The recent outbreak of the Novel Coronavirus (2019-nCoV) ("Coronavirus") continues to spark concern worldwide, which is sure to increase considering that the World Health Organization ("WHO") classified the outbreak as a "Public Health Emergency of International Concern" on January 30, 2020. This characterization means the virus is a public health risk to places beyond its origin country, and may require a coordinated international response to control.
Although the gravest effects are still largely contained in China, its country of origin, over 18 countries worldwide have reported cases of Coronavirus, including four (4) confirmed cases to date in Canada.1 Due to lessons learned and legal mechanisms developed in relation to the 2003 SARS pandemic, there is better coordination and planning of efforts at all levels of government. Currently, the outbreak is being managed by provincial and territorial emergency management and public health agencies.
There are concerns that the Coronavirus can be spread by various forms of human-to-human contact, which raises workplace issues and brings back grim memories of the 2003 SARS pandemic. The lessons learned during the SARS outbreak should inform and improve employers' response to the Coronavirus going forward. This Communiqué aims to provide Canadian employers with information and guidance in dealing with workplace issues that may arise. We encourage employers to monitor the situation as it evolves. We have included some useful links to information sources below.
The main areas of concern when it comes to employment standards are employee absences due to illness, family responsibilities, and other leaves. Employees may be entitled to paid or unpaid statutory leaves of absence in connection with the effects of the Coronavirus on themselves or their families.
In British Columbia, there is no statutory right to paid sick leave so an employee's entitlement to paid sick leave is determined by their employment contract. However, British Columbia's Employment Standards Act ("ESA") does allow employees to take up to five (5) days of unpaid family responsibility leave to care for ill family members. The BC ESA also provides employees with up to 27 weeks of unpaid compassionate care leave to provide care or support to a family member who has a serious medical condition with a significant risk of death within 26 weeks, as well as up to 36 weeks of unpaid leave to provide care or support to a family member whose baseline state of health has significantly changed, and whose life is at risk as the result of illness.
In Alberta, critical illness leave is available to employees employed at least 90 days with the same employer. Employees can take up to 16 weeks for the critical illness of an adult or 36 weeks for the critical illness of a child as unpaid leave. A medical certificate is required to support the critical illness and to demonstrate that the employee is required to care for the family member.
In Saskatchewan, The Saskatchewan Employment Act provides that employees with at least 13 weeks of employment with an employer may not be discriminated against because of an absence due to illness or injury. Eligible employees may take up to 12 unpaid days per calendar year for a non-serious illness or injury, and up to 12 unpaid weeks where the illness or injury is considered to be serious. Employees are also entitled to similar job protection while absent from work due to the illness or injury of an immediate family member who is a dependent. If the illness or injury constitutes a disability, then additional obligations are imposed on the employer pursuant to The Saskatchewan Human Rights Code, 2018.
In Ontario, the Employment Standards Act, 2000 provides that employees with at least two (2) weeks of service with an employer may take up to three (3) unpaid days of leave due to personal illness, injury, or medical emergency, along with an additional three (3) days of unpaid leave to care for a family member who has fallen ill. Employees may also be entitled to up to eight (8) weeks of unpaid leave to provide care or support to a family member with a serious medical condition, up to 28 weeks of unpaid leave to care for a family member with a serious medical condition with a significant risk of death within 26 weeks, up to 37 weeks to provide care for a critically ill minor child and up to 17 weeks to care for a critically ill adult family member. In addition, employees may be entitled to unpaid leave under the "declared emergency leave" provisions of the Act if they are unable to perform their duties because of a declared emergency and because, for example, they are under an order to remain in a certain area or are ordered to be quarantined.
In Québec, the Act Respecting Labour Standards provides for up to 26 weeks of unpaid leave per 12-month period due to sickness or accident, with the first two (2) days being paid for employees with three (3) months of uninterrupted service. Employees may also be entitled to up to 16 weeks of unpaid leave per 12-month period to care for family members.
It is important to note that each province's legislation may define who is considered to be a "family member" differently and may require certain formalities to be satisfied (e.g. written notice of leave, medical documentation etc.) before an employee can exercise their rights with respect to sick leave.
