Canada: Responding To The H1N1 Influenza Virus

INTRODUCTION

A serious concern has arisen over the last few months regarding the rapid spread of the H1N1 influenza virus, also known as swine flu ("H1N1"), and the possibility of significant social and economic disruption. Among these concerns are the effects on the school system, including the possibility that H1N1 outbreaks and staff shortages could lead to school closures.

As of August 30, 2009, the number of cases in the Americas, which have been officially reported to the World Health Organization ("WHO") is 116,046, with 2,234 deaths. However, given that countries are no longer required to test and report individual cases, the number of cases reported actually understates the real number of cases.1 At this time, WHO still considers the overall severity of the influenza pandemic to be moderate. However, the severity of the pandemic can change over time and differ by location. WHO also remains concerned about the current patterns of serious cases and deaths that are occurring primarily among young persons.

On August 19, 2009, the Public Health Agency of Canada issued guidelines for schools regarding the management and prevention of influenza-like illness, including H1N1 (the "Guidelines").2 At this time, widespread school closure are not recommended by the Public Health Agency. However, decisions about individual closures, lie at the discretion of the appropriate local authorities, having regarding to community-based concerns, the impact of school absenteeism and/or staff shortages, and the potential negative consequences resulting from the school closures.3

The Ontario Government has also developed an Ontario Health Plan for an Influenza Pandemic. A Brief of the Plan was published in July 2009. Its goals are to minimize serious illness and overall deaths through appropriate management of Ontario's health care system; and minimize societal disruption in Ontario. In Ontario, there have been 4,035 lab-confirmed cases of H1N1 as of August 8, 2009. On August 5, 2009, 48 lab-confirmed cases were in hospital, of whom 38 had underlying medical conditions. 283 other lab-confirmed cases have been hospitalized and have since been discharged. 21 deaths have been reported among the cases to date.4

From a legal perspective, both in the education and employment law contexts, a number of questions arise: What is a school board's standard of care? What are the rights and obligations of employers and employees under various employment-related statutes? What risk management strategies can be taken to reduce exposure? What steps can be taken to reduce or minimize legal liability and protect the interests of our schools? These issues are discussed below.

Please note that the information contained in this Alert may, in some cases, be affected or altered by the terms of any applicable collective agreement or employment contract. Where there is a conflict or uncertainty, we encourage you to seek legal advice.

STATUTORY RIGHTS AND OBLIGATIONS

Education Act

There are numerous duties imposed on school boards and school principals by statute and relevant regulations. Under section 265 of the Education Act, the principal of a school has a duty to maintain proper order and discipline. A principal also has a duty to give assiduous attention to the health and comfort of pupils under his or her care. In addition, Regulation 298 under the Act provides that a principal is in charge of the organization and management of the school, as well as the instruction and discipline of pupils in the school. Furthermore, a principal has a duty to provide for the supervision of pupils during the period of time during each school day when the school buildings and playgrounds are open to pupils. A principal is also required to provide for the supervision of and the conducting of any school activity authorized by the board.

Employment Standards Act, 2000

Emergency Leave

For employers who regularly employ 50 or more employees, the emergency leave provisions of the Employment Standards Act, 2000 ("ESA") will apply when an employee cannot attend work due to H1N1-related circumstances.

Emergency leave is unpaid, job-protected leave of up to ten days each calendar year. Emergency leave may be taken in the case of personal illness, injury or medical emergency of the employee. This leave may also be taken for illness, injury, medical emergency, death or other urgent matters concerning certain relatives of the employee. For example, if an employee's child's school is closed due to the H1N1 situation, this would be considered a medical emergency or urgent matter concerning the employee's child, and the employee will be entitled to take emergency leave. Employers are prohibited from penalizing an employee because he or she takes emergency leave.

