As global concerns are on the rise, and in light of yesterday's news of the first presumptive case of Coronavirus in Atlantic Canada, employers in this region should consider how to respond if the Coronavirus presents within the workplace.
What is Coronavirus?
COVID-19, commonly referred to as Coronavirus, is a virus which may cause symptoms ranging from those normally associated with the common cold to severe respiratory illness. Health Canada advises that symptoms may not present for 14 days following an individual's exposure to the virus. Some individuals with the Coronavirus may remain asymptomatic. Others may experience fever, coughing, difficulty breathing, or pneumonia. In a vulnerable population, resulting infections may be fatal. Coronavirus may be spread from an infected person through respiratory droplets when coughing or sneezing, or close and prolonged personal contact. The virus may also be contracted where an individual touches something with the virus on it, and then, without proper handwashing, touches their mouth, nose or eyes. While the Public Health Agency of Canada currently states the risk of contracting Coronavirus is low for Canadians, there is currently no vaccine to protect against COVID-19. As of March 12, 2020, 103 cases of Coronavirus have been confirmed in Canada, including 1 death.
What legal obligations do employers have?
Given the incidence of COVID-19 cases in Canada, employers should give consideration to how they will respond to Coronavirus issues in the workplace. To properly respond, the employer must have an understanding of its legislated obligations to its employees. The legislation outlined below represents statutory duties imposed on employers in Atlantic Canada. While this article focuses on these statutory duties, employers should also be aware of possible obligations created through other means such as policies, a collective agreement or employment contract.
a) Occupational Health & Safety
Across Atlantic Canada, occupational health and safety legislation obligates employers to provide a safe workplace to their employees. The employer must take every reasonable precaution to ensure the health and safety of their employees, including making efforts to identify risks and to implement proper controls to address those risks. In certain circumstances, an employer may request that a symptomatic employee go home (and remain home) in order to protect other employees in the workplace.
The obligation on the employer to provide a safe work environment is paired with the right of the employee to refuse unsafe work where the employee has reasonable grounds to believe their health and safety is likely to be endangered. Occupational health and safety legislation in each Atlantic Canadian province addresses the steps to be taken where such a refusal is made so that the employee can safely return to work.1 Employees who refuse unsafe work may be reassigned, although, given the nature of possible Coronavirus-related complaints, it is unlikely an employee could be relocated to another position within the same worksite. Remote working, in certain circumstances, may be possible and appropriate.
Employee rights are not absolute and an employer cannot be forced to yield to an employee's irrational, subjective or idiosyncratic notions of health. The right to refuse work will only arise where a reasonable belief that the employee's health is in danger exists. For example, an employee who is required to travel as part of their employment duties may reasonably refuse to travel, especially to an area where the risk of contracting COVID-19 is high or where they may be exposed to individuals who may have traveled from such areas. In these circumstances, employers should rely on Government of Canada Travel Advisories to help determine the level of risk.
b) Employment/Labour Standards
Employment/Labour standards legislation in each province in the region provides several types of unpaid leave that may be taken by employees for themselves or to care for family members who have contracted COVID-19.2 Unless there is an established requirement in the workplace or employment contract to do so, employers are not required to provide employees with paid sick leave (but see exception in PEI legislation below). While there may be statutory requirements to provide sick notes following an absence of a certain duration, the Canadian Government is suggesting employers do not request sick leave notes to avoid putting added pressure on the health care system during the outbreak.
Employees in Nova Scotia are also entitled to unpaid leave where an emergency prevents them from performing their duties. "Emergency" has several definitions, including a public health emergency declared by the Minister of Health. Emergency leaves continue as long as the emergency prevents the employee from completing their duties and ends on the day the emergency is terminated or the emergency no longer prevents the employee from performing their duties. No other Atlantic Canadian province has a similar employment/labour standards provision.
Finally, employees can also claim unpaid leave to care for a critically ill child or adult. In order to apply for these types of leave, the employee must have been employed for a minimum period of time and a medically qualified professional must issue a certificate stating the individual is critically ill and requires the care and support of the employee.
c) Workers' Compensation
Questions may arise as to an employee's right to claim Workers' Compensation for work missed due to COVID-19. This legislation generally provides that respective Workers' Compensation Boards or Commissions in each Atlantic Canadian province will pay compensation to an employee who suffers injury through an accident arising out of and in the course of their employment.
In determining whether the injury is "arising out of and in the course of employment"3, courts in Canada have interpreted the phrase to include activities that are incidental to employment. Accordingly, an employee working in an industry where exposure to Coronavirus is part of their occupation, such as a health care professional, may have a claim under occupational disease causing disablement.
d) Human Rights and Discrimination
Disease-related illnesses are not a protected individual characteristic pursuant to human rights legislation in Atlantic Canada. That said, human rights legislation does protect employees from discrimination on the basis of physical or mental disability. While transient temporary illnesses have generally been found not to constitute a physical disability, during the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak, SARS was treated as a “disability” under the Ontario Human Rights Code. Therefore, an individual inflicted with COVID-19 may be entitled to protections under human rights legislation.