Moreover, statutory requirements may be subject to change, as they were during the SARS outbreak. For example, Ontario's SARS Assistance and Recovery Strategy Act, 2003 provided employees additional unpaid leave for medical investigation, treatment, or quarantine for themselves or family members.
Occupational health and safety
Employers across Canada are required to ensure their workplaces are safe for employees.
Each province has legislation that sets out employers' obligations with regards to health and safety. However, regardless of the provinces in which you have workplaces, the following workplace health and safety precautions are recommended:
- Continue to remind employees to wash their hands.2
- If an employee exhibits symptoms of Coronavirus3 or has been in direct contact with someone who has symptoms of Coronavirus, consider denying access to work, sending the employee home for isolation, and advising them to see a doctor.
- If an employee has visited Wuhan, China during or just prior to the outbreak, consider whether the employee should be sent home and advised to seek medical attention.
- Consider restricting non-essential travel to countries affected by the outbreak.
For additional information, please consult the provincial guidelines applicable to your workplaces:
- Quebec: https://www.csst.qc.ca/Pages/index.aspx (in French only)
- Ontario: https://www.ontario.ca/document/guide-occupational-health-and-safety-act
- Saskatchewan: https://www.saskatchewan.ca/business/safety-in-the-workplace
- Alberta: https://www.alberta.ca/occupational-health-safety.aspx
- British Columbia: https://www.worksafebc.com/en/law-policy/occupational-health-safety/searchable-ohs-regulation/ohs-regulation
Remember that most employees, with the exception of emergency responders, some public service employees and front-line healthcare providers (depending on the province), can refuse to work if they believe their workplace poses a danger to their health or safety.
If such a refusal takes place, employers must investigate the situation immediately and attempt to resolve the situation with the employee. In the event that a resolution is impossible, employers must notify the relevant labour inspector or officer, as dictated by provincial legislation.
Furthermore, employers cannot threaten, discipline, or otherwise take reprisals against an employee who refuses to work on the basis of workplace health and safety concerns.
In fact, it is important that employees do not feel they will be penalized for refusing to come to work because of health issues relating to the Coronavirus. Proper isolation and early medical attention may be crucial to preventing the spread of the virus. Employees who come to work, despite experiencing symptoms due to fears that they cannot afford an unpaid leave, increase the risk of infection in the workplace.
Additionally, employers may want to consider ensuring that the Coronavirus falls within any short-term disability policies in effect. As each insurance plan is unique, we suggest contacting your insurer directly to determine whether employees who must be isolated or quarantined are eligible for benefits under your plan. Employers may also consider allowing employees to take sick leave, vacation days, or days in lieu, allowing them to be absent from work without penalty.
Workplace safety and insurance
If employees become infected with the Coronavirus and can link contraction of the virus to the nature of their employment, they may be entitled to compensation benefits under workplace health and safety benefit programs.
During the SARS pandemic, Ontario's Workplace Safety and Insurance Board ("WSIB") announced that workers with symptoms of SARS who had been infected in the course of their employment could be entitled to WSIB benefits, to be determined on a case-by-case basis.
No such announcement has yet been made by any of Canada's provincial or federal boards.
Human rights: Discrimination and disability
Employers across Canada must take positive measures to ensure their employees work in an environment free of harassment and discrimination. Provincial human rights legislation prohibits discrimination and harassment in the private sector employment context. Among the provincially protected grounds of discrimination are ancestry, disability, race, ethnicity, and place of origin (depending on the province).
Although there has been no case law nor official policies published federally or provincially on the classification of the Coronavirus as a disability, the Ontario Human Rights Commission's ("OHRC") response during the SARS outbreak indicates developments in this area must be monitored.
The OHRC classified SARS as a handicap and thus employers in Ontario had a duty to accommodate employees with SARS or employees who were exposed to SARS. The extent of the required accommodation varied depending on the circumstances, but could include allowing the affected employee to take time off work or to work from home, if possible.
Moreover, the origins of the Coronavirus are believed to be in Wuhan, China and the virus is known to be spreading across mainland China into Hong Kong, Japan, Thailand, and Vietnam. Similar to the SARS outbreak, there is concern about possible discrimination or harassment against Canada's Asian-Canadian community. Employers should be aware that preventing access to the workplace or refusing to hire someone due to any protected ground under the applicable human rights legislation could be considered discriminatory.