Emergency Leave For Declared Emergencies

In response to the SARS crisis, under the Emergency Statute Law Amendment Act, 2006, the Emergency Management and Civil Protection Act was amended to include provisions regarding the declaration of an emergency in Ontario. Specifically, section 7.0.1 now provides that the Lieutenant Governor in Council or the Premier may declare that an emergency exists throughout Ontario, or in any part of Ontario. An order declaring that an emergency exists may be made where:

  1. there is an emergency that requires immediate action to prevent, reduce or mitigate a danger or major proportions that could result in serious harm to persons or substantial damage to property; or
  2. one of the following circumstances exists:
  1. the resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay;
  2. the resources referred to in subparagraph (i) may be insufficiently effective to address the emergency; or
  3. it is not possible, without the risk of serious delay, to ascertain whether the resources referred to in subparagraph (i) can be relied upon.

The ESA was also amended to include provisions regarding emergency leave for declared emergencies. In the event that an emergency is declared, under section 50.1 of the ESA, an employee would be entitled to a leave of absence without pay, if the employee will not be performing the duties of his or her position because of the emergency declared, and where the order declaring the emergency applies to the employee.

The employee is entitled to take a leave of absence until the day the emergency is terminated or disallowed. Further, as with all protected leaves under the ESA, during the leave, the employee will be entitled to continue to participate in any benefit plan.

Hours Of Work And Overtime

Under the ESA, an employee cannot be required to work more than eight hours in a day or 48 hours in a week, and overtime is payable after 44 hours of work in a week. An employer who has been adversely affected by the H1N1 situation, can require employees to work more than the above hours of work, without the employee's consent, if:

  1. the employee works only so far as is necessary to avoid serious interference with the ordinary working of the employer's establishment or operations; and
  2. the employee is required to work for one of the following reasons:
  1. to deal with an emergency;
  2. something unforeseen occurs that could interrupt the continued delivery of essential public services (such as those in hospitals), regardless of who delivers these services;
  3. something unforeseen occurs that could interrupt continuous processes or seasonal operations; or
  4. urgent repair work to the employer's plant or equipment is needed.

Having said that, employers should be aware that a significant alteration in hours of work may constitute, or at the very least, contribute to a finding of constructive dismissal. Employees who are accustomed to working normal business hours may not be required to accept positions where they would be required to work longer hours, and/or work evenings or weekends.

Layoff

In the unionized context, the applicable collective agreement may restrict the ability of a school/school board to layoff workers, and/or contain specific procedures for implementing layoffs. In the event of a school closure, some teachers' associations may take the position that teachers should continue to receive their full salary and benefits pursuant to the collective agreement. Accordingly, it is prudent that school officials and school board understand the labour relations implications before any decisions are made regarding layoffs of unionized workers.

Subject to the relevant collective agreement, the employer may lay off some or all of its employees pursuant to the ESA. Employees may be laid off for a temporary period of time without triggering any obligation to provide termination or severance pay under the ESA. However, if the employee is laid off for longer than the temporary period specified in the legislation, his or her employment will be deemed to be terminated, thereby triggering the termination and severance pay provisions of the ESA.

It should also be noted that, while the ESA allows for unpaid temporary layoffs, at common law, constructive dismissal issues may arise when a non-union employer institutes a temporary layoff. An employer's decision to temporarily layoff an employee could well be viewed by the employee as a fundamental change in the employment relationship. Unless an express provision in an employment contract provides for the possibility of a temporary layoff, or employer-initiated breaks in service are customary in an industry or a particular company, there is a risk that an employee may claim that he/she had been constructively dismissed. That being the case, an employer should exercise caution when deciding to layoff employees. In the event that an employer decides to layoff employees, the employer should also provide employees with a return to work date, in order to minimize the risks of constructive dismissal claims.

Workplace Safety And Insurance Act, 1997

Section 13(1) of the Workplace Safety and Insurance Act, 1997 provides that employees are entitled to compensation for "personal injury or illness arising out of and in the course of employment". In addition, section 15(1) of the Act provides compensation where "a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged".

Workers with symptoms of H1N1, who were infected in the course of their employment, may be entitled to the usual benefits and services available under the Workplace Safety and Insurance Act, 1997. However, as with all claims under the Act, a claimant's entitlement will be decided on a case-by-case basis.

It should also be noted that the Workplace Safety and Insurance Act, 1997 was also amended under the Emergency Statute Law Amendment Act, 2006. Where an employee assists in connection with an emergency declared by either the Lieutenant Governor in Council or the Premier under section 7.0.1 of the Emergency Management and Civil Protection Act, for the purposes of the Workplace Safety and Insurance Act, 1997, the Crown will be deemed to be the employer of the employee.

