Hope and determination now cautiously lead as Ontario and other parts of Canada gradually reopen. Also inspiring is the significant progress that many employers have made in rethinking and modifying historical working methods to reduce the spread of COVID-19 regionally, nationally and globally.
However, events in recent days have reminded us all that we are still in stormy waters. Recently, the World Health Organization reported the largest single-day increase in coronavirus cases in history. Here in Canada, while some cities and regions have reported a slowed pace of newly confirmed cases, recent statistics show there is still need for continued vigilance.
In this context, there is a good chance that over the summer, and beyond, many Ontario employers will be faced with both confirmed and alleged cases of COVID-19 in their workplaces. It is therefore important to be aware of certain legal obligations and best practices to manage this reality, which are reviewed below.
In Ontario, both the Occupational Health and Safety Act (OHSA) and the Workplace Safety and Insurance Act, 1997 (WSIA) contain provisions respecting an employer's duty to report actual and alleged cases of workplace-caused illnesses. Similar obligations that may exist under collective agreements, employment contracts or employer policies should also be kept in mind.
For more information about reporting obligations under the WSIA, please click here.
As for the OHSA, section 52(2) of the Act reads:
If an employer is advised by or on behalf of a worker that the worker has an occupational illness or that a claim in respect of an occupational illness has been filed with the Workplace Safety and Insurance Board by or on behalf of the worker, the employer shall give notice in writing, within four days of being so advised, to a Director, to the committee or a health and safety representative and to the trade union, if any, containing such information and particulars as are prescribed.
"Occupational illness" is defined under s. 1(1) of the OHSA as follows:
"occupational illness" means a condition that results from exposure in a workplace to a physical, chemical or biological agent to the extent that the normal physiological mechanisms are affected and the health of the worker is impaired thereby and includes an occupational disease for which a worker is entitled to benefits under the Workplace Safety and Insurance Act, 1997
As can be seen, the reporting obligation under the OHSA arises from the mere fact that an employer is advised that (i) a worker has an "occupational illness" or (ii) that a claim has been filed at the WSIB "in respect of an occupational illness."
The OHSA reporting obligation may therefore arise even if an employer has doubts that a given claim is in fact work related. It suffices that the employer is advised that a work-related COVID-19 exposure is in play or that a claim to that effect has been filed at the WSIB.
On the other hand, if there is no allegation that a given case of COVID-19 is work related, subject to our comments below, then there is generally no reporting obligation under the OHSA. For example, if an employee were to call in and advise that he or she had COVID-19, but did not say he or she contracted the disease from work or would be filing a WSIB claim, this would likely not engage reporting obligations under the OHSA.
If an OHSA reporting obligation is engaged, the employer must give a written notice within four days to (i) the "Director" (i.e., the Ministry of Labour, Training and Skills Development), (ii) the joint health and safety committee or to a health and safety representative and (iii) the trade union, if any, that is in a bargaining relationship with the employer.
As to the required contents of the notice, this is set out in a number of industry-specific regulations under the OHSA (i.e., construction, industrial establishments, mines and mining plants, healthcare and residential facilities, diving operations and oil and gas). For more information as to the notice's required contents, and the address, fax or email to which to send the notice to the director, please click here. When filling out a notice of occupational illness under the OHSA, it is important to stick to strictly factual statements and the minimal information required to be reported. Avoid opinions, particularly opinions ascribing fault or theories of causation.
Apart from the specific reporting obligations under the OHSA and WSIA discussed above, as noted, there may be contractual reporting obligations, the scope of which will depend on the wording of the applicable collective agreement or contract. Further, it is conceivable that in certain situations, an employer may have a duty to make certain disclosures under s. 25(2)(h) of the OHSA, which provides that employers have a general duty to "take every precaution reasonable in the circumstances for the protection of a worker." Given that potential contractual reporting obligations, and general duties under the OHSA, are necessarily highly fact dependent, a complete discussion of these potential obligations is beyond the scope of this article.
However, it is important to consider such potential requirements when an employer may not have a specific reporting obligation but the facts of a situation suggest that limited disclosures may be required to comply with these general duties. In such cases it is very important to also consider, and weigh, the potential application of one or more sources of privacy law. For example, some municipal and broader public sector employers may be subject to the provisions of the Municipal Freedom of Information and Protection of Privacy Act.
For others, who may not be subject to such legislation, the potential liabilities of the common law tort of "intrusion upon seclusion" or arbitral case law touching on employee privacy rights must be considered. In Ontario, employers are generally required to disclose only the minimum information that is reasonably necessary to address any reporting obligations under the OHSA and WSIA. It will therefore be important for employers to strike a balance between protecting employee privacy rights and ensuring that reporting obligations are met.
