On February 28, 2020, the World Health Organization raised the global risk assessment of COVID-19 (also known as the "Coronavirus") to "very high". This post is intended to address issues that have been raised by employers since our last post on the matter (which can be found here) and the near-global spread of COVID-19.
The COVID-19 Pandemic
As of March 2, 2020, COVID-19 has spread to more than 58 countries. In Canada, 30 cases have been confirmed, including 1 case in Quebec.
Given the near global spread of COVID-19, employers must ensure the health and safety of their employees. It is advisable for employers to issue written communications to employees providing information, such as useful website links, regarding the symptoms and outbreak of COVID-19. These communications should also provide clear guidelines with respect to the company's expectations.
According to available and accessible information, the general symptoms of COVID-19 can be similar to those of the flu and the common cold, making it difficult to identify those who may be affected. In addition, the symptoms can take up to 14 days to appear after an exposure to COVID-19.
The symptoms of COVID-19 are identified by the Government of Canada, the Government of Quebec and the World Health Organization as follows1:
- Breathing difficulties; and
- Infection in both lungs (pneumonia / lung failure).
COVID-19 is transmitted by small droplets that are projected when sneezing, coughing, or simply by talking (sputtering) during a conversation. Close contact, within one metre, with an infected person or direct contact with an infected surface can lead to the transmission of the virus.
According to available information, it should be noted that the risk of complications from the virus is higher for immunocompromised individuals, those with chronic illnesses, and the elderly.
Obligations of Employers and Employees
Since the workplace is conducive to the exposure and spread of COVID-19, it is important to remind both employers and employees of their rights and obligations.
First, every employer has an obligation to ensure the health and safety of its employees under the Civil Code of Quebec and the Quebec Occupational Health and Safety Act. To that end, employers must take the necessary measures that are required according to the circumstances, including measures of prevention, training, information and action.
In addition, these measures must be taken while respecting human rights and freedoms provided by Quebec's Charter of Human Rights and Freedoms and the Civil Code of Quebec. More specifically, in the context of an epidemic, the employer must take measures that are respectful of the rights to life, security, integrity and privacy of its employees, customers and business partners.
A case-by-case analysis is required to determine whether a violation of any of these rights is reasonable and justified in the circumstances; that is, the violation must be minimal and proportional, in terms of its detrimental effects with respect to the pursued health and security objectives. It should be noted that tribunals have stated that any medical interventions involving a violation of a person's integrity, including medical tests or screenings which can reveal personal information, constitute an important intrusion in the private sphere of the employees.
The employer may, under certain circumstances, restrict access to the workplace. In this regard, we refer to the Superior Court decision rendered in 2009 in Syndicat des professionnelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) v. Morin2. In that case, the Court concluded that prohibiting access to a workplace, during a time that an epidemic situation is occurring, to an employee who had not been vaccinated and who refused such vaccination, does not constitute a violation of a right protected by the Charter of Human Rights and Freedoms. Moreover, the resulting loss of wages was held to be only an economic constraint and not a violation of a fundamental right. The Court also stated that, due to the significant risk that this employee would infect her co-workers, the employer's actions were justified (considering its obligations to protect the health, safety and physical integrity of all employees).
In light of the foregoing and given the issues related to COVID-19, we believe that an employer could be justified, through the exercise of its right of management, to remove from the workplace, with or without pay, an employee who exhibits symptoms similar to those of COVID-19.
In addition, an employer could also consider implementing certain concrete measures to detect symptoms, among its employees, either through observation, questioning or through more sophisticated methods, such as the use of infrared equipment to detect high body temperatures, similarly to those currently used in some airports and public places. If the use of such equipment is considered, a prior legal analysis would be appropriate in order to establish that this procedure constitutes a minimal violation of fundamental rights and is a proportionate measure given the circumstances.
As for employees, they also have an obligation to take the necessary measures to protect their own health and safety as well as the health and safety of those with whom they interact on the job. In the context of COVID-19, this implies that employees must be vigilant, with respect to the possible transmission of this virus, and must immediately inform their employer of any infection or possible contact with COVID-19, or any other risk of contamination, in order to ensure the health and safety of their co-workers and any person they are called upon to interact with.
In addition, it is important to remember that an employee has the right to exercise a right of refusal, if he or she has reasonable grounds to believe that performing the work would endanger either his or her own health, safety or physical well-being or those of another person. This is the right of refusal provided for in the Quebec Occupational Health and Safety Act.
