Employers owe legal obligations to their clients, customers, the public, and of course their employees. At the same time, employers also have certain rights that are closely related to their responsibilities. The coronavirus has led employers to seek information regarding their rights and responsibilities in this exceptional climate. As always, employers should #ASKCCPartners!
Here are a few questions that our lawyers have been answering recently in light of public concern over COVID-19:
- Can we require our employees
to advise us if they have COVID-19?
During this outbreak it is reasonable to want to be proactive and keep your workplace safe and healthy. But employers have to remember that while their duties include keeping a disease-free workplace through proper due diligence, they do not get to use a public health crisis as an occasion to play doctor, and make assumptions about employees' health.
Employers have options beyond requiring disclosure of a coronavirus diagnosis – which is good because normally employers are not legally permitted to even ask for a diagnosis. Consider advising employees to disclose whether they have flu-like or other symptoms of the virus (including fever, cough, and difficulty breathing), and that in light of the COVID-19 outbreak they will be required to provide medical information in appropriate circumstances.
If a doctor's note is reasonable in the circumstance, make sure that you obtain objective medical information from an employee's treating physician, and request only the information you need to maintain a healthy workplace, accommodate the employee as necessary, or prepare for their absence. For example, an employee exhibiting symptoms of the virus can be asked for a doctor to confirm in writing whether they are able to perform their work safely and without undue risk of infecting co-workers, customers, members of the public, etc.
An employee's doctor will not hesitate to advise an employer that they ought to be off of work for a period of time if that is their opinion.
Finally, employees should know that reporting an actual or potential COVID-19 case will not result in any negative or adverse treatment by the employer. That could be viewed as an illegal reprisal and land an employer in serious hot water.
- Can we require our employees
to advise us if they have travelled to an affected area, or been
around someone with COVID-19?
Yes. It is recommended that employers require employees or others as appropriate to disclose whether they have travelled to an "affected area" as designated by the Government of Canada. At the time of writing the affected areas are: China (Mainland), Hong Kong, Iran, Italy, Japan, Singapore, and South Korea.
If disclosure is made, the employer can require the employee to provide information from a doctor confirming whether they are able to perform their work safely and without undue risk of infecting co-workers, customers, members of the public, etc. You still should not ask for a diagnosis, and in all likelihood you will not need one. Some doctors are currently advising their patients to self-quarantine as a precaution upon return from an affected area.
- Is an employee who is off
work due to COVID-19 entitled to be paid?
The answer to this question depends on your workplace policies, and the employment contract or collective agreement. If the employee is entitled to paid leave for illness, or if they elect to use paid vacation days, then they should be paid while away from work. Otherwise, the leaves provided by the Employment Standards Act, 2000 in Ontario protect the employee's job, but do not require an employer to make payment. Consider further whether the employee has access to short-term disability benefits, and remember that they may be able to access Employment Insurance benefits.
- Does WSIB cover
The Workplace Safety and Insurance Board receives infection disease claims, and benefits may be available to an employee who contracts coronavirus as a result of work-related exposure. Employers should consider whether they really require employees to conduct travel to "affected areas", or whether alternate arrangements can and should be made in the current environment.
- What are our
Each case turns on its specific facts and circumstances, but employers have options with how they will operate during the COVID-19 outbreak. Some options to consider including the following:
- Design and circulate an infectious-disease policy and enforce it;
- Encourage healthy habits in the workplace, including hand-washing.Provide hand-sanitizer;
- Limit work-related travel and prepare alternate arrangements for conducting business;
- Implement or extend your work from home policy;
- Know what medical information to ask for, and be consistent among all employees.Do not request different or more information based on an employee's racial or ethnic background;
- Ensure that all medical information received is handled confidentially.Ensure that medical information is stored separately and securely, and not disclosed unless absolutely necessary;
- Be prepared to respond to work refusals by understanding employees' rights to refuse unsafe work, and employers' responsibilities to investigate with a joint health and safety member (if applicable);
- Limit visitors to the workplace.
We can look to past public health incidents such as SARS and the H1N1 virus for guidance in responding to the issues that are arising out of COVID-19. There is no perfect one-size-fits-all answer to any of the above questions, so employers should be mindful of first principles respecting workplace health and safety, privacy, and accommodation. The lawyers at CCPartners have the experience to help you navigate the current climate, and tailor an appropriate strategy to your unique circumstances.
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.