By now, your email inbox has been inundated with messages regarding COVID-19. Based on inquiries we have received, we share the following thoughts. This is an evolving situation, and so these considerations are current as of writing this email. Since finalizing this summary, Prime Minister Trudeau has advised this afternoon that all Canadians remain home, if possible. As a result, all thoughts below must be considered in light of this most recent request. For specific advice about your particular circumstances, we encourage you to reach out to us.
*Please note: These guidelines are with respect to Ontario non-union, provincially regulated workplaces. This email discusses general information and should not be considered legal advice.
- Set the Tone.These are unusual circumstances for your employees. We encourage all employers to have open, honest, and respectful communications with their employees, as many employees are concerned and look to their employers for guidance. Encouraging an open dialogue focused on safety for your employees and their families promotes a relationship of trust, which will benefit the workplace long after this crisis ends. All of us have to look beyond our immediate needs to also consider the general community. For instance, asking employees to line up for medical notes may not be the best use of our medical services, which could quite literally be saving lives. We have to instead focus on the public health goal of slowing down and reducing the spread of the virus. Communication with your employees during this time could emphasize the employer's commitment to being a good corporate citizen.
- Stress the Basics. While it is trite, public health officials continue to stress the need for good hygiene. If employers remain open, employers should provide supplies and opportunity to encourage regular handwashing (e.g. more frequent breaks), disinfect workspaces (e.g. provide wipes for equipment if used by many workers), and provide healthcare products like Kleenexes and hand sanitizer (if you are lucky enough to find some!). Guidelines on reducing personal contact (e.g. no handshaking) and social distancing (2 meters) should be circulated, stressed, and enforced. Ramp up routine cleaning of the premises, including workstations and surfaces, with a recommended disinfectant, is encouraged. React to concerns or emergencies – e.g. timely sanitation of a potentially contaminated workstation would boost employee confidence.
- Reconsider the way you operate.Over the next few weeks, many employers may decide to close down voluntarily, will need to reduce the workforce for business reasons, or will have to close due to an infected employee/visitor or government order. Review the essence of your business for emergency planning to see what technology can offer and what you can do without. Encourage telephone conferences and Skype meetings instead of face-to-face. Cancel travel requirements. Allow flexibility to work from home or in other remote locations. Permit commuting during non-peak hours. Consider job sharing – more below. Be creative.
- Monitor Illness.Actively encourage sick employees to call in and stay home. Comfort employees who feel their job will be in jeopardy. There are a number of job-protected leaves for workers in Ontario under the Employment Standards Act that may apply. Attached is a summary of existing leaves.
The Ontario government announced today, March 16, 2020, that it is preparing legislation that will provide job-protected leave for employees
1) under medical investigation, supervision, or treatment for COVID-19;
2) acting in accordance with public health information/direction or an order under the Health Protection and Promotion Act;
The Ontario government is not scheduled to sit again until at least March 23, 2020, so there is uncertainty about how and when this will be passed, but the leave will be retroactive to January 23, 2020, and will remain in effect until further notice. The Human Rights Code also prohibits employers from terminating employees for any "disability". While it is uncertain if COVID-19 would qualify as a disability, there would certainly be much sympathy for any infected employee who lost their job. For employees who come to work sick because they are not self-aware, circulate communications about the signs and symptoms as an important reminder. [https://www.canada.ca/en/publichealth/services/diseases/coronavirus-disease-covid-19.html or https://www.ontario.ca/page/2019-novel-coronavirus] For employees who can't afford to stay home, providing paid sick days may give the employee financial security to stay home and reduce the spread. At this point, there is no statutory requirement for an employer to pay an employee who is not at work because they are sick or are quarantined. Employers must review existing employment contracts, sick leave policies, past practices, and disability policies to see if employees are eligible. Perhaps also consider the "long game": meaning that it may, in fact, be cheaper to pay someone sick leave than to have them bring COVID-19 to the workplace, which could result in Public Health closing down your entire workplace. We understand that this is an expensive undertaking and may not be available in all workplaces when business is slowing and sales may be softening. Still, it may be in the employer's best interests to either extend the number of paid sick days allowed, allow a special allotment of sick days for this particular crisis, or at least work with employees who are in need in this crisis.
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