Occupational Health And Safety Act

Under the Occupational Health and Safety Act, both employers and employees are responsible for ensuring that the workplace is safe. Supervisors are also required to take every precaution reasonable in the circumstances for the protection of a worker and must also advise a worker of the existence of any potential or actual danger to the health or safety of the worker of which the supervisor is aware.

Employees who believe that the circumstances at work are unsafe are encouraged to discuss their concerns with the employer or the joint health and safety committee, if there is one. Generally, a satisfactory solution can be found by working collaboratively. If a solution cannot be found, and the employee continues to fear for his or her safety, the employee may initiate the work refusal process under the Occupational Health and Safety Act.

Human Rights Code

The Ontario Human Rights Code (the "Code") prohibits discrimination on the basis of disability. Diseases and other medical conditions such as H1N1 fall within the definition of "disability". Accordingly, different treatment of persons who have or are perceived to have H1N1, for reasons unrelated to health and safety precautions prescribed by medical or public health officials, is prohibited under the Code.

In most cases, employers will also have a duty to accommodate employees with H1N1 or who have been exposed to H1N1. Suitable accommodation will vary depending on the circumstances, but could include allowing the employee to take time off work, and/or allowing the employee to work from home, if possible.

In the present circumstances, in the event that a school board employee or student is infected with H1N1, the Code sets out protections regarding an obligation to provide reasonable accommodation. Accommodation must be provided to the point of undue hardship and must show respect for the dignity of the individual.

Employment Insurance Act And Regulations

During the SARS outbreak in 2003, the Employment Insurance Regulations was amended to respond to the needs of people affected with SARS. The amended Regulations applied to any SARS-related claims submitted where:

  1. a period of quarantine had been imposed or recommended on the claimant by a public health official, or
  2. the claimant was asked by an employer, medical doctor, nurse or other person in authority to quarantine himself/herself.

The amended Regulations also contained two significant changes.

  • Normally, there is a two-week waiting period for sickness benefits. This waiting period was removed in SARS-related cases.
  • Normally, there is a requirement that claimants for sickness benefits produce a medical certificate issued by a doctor or other medical professional. However, individuals who were sent home by their employer or otherwise quarantined due to possible exposure to SARS were not always able to produce a medical certificate. Accordingly, the requirement to produce a medical certificate was removed in SARS-related quarantine cases.

It remains to be seen whether similar provisions will be enacted to deal with the H1N1. It is worth noting that on April 29, 2009, the House of Commons gave approval in principle to a Bloc Quebecois bill that would eliminate the waiting period for employment insurance benefits. On September 14, 2009, the bill went through its second reading at the House. If passed, it would mean that workers would be eligible for benefits immediately. To become law, the bill must pass another vote at its third reading and then be approved by the Senate. Similar legislation has been introduced in the past, but has always failed to pass.

Privacy Issues

Employees who have contracted H1N1, or been exposed to H1N1, may have legitimate concerns about whether this information is shared with co-workers. School officials may also have concerns regarding whether information regarding students should be shared with staff and other students. The release of personal information raises complex legal issues. The Municipal Freedom of Information and Protection of Privacy Act also applies to public schools, and raises additional rights and obligations regarding privacy. Accordingly, delicate balancing is required between the employee or student's right to privacy with respect to medical information, and a school's interest in maintaining a safe work and learning environment. Before releasing any information about an individual's health, school officials should carefully consider all of these factors.

COMMON LAW LIABILITY

Canadian courts have held that the standard of care owed by educators to students is that of a reasonably careful or prudent parent in the circumstances. In other words, the law requires that an educator's actions conform to what a careful parent would do. This includes the duty to protect students from reasonably foreseeable risks of injury.

A serious threat of liability for employers arising from a public health emergency, such as an influenza pandemic, is through possible claims of negligence. There are a range of possible negligence claims that can be brought against an employer. They can be initiated by a school board staff member or student, or by a third party who has been harmed. The victim may allege that the school board has failed to discharge certain duties. This includes a failure to warn of a reasonably foreseeable risk, a failure to maintain a safe workplace, negligent hiring of a person or negligent supervision of a person.

