March 12, 2020
The havoc that COVID-19 (a.k.a. “novel coronavirus” or SARS-CoV-2) is wreaking around the globe – and around workplaces – is about to worsen: on March 11, 2020, the World Health Organization (WHO) officially characterized COVID-19 a pandemic. The Canadian government has currently assessed the COVID-19 risk level in Canada as “low”, but it’s a moving target: it also notes “this could change rapidly” and has activated the Federal/Provincial/Territorial Public Health Response Plan for Biological Events to ensure a coordinated response across Canada.
This isn’t the first time Canadians – and employers – have coped with widespread disease outbreaks (remember SARS in 2003, H1N1 / Swine Flu in 2009 and MERS in 2012). It’s likely time for employers with a business continuity plan or a pandemic & disease outbreak preparedness or response policy to implement it. To help all employers cope with the workplace implications of COVID-19, here are the answers to 19 legal questions.
1. What are our legal obligations to our employees in these circumstances?
In the circumstances of the COVID-19 pandemic, employers must comply with a number of legal obligations:
OHS. Occupational health and safety (OHS) laws are a critical source of employers’ legal obligations in these circumstances. Every Canadian province has OHS laws applicable to provincially-regulated employers, and there’s a federal law applicable to federally-regulated workplaces. OHS laws set minimum health and safety obligations for workplace parties. Employers’ duties vary somewhat depending on the applicable law, but all impose an overarching duty on employers to exercise every reasonable precaution to provide a safe work environment. Employers that fail to exercise due diligence to fulfil this OHS duty risk liability – both corporate liability and personal liability of its directors, officers and supervisors.
Employment Standards. Employment standards (sometimes called labour standards) laws could also come into play. Every Canadian province has employment standards laws applicable to provincially-regulated employers, and there’s a federal law applicable to federally-regulated workplaces, setting out minimum standards for employment, including a minimum amount of unpaid sick leave to which employees are entitled.
Human Rights. Human rights laws could be engaged. Every Canadian province has human rights laws applicable to provincially-regulated employers, and there’s a federal law applicable to federally-regulated workplaces, that: prohibit employers from discriminating against employees on the basis of protected personal characteristics, including disability, country of origin and ethnicity; and impose on employers a duty to accommodate an employee: to take steps to offset the discriminatory impact of a workplace rule, policy, requirement or practice by adjusting, revising or eliminating it to the point of undue hardship.
Privacy Laws. Privacy laws are also likely to be engaged. Canada has a patchwork of privacy laws regulating how an employer can collect, use and disclose personal information – such as personal health or travel information – about its employees.
Contracts. The terms of an individual employment contract and/or of a collective agreement(s) could also come into play in a specific case.
2. Are we required to provide information about COVID-19 to our employees?
OHS laws require employers to provide employees with information on workplace hazards and risks. Normally this means information related to job-specific hazards and training, but in certain circumstances it could also include information related to the risk of communicable diseases – like COVID-19. So inform employees and keep them updated about COVID-19 (the risks, symptoms and tips to avoid contracting and spreading it) based on information provided by a reliable and credible source, like the Government of Canada. Since COVID-19 is a rapidly moving target, consider assigning someone to staying on top of government advisories.
3. Are we required to put any safeguards in place to protect employees from COVID-19?
OHS laws also require employers to put reasonable controls in place to safeguard against workplace hazards. What’s “reasonable” will largely depend on the nature of the workplace, but could include, for example:
4. Should we stop all non-essential business travel or non-essential business gatherings?
Employers generally have the authority to direct employees not to undertake business travel. In the current circumstances, it’s reasonable to stop all non-essential business travel to at-risk destinations, and to review and carefully evaluate all upcoming business travel and assess whether to delay or cancel it as the situation evolves. Relevant factors could include the specific destination, the mode of travel and the number of people involved. Similarly, you have the authority to cancel large business gatherings you are hosting, and to direct employees not to attend external business gatherings (such as conferences). The Canadian government hasn’t to date mandated such social distancing measures, but it’s wise to carefully evaluate upcoming gatherings and assess whether to cancel the event or attendance based on relevant factors as things develop.