During the SARS outbreak, Human Resources Development Canada amended the Employment Insurance Regulations to respond to SARS-related claims. Where a period of quarantine had been imposed or recommended by a public health official or the individual was asked by their employer, doctor, or another person in authority to quarantine themselves, the customary two-week waiting period was waived as well as some documentary requirements.
It is still too early to determine whether the federal government will adopt the same approach, especially considering that the Public Health Agency of Canada maintains that the public health risk of Coronavirus to Canadians is low.4
Employees continue to have the right to ensure their personal information, including their health status, is kept private and confidential. Employers must balance the need to ensure private personal information is not disclosed throughout the workforce with their obligations to ensure the safety of the workplace.
We encourage employers to contact Miller Thomson's Labour and Employment, Health Industry, and Privacy groups with any questions regarding what employee health information you are entitled to request, how it can be used and to whom it can be disclosed and under what circumstances.
Practical recommendations and risk management
In our view, all employers should take proactive steps to ensure the protection of their workplace. The following actions may be subject to a policy or directive from the employer and should be clearly communicated throughout the workplace:
- The employer should provide information about the Coronavirus to employees and outline symptoms and criteria to watch for, and the actions that the employee and employer are required to take.
- The employer should designate an individual or form a team to monitor the Coronavirus in the workplace and to coordinate prevention efforts.
- Employees should be encouraged to voluntarily quarantine themselves if they are exhibiting symptoms or have been in direct contact with someone who is symptomatic. Employees should be made aware of notification requirements when making the decision to voluntarily quarantine themselves.
- Employers ought to consider their policy in the event that an employee exhibits symptoms or has been in contact with someone who is symptomatic of Coronavirus, and that individual has not quarantined themselves voluntarily.
- Employees should be encouraged to wash their hands frequently. Signs should be posted in appropriate areas in this regard. Employers can also consider offering hand sanitation supplies.
- Depending on the progress of the virus within Canada, employers ought to consider revising their travel and travel-reporting policy with respect to high risk areas.
- Employers can initiate directives limiting non-essential internal and external person-to-person contact. Use of technology in place of person-to-person contact may be encouraged.
- Contingency plans should be developed to limit possible work interruptions for those who perform essential duties in the workplace.
The above may be subject to obligations contained in collective agreements or individual employment contracts.
Employers should ensure that they monitor regular updates from WHO and government sites.
Miller Thomson's National Labour and Employment Group and National Health Industry Group are working together to monitor Canada's legal and policy developments in response to the threat of the Coronavirus and will provide updates as the situation progresses.
This Communiqué is a synthesis of information currently available. For more detailed information, please refer to the websites listed throughout this Communiqué and below.
World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
Public Health Agency Canada: https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html
Québec updates on Coronavirus: https://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/
Ontario's Ministry of Health: https://www.ontario.ca/page/2019-novel-coronavirus-2019-ncov
Public Health Ontario: English: https://www.publichealthontario.ca/en/diseases-and-conditions/infectious-diseases/respiratory-diseases/novel-coronavirus
Government of Alberta link to information on 2019-nCov for Albertans: https://www.alberta.ca/coronavirus-info-for-albertans.aspx
Alberta Health Service's page on the virus: https://www.albertahealthservices.ca/topics/Page16944.aspx
Saskatchewan public health information: https://www.saskatchewan.ca/government/health-care-administration-and-provider-resources/treatment-procedures-and-guidelines/emerging-public-health-issues/2019-novel-coronavirus
Health Link British Columbia: https://www.healthlinkbc.ca/
British Columbia Centre for Disease Control (Coronavirus): http://www.bccdc.ca/about/news-stories/stories/2020/information-on-novel-coronavirus
1 This is accurate as of the drafting of this Communiqué.
2 For downloadable print-outs in English and other information on health and safety precautions, consult the WHO's Public Advice page: https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public
3 For information on Coronavirus symptoms, please consult the Government of Canada's website: https://www.canada.ca/en/public-health/services/diseases/coronavirus.html
4 For updates please visit Public Health Services Canada's website: https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html;
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.