Employers may consider getting out in front of the issue by openly communicating with workers before fear spreads unnecessarily. Workers can be made aware that preventing an outbreak within the workplace is a top priority for their employer and that steps are being taken to monitor and respond to developments as they occur. Workers can also be directed to available resources for informational or educational purposes, which may also serve to alleviate panic and anxiety. For instance, the Public Health Agency of Canada has assessed the public health risk associated with coronavirus as "low" for Canada and for Canadian travelers (see here).

Employers may benefit from reminding employees of their statutory or contractual rights to sick leave, family-related leaves of absence and any applicable short-term disability entitlements. Employees should be encouraged to take any necessary time away from work if they experience flu-like symptoms and to report any such symptoms to the health authorities – particularly if they have recently travelled to mainland China.

It should be made clear to workers that there will be no negative employment consequences resulting from the exercise of statutory or contractual rights, for reporting symptoms to the appropriate authorities, and/or for testing positive for coronavirus.

Statutory Leaves of Absence

Workers may be able to avail themselves of various unpaid leaves under applicable employment standards legislation where they, or a member of their family, contracts the coronavirus. For instance, under Ontario's Employment Standards Act, 2000 (ESA) applicable unpaid leaves may include:

  • Sick leave: three unpaid days off per calendar year in the event of personal illness, injury or a medical emergency.
  • Family responsibility leave: three unpaid days off per calendar year in the event of (i) an illness, injury or medical emergency involving certain classes of family members or (ii) another "urgent matter" that involves one of those family members.
  • Family medical leave: up to 28 weeks in a 52-week period where the employee is providing support to certain classes of family members suffering from a serious medical condition, who are at significant risk of death within 26 weeks.
  • Family caregiver leave: up to eight weeks to care for or support certain classes of family members suffering from a serious illness.
  • Critical illness leave: up to 37 weeks to provide care or support to a critically ill minor child or 17 weeks to provide care or support to a critically ill adult family member.

Similar statutory leaves exist for workers under applicable employment standards legislation across Canada, including Alberta's Employment Standards Code, British Columbia's Employment Standards Act.

In addition to leaves above, the ESA also provides for "declared emergency leave" that may be applicable in the event the coronavirus outbreak evolves into a global pandemic. In order for this provision to apply, an emergency must first be declared under the Emergency Management and Civil Protection Act.

Financial Entitlements for Affected Workers

Workers who are absent as a result of the coronavirus have three potential sources of financial entitlement: contractual sick/disability policies, employment insurance, and claims under the Workplace Safety and Insurance Act, 1997 (WSIA).

Entitlement to compensation under the terms of a short-term disability policy will depend on the wording of the policy. Generally, a worker who has suffered from coronavirus will have the right to be treated in the same way as an employee who has suffered from any other applicable form of temporary illness. A disability policy may or may not extend to cover an individual who is not sick but is subject to quarantine (whether self-imposed or government-mandated). In the case of quarantine, even if not expressly addressed under benefit plan or policy documents, employers may nevertheless wish to remain flexible in the administration of benefits.

Under the Employment Insurance Act, workers who experience a reduction in normal weekly earnings of at least 40% because of "illness, injury or quarantine" are eligible for EI sickness benefits. In order to qualify, workers must have accumulated a certain amount of insurable hours in the qualifying period.

Workers who contract the coronavirus in the course of their employment may be eligible for loss of earnings benefits under the WSIA, along with compensation for medical expenses and access to related services. However, as was the case during the outbreak of severe acute respiratory syndrome-related coronavirus (SARS or SARS-CoV) in Canada, workers may have a difficult time proving they contracted the illness "in the course of their employment" – particularly if they have been exposed to a large number of people.

Human Rights Considerations

In order to comply with the legal requirement under Ontario's Occupational Health and Safety Act (OHSA) to take every precaution reasonable in the circumstances to protect the safety of its workers, many employers may be inclined to require any employee who has just travelled from China or Asia to stay at home and away from the workplace. While the motivation for adopting such a policy may be well-intentioned, it carries a significant risk of violating human rights legislation, which prohibits discrimination on the basis of disability (perceived or real), race, colour, ethnic origin and/or place of origin.

In particular, given the fact that neither the federal nor provincial health authorities have imposed or even recommended quarantines, it may be seen as unreasonable for employers to take it upon themselves to enact a policy that effectively forces employees to quarantine themselves. If the policy is found to be unreasonable and/or unnecessary, the fact that the policy would disproportionately impact certain individuals on prohibited grounds may lead a human rights adjudicator to the conclusion that such a policy is discriminatory.

 

In 2003, the Ontario Human Rights Commission took the position that "discriminatory action against any persons or communities because of an association with SARS, perceived or otherwise, is prohibited by the Ontario Human Rights Code." In this context, the Commission reminded the public that barring someone from a place of employment because of their race or place of origin is unlawful and contrary to the Code. A similar approach is likely to be adopted with respect to the coronavirus.

However, if it can be confirmed that an individual has travelled to mainland China or another particularly high-risk area, it may be reasonable to request that the worker stay home in order to ensure the health and safety of the workplace. Still, the negative impact of this request should be minimised to the extent possible, including by maintaining the employee's pay and benefits and allowing them to work from home, where operationally feasible. Where an employee is clearly exhibiting flu-like symptoms or has a confirmed case of coronavirus, employers are within their rights to send the worker home, either with or without pay depending on applicable policies, plans, and past practices.

While the common flu is generally not considered a disability, confirmed cases of coronavirus may be deemed to be a disability under applicable human rights legislation. In this case, a worker who contracts coronavirus would be entitled to reasonable accommodation, which may include a leave of absence for the duration of their illness in excess of any leave entitlements they may have under applicable employment standards legislation.

Work Refusals

Workers generally have the right to refuse work if they have a genuine belief that a condition of the workplace is "likely to endanger" their health or safety. Under the OHSA, a work refusal triggers an obligation to investigate the circumstances of the refusal and, if the issue cannot be resolved, the involvement of a Ministry of Labour inspector. Failure to comply with the OHSA provisions relating to work refusals may result in fines. Similar provisions exist under the Canada Labour Code, as well as in other provincial jurisdictions across Canada.

Importantly, there are a variety of employees that are exempted from the right to refuse work. These exempted employees include, among others, police officers, paramedics and many persons employed in the operation of hospitals and health care institutions.

During the 2003 SARS outbreak, many workers refused work under the work refusal provisions of the Canada Labour Code simply due to the fact that they would be exposed to individuals returning from countries where the illness was prevalent. In the cases where such work refusals were reviewed by an appeals officer, the workers were generally unsuccessful. Appeals officers consistently found that the risk of contracting SARS from such individuals did not meet the level of danger required to justify a work refusal.

We would like to thank Mark Van Ginkel for contributing this article.


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