Finally, employers should also keep in mind that an employee who is pregnant or breastfeeding could benefit from the "Pour une maternité sans danger" program in the event that her doctor considers that her workplace is dangerous to the unborn child or, because of her pregnant state, to herself. The possible exposure to COVID-19 in the workplace could therefore be considered a danger. In fact, several employees have used this program during the H1N1 flu pandemic.
Workplace Management - Recommendations
In the context of COVID-19, we strongly encourage employers to be proactive and to adopt a clear written policy to prevent the spread of COVID-19 in order to protect their employees, customers, business partners and the general public. More specifically, the measures we recommend are as follows:
- Consider retaining the services of a health care professional in order to keep up to date with the latest medical developments and the best prevention procedures;
- Implement a protocol to maintain a clean and hygienic workplace. This protocol must take into account the specific work environment and the industry in which the employer operates in order to address specific risks to employees, customers, business partners and the public. This protocol will be different depending on the type of establishment, particularly in the case of touristic establishments, health establishments or establishments serving the elderly population;
- Encourage the practice of good hygiene for both your employees and for anyone who has access to the workplace:
- Regularly disinfect surfaces and objects such as desks, tables, telephones, keyboards, kitchen appliances and door handles;
- Display or communicate announcements on the importance of regular hand washing and the effective methods to prevent the contamination and spread of viruses;
- Display or communicate messages on the importance of covering mouth and nose when coughing and sneezing, but not with their hands, disposing used tissues promptly, and washing hands afterwards to reduce the risk;
- Make sure that employees, customers, business partners and other visitors have access, at all times, to an area where they can wash their hands, and that soap dispensers are filled regularly;
- Put hand sanitizer dispensers in prominent locations in the workplace and making sure that these dispensers are filled regularly;
- Make sure that tissues as well as waste bins, with lids, are available in the workplace;
- Make sure that masks are available for anyone with COVID-19 symptoms who needs to be removed from the workplace;
- Encourage employees, customers, suppliers and business partners to be alert in the presence of COVID-19 symptoms by providing regular updates on COVID-19 symptoms and personal conditions that may increase health risks;
- Encourage employees to maintain healthy lifestyle habits.
- Encourage employees to consult reliable sources of information – e.g. the World Health Organization (WHO), the Public Health Agency of Canada, the Quebec Ministry of Health and Social Services or the Quebec National Institute of Public Health – and not to rely on rumours and speculation;
- Depending on the case, suspend business travels outside the country and put in place a specific disclosure process for employees who plan to travel or have travelled outside the country, for professional or personal reasons, or who have been in contact with a person who has visited a region or country affected by the epidemic, or that is considered to be at risk:
- Request that an advance notice be given by any employee who intends to travel outside Canada, including information on the travel itinerary (regions and countries the employee plans to visit);
- Ask to be notified by any employee who has travelled, after February 1, 2020, outside the country or who has been in contact with a person who has visited a region, or country, affected by the epidemic in the last month;
- Raise awareness for any employee, who has travelled outside the country, on the importance of monitoring his temperature twice a day and the onset of symptoms regarding respiratory infection. Avoid close contact with other people, specifically those who are more at risk, such as pregnant women and the elderly;
- Assess the possibility of placing any employee, who has travelled outside the country, on a remote work assignment or arrange his or her workstation to avoid locations where at-risk people are located. Organize his or her work schedule to avoid unnecessary meetings and close contact with others;
- Inform employees that a 14-day quarantine could be enforced, before a return to work, for any employee who has travelled outside the country, or has been in contact with a person who has visited a region or country affected by the epidemic;
- Inform employees that a medical examination may be requested prior to a return to work for any employee who has travelled outside the country, or who has been in contact with someone who has visited a region or country affected by the epidemic;
- Ask employees, customers, suppliers and business partners with symptoms similar to COVID-19 not to report to the workplace and allow for remote work whenever possible.
- As the case may be, implement or revise the corporate action plan for business continuity in the event of a crisis or pandemic:
- Identify a coordinator and a team in charge of implementing the action plan by clearly describing their roles and responsibilities respectively;
- Identify and prioritize the company's services required to ensure the continuity of operations in the event that some, or all, of the company's activities are suspended;
- Develop an emergency communication plan and revise it periodically;
- Develop scenarios that could lead to an increase or decrease in demand for your products and/or services during a crisis or pandemic;
- Proceed with the training of the employees who will be responsible of implementing the action plan;
- Proceed with reliability testing and updating of remote work systems.