5. Can we tell an employee they can’t undertake personal travel at all, or to certain destinations?
No – but you can and should put them on notice that if they’re travelling to an at-risk country, you might not permit them to attend work when they return, and you may require them to take unpaid leave.
6. An employee has just returned (or is about to) from a vacation; should we let them come back to work?
If you have reasonable grounds to believe an employee might have or is at risk of contracting COVID-19 based on recent travel to a country the Canadian government has assessed as “at-risk” for exposure to COVID-19 or recent contact with someone who has recently been to an “at-risk” country, you can request or direct them not to come to work. Whether it’s a direction not to report or a request, however, consider the feasibility of working out a temporary remote working arrangement with the employee if they are able and willing to work, the nature of their work allows it, and it’s consistent with your needs. This could encourage them to comply, and achieve the objective of isolating them for the protection of others in the workplace or for their own protection.
7. An employee has been off work with the “flu” and wishes to return to work; should we let them?
Subject to any applicable policies or agreements, if you have reasonable grounds to suspect an employee might have COVID-19, which would include self-reporting flu-like symptoms, you could require that they provide some form of medical clearance before allowing them to come back to work.
8. Can we require an employee to use their vacation time if we have reasonable grounds to suspect they have contracted COVID-19?
Employers generally have the right to schedule employees off on vacation, though in some cases this right could be abridged by policy or contract. Depending on what the applicable policies and contracts say, you might be able to schedule an employee off on vacation if circumstances warrant doing so, such as if they have used up their sick time. Also consider applying your vacation policy with greater leniency, for example by abridging the normal advance time period to make vacation requests.
9. If we direct an employee not to report to work because of COVID-19, are we required to pay them?
Maybe. If you’ve been able to implement a remote work arrangement for the employee, they’ll continue to work and to be paid. If not, whether you’re legally obligated to pay an employee during a mandatory leave of absence when the employee is otherwise willing to work depends largely on the applicable policies, past practices, and employment contracts or collective agreements in place, so review these carefully. However, be mindful that failure to pay the employee could in some circumstances carry the risk of claims of constructive dismissal or of discrimination based on disability or another characteristic protected by human rights laws.
10. What if the employee refuses to stay out of the workplace?
An employee who is directed not to report to work for valid health and safety reasons but refuses could be subject to discipline; but an employee “asked” not to report to work (such as where the employer doesn’t have reasonable grounds to put the employee off work) can refuse.
11. If an employee asks for permission not to report to work because they’re afraid to risk getting infected with COVID-19, are we required to grant it?
There could be circumstances in which you might be required to grant the request. For example:
Unsafe Conditions. OHS laws give employees the right to refuse to work when they reasonably believe the workplace conditions are unsafe. In such a case, the employer is obligated to investigate and address the safety issue, and to pay the employee for any time they would have normally worked while the employer investigates and addresses the issue.
Accommodation. If the employee’s afraid because they’re particularly vulnerable to contracting COVID-19 or to its effects because of a disability or other personal characteristic protected by human rights laws, the request might trigger the employer’s duty to accommodate the employee. Permitting absenteeism could be an appropriate accommodation in these circumstances. However, if it’s feasible, so could a remote working arrangement or other reasonable accommodation.
If you aren’t required to grant the request, and agreeing to a remote working arrangement isn’t desirable or feasible, you must either confirm the employee is required to attend work (with or without discipline for non-attendance) or permit the employee to be absent.
12. Can we require employees to provide us with personal information?
That depends on the information and the purpose. Whether and which privacy law(s) applies depends on whether your organization is federally or provincially regulated, whether it’s a private or a public sector organization, and where it’s located. Generally, however, all limit you to collecting only the personal information that’s reasonably necessary (versus merely desirable) in the circumstances and to keeping it only for as long as is reasonably necessary for those purposes. Even if no privacy law applies, best practices consistent with these limitations are emerging. Within those limits, in the context of the COVID-19 pandemic, it seems reasonably necessary to obtain certain personal information about employees for the purpose of ascertaining the level of risk they pose to others in the workplace and to implement the appropriate steps to satisfy your OHS obligations.