Apart from the potential reporting obligations discussed above, and related privacy considerations, there are also a number of best practices that employers should also keep in mind, which are reviewed below.
Checklist for managing known and potential cases of COVID-19 in the workplace
If an employer learns of a positive COVID-19 case in the workplace, or a potential case, steps to minimize the risks of transmission, and the physical and emotional impact on employees, should be taken. Further, these steps should be taken in a way that minimizes potential liabilities. These could include one or more of the following:
- If the employee self-reported his or her status, thank the infected employee for voluntarily providing the information.
- To mitigate any privacy-related concerns, ensure that any collected personal information of the infected employee is kept safely. In particular, all COVID-19-related employee personal information should be kept separately from the employee's personnel file with access restricted to a limited pool of management and human resources professionals, and on a need-to-know basis.
- In general, records of testing should be maintained only as long as necessary to comply with any statutory requirements or until the limitation period expires on any potential claim. In addition, any records kept should be (i) limited only to the bare minimum of information necessary; (ii) kept securely and away from employees' general files to limit access; and (iii) destroyed securely when no longer needed.
- Tell the infected employee not to come in to the physical workplace and not to interact with any other employees. The infected employee should follow all direction given by a qualified healthcare professional, and should not return to work until so advised by a qualified healthcare professional that it is safe to do so, or if he or she is symptom free after 14 days of self-isolation or as otherwise directed by public health authorities.
- Make reasonable efforts to determine who may have been in contact with the infected employee in the 14 days prior to the diagnosis.
- To the extent reasonably possible, notify these potentially affected individuals that someone at the workplace has tested positive for COVID-19 and they may have been exposed.
- To protect the privacy of the infected employee, when notifying persons who may have been exposed to COVID-19, employers should make reasonable efforts not to disclose personal information that might identify the infected individual, unless the employee's express consent is given in that regard.
- That said, employers may provide sufficient details to allow the potentially exposed individual to ascertain the date or time period of potential exposure.
- Require that potentially affected employees not report to work for at least 14 days from the last time they had contact with the employee who tested positive for COVID-19. It should be recalled that, on average, it takes between five and six days from the time of infection for symptoms to show. However, it can take up to 14 days.
- Tell the potentially affected individuals to self-isolate immediately, self-monitor for symptoms of COVID-19, and seek medical attention if they display any severe symptoms of COVID-19.
- Consider providing potentially exposed individuals with resources for self-isolation and monitoring for symptoms of COVID-19. For example, this can include government-owned tools, like Ontario's COVID-19 self-assessment, Health Canada's COVID-19 self-assessment tool, and the Canada COVID-19 App developed in partnership with Health Canada.
- Provide the infected and potentially exposed employees with information on leaves of absence and benefits they may be entitled to in the circumstances. In addition to job-protected leaves under the Employment Standards Act 2000, leave entitlements may also be included in an employment contract or collective agreement.
- Since this news may cause some people stress and anxiety, consider providing employees with mental health resources and support.
- Check in with the employees affected by the positive case of COVID-19 to ensure they are doing well.
- Assess what other steps may be appropriate at the workplace to minimize the risk of transmission. For example, it may in some circumstances be appropriate to close the entire facility so it can be disinfected. If the employee only had access to a particular area of a workplace, it might make sense to only close that area so it can be disinfected. Employers may also consider additional cleaning and disinfecting of surfaces that frequently come in contact with employees.
- Continue to monitor guidance and orders issued by government health and safety authorities. As the COVID 19 pandemic has evolved, so has the expert advice given. Earlier in the pandemic wearing cloth face masks was generally recommended but not obligatory. At the time of writing, a number of local orders have now been issued in some Ontario regions, requiring the use of face masks in commercial establishments. It is important for employers to stay abreast of such developments.
- Seek legal advice as appropriate.
We are now a few months into the COVID-19 pandemic. Although there have been a number of developments suggesting that we are on the road to reopening the province, there are still causes for concern. It is still as important as ever to maintain a defensive posture to ensure against further spread of the coronavirus in Ontario workplaces.
As workplaces progressively reopen, there will be cases of COVID-19 that employers will have to manage, both confirmed cases and those where there may be some doubt but where an employee maintains that they contracted COVID-19 in the workplace. In either case, employers will need to quickly determine what reporting obligations they may have and will have to comply with those in a timely fashion. They will also have to keep in mind a number of the above noted points, some legal, some practical, as to how to generally manage such cases.
Although the foregoing information will assist employers in approaching and grappling with the principal issues raised, as noted, the situation is evolving and employers must continue to educate themselves to keep up with changing norms and guidance.
Remaining vigilant, flexible and informed as Ontario reopens will not only contribute to the fight against COVID-19, it will help employers minimize legal risks.
Originally published July 8, 2020.
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