.
James Hassell is a partner and Chair of the
Osler Employment and Labour Department. Greg
London is an associate in the Employment and Labour
Department in the firm's Toronto office.
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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