13. What kind of personal travel information can we ask employees for?
Whether, where and when an employee has travelled, for both personal and business reasons seems reasonably necessary, but collect this information in a way that limits it to what’s reasonably necessary. For example, ask employees to advise you if they’ve travelled to a country the Canadian government has assessed as “at-risk” for exposure to COVID-19 within a reasonable time frame, rather than asking them to provide a list of every place to which they’ve travelled and when.
14. What kind of personal health information can we ask employees for?
Even in the context of a response to COVID-19 or other pandemics, there are likely very few circumstances in which you require an employee’s detailed health information. Personal health information is highly sensitive and inherently private, though that privacy isn’t absolute.
15. Can – or must – we disclose any employee personal information to anyone else?
It depends who’s asking. Generally, privacy laws and best practices obligate employers to keep any personal information about employees (or others) confidential and to only disclose it to a third party when required to do so by law. In the context of a pandemic, provincial chief medical or health officers (CMO) have certain powers to compel information, not just about an infected (or potentially infected) employee but any employee for the purpose of contact tracing. For example, if a CMO demands you disclose the name and contact details about any infected employee, the CMO might then require you to disclose the names and contact details of all employees that work at the same site, even if not infected or symptomatic, for the purpose of tracking contact with the infected employee. If you receive a request from a CMO to disclose any personal employee information ask the CMO to put the request in writing that specifies the authority by which they are requesting you to disclose the information.
16. What if an employee calls in sick with COVID-19?
Treat them just like any employee who calls in sick – but make adjustments to accommodate the nature of the COVID-19 outbreak.
Policy. Follow your usual sick / absenteeism policies. However, courts and tribunals will likely expect employers to exercise a greater degree of leniency when employees call in sick with COVID-19, such as not requiring them to provide a “sick note” until they’re ready to return to work given what appears to be the current prevailing advice that infected people self-isolate.
Sick Leave Laws. Also comply with employment standards (sometimes called labour standards) law sick leave requirements. Every Canadian province has employment standards laws applicable to provincially-regulated employers, and there’s a federal law applicable to federally-regulated workplaces, setting out a minimum amount of unpaid sick leave to which employees are entitled. Some such laws also grant emergency leave that could apply if a COVID-19 outbreak results in a provincial or federal government order that prevents an employee from performing their employment duties.
OHS Laws. Occupational health and safety laws also impose a duty on workers to protect others – as well as themselves – in the workplace. This duty typically applies to activities in, not mere presence at, the workplace. However, it could extend to preventative measures in the context of a developing pandemic, and compliance with safety measures and precautionary steps up to and including staying away from work if an employee has a reasonable basis to believe they either are infected or have been in contact with someone infected, with COVID-19.
17. If an employee calls in sick with COVID-19, do we have to pay them?
Maybe: follow your normal procedure for employees who call in sick in accordance with applicable policies and agreements. However, employment standards laws do not require employers to provide employees with paid leave for either sickness or emergency leave.
18. What if an employee can’t get to work on time, or at all, because of public transportation delays or shutdowns?
Employers are entitled to expect regular ongoing attendance from their employees, and it’s the employees’ responsibility to get there. Follow your usual attendance policies, but again, exercise a greater degree of leniency in these circumstances.
19. What if we have to close our business (or part of it) temporarily for some reason related to COVID-19?
Depending on the severity and duration of the COVID-19 outbreak, some businesses might struggle to continue operations, such as because of workforce reductions (for example, ill or quarantined employees) or reduced (or no) access to supplies or inventory. It’s conceivable some will decide to temporarily suspend some (or even all) operations as a result, or reduce their workforce. However, employment standards laws set out criteria for “mass” or “group” layoffs or terminations (a specified number of employees within a specified time frame), and minimum notice periods and notification requirements. If you foresee this as a possibility, be sure to check and comply with the applicable employment standards law, since all vary somewhat, and may include exceptions for unexpected circumstances. In addition, review any applicable employment contracts (or collective agreements) for terms that could affect implementation of a temporary reduction or closure.
Interested in learning more? Click here to read more about the latest questions being asked by employers.
Please contact your McInnes Cooper lawyer or any member of our Labour & Employment Law Team @ McInnes Cooper to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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