Another important and unique prohibited ground to consider in Nova Scotia is discrimination on the basis of "an irrational fear of contracting an illness or disease". This human rights protection prevents employers from discriminating against employees who have been diagnosed with illnesses or diseases where there is no rational reason to fear transmission or spread of the illness or disease. For example, a Nova Scotia Human Rights Board of Inquiry has held that terminating an employee who once had hepatitis on the basis he could spread the disease to children he worked with was discriminatory because the employee was no longer infectious. Employers in Nova Scotia who make the decision to send a sick employee home should therefore focus on employee health and safety rather than fear of transmission.
Employees who are required to take time off work to care for family members may also be protected from discrimination and entitled to accommodation on the basis of family status. Whether the duty to accommodate applies will depend on many factors. Where an employee wishes to take a leave of absence to care for a family member due to COVID-19, employers should carefully assess the specific circumstances to determine if the duty to accommodate applies.
Finally, misconceptions and stereotypes regarding people who may carry Coronavirus due to the suspected origins of COVID-19 should not be tolerated. These notions are unfounded and any action by an employer to discriminate on the basis of race, colour, ethnic or national origin will be in breach of human rights legislation.
e) Privacy Concerns
Generally, employers should not disclose the identity of people diagnosed with or suspected of having Coronavirus. For example, both Nova Scotia, and Newfoundland and Labrador labour standards legislation requires an employer to maintain confidentiality with respect to all matters that come to the employer's knowledge in relation to an employee's leave. Employers may not disclose that information, except with the employee's written consent, and only to employees who require the information to carry out their duties, or as required by law.4 Additionally, an employer subject to the Federal Personal Information Protection and Electronic Documents Act (PIPEDA) must protect the personal information of their employees where such information can be used to identify the individual.
Identifying information about an individual's physical or mental health is further protected by legislation in all four Atlantic Canadian provinces.5 While most employers will not be custodians of personal health information as defined in the respective legislation, employers should be aware of the confidential nature of this information. Practically speaking, protecting information about employees who have or may have COVID-19 avoids adverse treatment of the infected employee in the workplace, but may in certain cases be necessary to address outbreak concerns.
f) Employment Insurance
The Federal Employment Insurance Act provides unemployment benefits to qualified insured persons. This legislation defines insured person as an individual who is or has been employed in insurable employment. An insured person qualifies if the person:
- has had an interruption of earnings from employment; and
- has had during their qualifying period a prescribed minimum number hours of insurable employment in relation to the regional rate of unemployment that applies to the person.
The maximum number of weeks for which a benefit period may be paid is 15 for a prescribed illness, injury or quarantine. However, the claimant must prove that they were unable to work because of a prescribed illness injury or quarantine. As a result, a medical certificate completed by a medical professional attesting to the claimant's inability to work is required. Normally, persons applying for EI would have to endure a mandatory one-week waiting period before receiving benefits under the Act. However, the Federal Government recently announced that it would be temporarily waiving this waiting period to reduce the burden on those affected by the virus.
The Federal Government also announced enhancements Canada's Work-Sharing Program, which is a program designed to help employers avoid layoffs when there is a temporary reduction in the normal level of business activity due to circumstances beyond the control of the employer. The amount of time an employer or employee may qualify for Work-Sharing benefits has been doubled from 38 to 76 weeks.
The Government of Canada is recommending that employers be flexible in applying sick leave policies, and to separate and immediately send sick employees home or encourage them to stay home if experiencing respiratory illness symptoms. Operational and occupational health and safety committees should be meeting regularly during this time in order to monitor risk levels and to implement plans should a partial or mass quarantine be necessary. Maximizing employees' ability to work from home is a good starting point.
Employers should also consider limiting travel, particularly to affected areas, and encouraging alternatives to travel such as telecommuting and video conferencing. Where travel is contemplated, employers should review relevant Travel Advisories prior to finalizing such plans. The World Health Organization recommends that employers avoid sending employees with pre-existing medical conditions and elderly workers on travel assignments at this time. Employers should fully inform employees of steps to take and contact protocols if they become ill while travelling.
The emergence of COVID-19 in Canada engages legislative, policy and contractual obligations owed by employers to employees during a pandemic. Employers are required to prioritize employee health and safety and set clear procedures to address increasing risk of illness in the workplace. Collective agreements, policy and individual employment contracts should be consulted before making employment decisions.
Employers should also be prepared to handle several types of leave by employees and understand the impact such leave could have on their business operations. Regardless of the final impact COVID-19 may have on an individual business, proper planning before an outbreak may assist in minimizing business disruption. Cox & Palmer would be pleased to assist employers as they address COVID-19 issues in their workplace.
1. In NS, sections 43 to 44; in NB, section 19 to 23; in NL, sections 45 to 47; and in PEI, sections 28 to 29.
2. Unpaid leave in NS is 3 days per year; in NB it is 5 days of unpaid sick leave per year and 3 days of unpaid family responsibility leave per year; in NL it is 7 days per year for both sick and family leave; and in PEI, it is 3 days per year and an additional 1 day paid after 5 years of employment for sick leave and 3 days per year for family leave.
3.See: NS, section 10; NB, section 7; NL, section 2(1)(o); and PEI, section 6.
4. NS, section 58F; NL, section 6.1.
5. In NS under the Personal Health Information Act; in NB under the Personal Health Information Privacy and Access Act; in NL under the Personal Health Information Act; and in PEI under the Health Information Act.
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.