- Display or communicate an announcement asking employees, or other persons, not to report to the workplace if they are experiencing COVID-19 symptoms, even in the event of a low fever and moderate coughing that could be due to the flu, and if applicable, request medical clearance before returning to work for any employee experiencing such symptoms;
- Adopt a clear policy on the treatment, with respect to the days of absence, for employees with COVID-19-like symptoms when access to the workplace is restricted to employees:
- Inform employees about the possibility of using sick leave, annual vacation bank, paid or unpaid leave and salary insurance benefits, all in accordance with the collective agreement, if applicable. On this point, it will be interesting to see if the Government of Canada will follow the initiative of other countries that have removed the waiting period related to employment insurance benefits for sick leave;
- Take into account the leaves with or without pay provided in the Quebec Labour Standards Act. On this point, the Act provides, among other things, that an employee may be absent from work:
- for a period of not more than 26 weeks, without pay, over a period of 12 months due to illness;
- for 10 days a year, namely due to illness and to fulfill obligations related to the health of a child or a parent. The first two days taken annually shall be paid for an employee who has completed three months of continuous service;
- for a period of not more than 16 weeks over a period of 12 months when his or her presence is required with a relative or a person for whom the employee is acting as a caregiver;
- for a period of not more than 27 weeks over a period of 12 months when his or her presence is required with a parent, other than a minor child, or with a person for whom the employee is acting as a caregiver.
- Consider a 14-day quarantine and/or medical examination procedure:
- Establish the criteria that will be taken into consideration when requesting an employee to be quarantined for 14 days and/or to undergo a medical examination such as, the nature of the workstation, the presence of certain symptoms and the regions or countries visited recently. The grounds invoked in support of such request must be legitimate and reasonable. Consider partnering with an independent physician to conduct a medical examination before allowing a return to work.
- Adopt specific instructions if a case of COVID-19 is confirmed among one of your employees present in the workplace:
- Inform those who have been in contact with this employee;
- Establish a quarantine procedure, if necessary;
- Clean the affected work areas.
It should be noted that currently, according to information published by the Public Health Agency of Canada3, testing for COVID-19 is only permitted if a person is a "person under investigation" or a "probable case":
- A "Person Under Investigation" is a person with a fever and/or onset of cough, difficulty breathing and any of the following (within the 14 days prior to the onset of the illness):
- has travelled to an affected region (as of March 3, 2020 the affected countries and regions are: China, South Korea, Hong Kong, Iran, northern Italy, Japan and Singapore);
- has been in close contact with a confirmed or probable case of COVID-19;
- has been in close contact with a person exhibiting an acute respiratory illness who had travelled to an affected area in the 14 days prior to the onset of the illness.
- A "Probable Case" is a person with a fever (over 38 degrees Celsius) and/or showing the onset of cough (or exacerbation of chronic cough), and:
- who has travelled to an affected region (as of March 3, 2020 the affected countries and regions are: China, South Korea, Hong Kong, Iran, northern Italy, Japan and Singapore); or
- who has been in close contact with a confirmed or probable case of COVID-19; or
- who has been in close contact with a person, exhibiting an acute respiratory illness, who has travelled to an affected area in the 14 days prior to the onset of the illness; and
- for which the laboratory diagnosis for COVID-19 leads to a diagnosis that is inconclusive, negative or positive but has not been confirmed by the National Microbiology Laboratory (NML) or the Public Health Laboratory of a province or territory using nucleic acid amplification testing (NAAT).
Given the accelerated evolution of COVID-19 around the world, the guidelines mentioned above will have to be re-evaluated according to the seriousness of the situation, the increase in the number of affected, and the identities of at-risk regions – as well as the impact on the activities of businesses in Quebec and Canada.
1 Government of Canada, Coronavirus disease (COVID-19): Symptoms and treatment, online: https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/symptoms.html (accessed on March 2, 2020).
2 Syndicat des professionnelles en soins infirmiers et cardio-respiratoires de Rimouski (FIQ) v. Morin (C.S., 2009-06-08), 2009 QCCS 2833; See also : Charbonneau v Poupart (C.S., 1990-03-26), J.E. 90-722,  R.J.Q. 1136, Withdrawal of appeal (C.A., 1995-02-27) 500-09-000631-903.
3 Public Health Agency of Canada, Interim national case definition: Coronavirus Disease (COVID-19), online : https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection/health-professionals/national-case-definition.html (accessed on March 3, 2020).
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.