A review of the case law indicates that the measure of an employer's liability in negligence rests on its awareness of events in its workplace and whether the employer has responded reasonably based on that knowledge. The concept of the "foreseeability" of an injury is key to the determination of whether an employer had a legal responsibility to take action to prevent an incident, and if so, whether that action was adequate to discharge its duty toward the victim. In considering foreseeability, it is not only what an employer knew that is important, but also what it ought to have known that will be considered in hindsight by the courts. In the present circumstances, a school board must be able to demonstrate that, under the given circumstances, it had a reasonable awareness of its work or school environment, and had correspondingly taken due diligence and reasonable care to reduce the risk of an illness or injury.

RISK MANAGEMENT: PROTECTION AND PREVENTION

Risk management and emergency preparedness involve planning, organizing and controlling activities that contain an element of risk to the individual. At this time, the most important factors in controlling the spread of H1N1 in schools are:

  • Early identification of ill students, staff and children exhibiting symptoms of influenza-like illness;
  • Exclusion from the setting of anyone ill with symptoms of influenza-like illness; and
  • Practising cough/sneezing etiquette and frequent hand washing.5

Having regard to the above, in order to meet the standard of care required in a pandemic, school boards and educators should take the following actions to minimize the spread of H1N1:

  • if an employee/student is exhibiting symptoms, he or she should be denied access to the school/workplace, sent home for quarantine, and advised to seek medical treatment;
  • if an employee/student is asymptomatic but has been in direct contact with someone who is symptomatic, he or she should also be denied access to the school/workplace, sent home for quarantine, and advised to seek medical advice;
  • staff and students should be encouraged to wash their hands frequently;
  • it may be prudent to provide supplies such as disinfectant wipes to clean work surfaces or counters periodically, though there does not appear to be hard evidence that such measures are effective against H1N1; and
  • employers should keep themselves apprised of all recommendations made by Public Health Agency of Canada, Ontario Ministry of Health and Long Term Care, and the Toronto Public Health Department.

In any event, if an employee is absent due to H1N1, related symptoms or quarantine, the employer should consider allowing the employee to use any available sick days. The employee may also be able to take advantage of any short-term disability coverage. If there are no available sick days or short term disability benefits, or the employee does not wish to use them, the employer should consider allowing the employee to use relevant vacation time. In any event, if an employees is required to remain at home by the school/school board, we recommend that the employee continue to be receive his/her regular salary and benefits.

CONCLUSION

A number of school boards have already developed an influenza pandemic response plan in collaboration with professionals from hospitals, government agencies, emergency services and community organizations. In keeping with the WHO's phased approach, these pandemic response plans should be organized in three phases: preparedness; response and mitigation; and recovery and evaluation. The purpose of the plan is to practice active surveillance to identify the earliest signs of an influenza pandemic, to minimize disruption to schools and to communicate with all of the stakeholders.

It is important that schools educate and inform staff, students, and parents about their response plan, and continue to update staff, students, and parents on any relevant developments.

For further information about legal issues surrounding H1N1, please feel free to contact any member of the Borden Ladner Gervais LLP labour and employment law group. We will keep you updated on any significant developments.

Footnotes

1. WHO, Pandemic (H1N1 (2009)-update 64, (September 4, 2009).

2. Pubic Health Agency of Canada, "Public Health Guidance for Child Care Programs and Schools (K to grade 12) regarding the Prevention and Management of Influenza-Like Illness (ILI), Including the Pandemic (H1N1) 2009 Influenza Virus". ILI is defined in the Guidelines as the acute onset of respiratory symptoms with fever and cough and one or more of the following symptoms: sore throat, muscle aches, joint pain or weakness. Gastrointestinal symptoms may also be present and fever may not be prominent.

3. ibid.

4. Ministry of Health and Long-Term Care, H1N1 Update (August 18, 2009)

5. Pubic Health Agency of Canada, Public Health Guidance for Child Care Programs and Schools (K to grade 12) regarding the Prevent ion and Management of Influenza-Like Illness (ILI), Including the Pandemic (H1N1) 2009 Influenza Virus.

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