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Originally posted on March 3rd, 2020 by Paul D. McLean* at Global HR Lawyers – In A Flash – Matthews Dinsdale.

The following provides general guidance to employers in dealing with the potential impacts of COVID-19 on the workplace. All should appreciate that this is a fluid situation and we will continue to update our clients as matters change. For specific issues, please speak with your Mathews Dinsdale lawyer.

Where can employers get regular updates on COVID-19?

The Government of Canada’s Public Health Agency

Infection Prevention and Control Canada (ipac)

Is COVID-19 in Canada?

As of March 3, 2020, COVID-19 has been confirmed in three provinces: British Columbia, Ontario and Quebec.

While the Public Health Agency of Canada expects those numbers to increase, without sustained human-to-human transmission, most Canadian employees are not at significant risk of infection.

Can an employer restrict international travel?

As of March 3, 2020, the Government of Canada has posted travel health notices for non-essential travel to areas of China, Hong Kong, Iran, Japan, Northern Italy, Singapore and South Korea due to the outbreak of COVID-19.

Based on these advisories, employers should restrict business travel to these areas. Should employees travel to these regions for person reasons, they should be advised that their ability to return to the workplace will be assessed upon their return to Canada.

Can an employer stop employees who travelled in an area affected by COVID-19 from returning to work?

Depending on where they have travelled and the nature of the employer’s business, an employer may assess risks in the circumstances, and could restrict an employee from immediately returning to the workplace. For example, an employer who operates a senior’s community will have a dramatically different assessment than an employer operating a warehouse.

Prior to an employee returning to work, they should be asked to confirm that they have no symptoms of illness. Again, depending on the workplace and the risk associated with potential COVID-19 exposure, the employee may be asked to self-isolate even absent symptoms depending on where they have travelled.

Patients with confirmed COVID-19 infection have reportedly had mild to severe respiratory illness with symptoms of fever, cough, and shortness of breath. If the employee has these symptoms, they should seek medical attention and should not be permitted to return to work until they are confirmed by medical testing to either not be suffering from COVID-19 or that they no longer carry the virus.

If an employer holds an employee without symptoms out of work, is there a requirement to still compensate the employee?

This will depend on the circumstances, including where the employee has travelled from, the nature of the specific workplace, alternatives available (i.e. working from home) and any potential collective agreement requirements. While each situation will have to be assessed individually, there will be circumstances where holding an employee out of service, without pay, may be deemed reasonable.

What if an employee has COVID-19 and cannot work?

Where an employee contracts COVID-19 and is unable to work, an employer must grant any applicable legislative leave to the employee, in addition to meeting any sick leave obligations outlined in employment agreements or collective agreements.

What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?

Employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under occupational health and safety legislation. Where an employee has a reasonable basis to believe that there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety, the employee may be able to refuse to attend work or perform certain duties.

In the event of a work refusal, the employer must respond in accordance with occupational health and safety legislation, which response will include an investigation into the concerns and, if appropriate, adopting measures to eliminate or reduce the workplace danger. This investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. No reprisal for properly exercising a health and safety right may occur.

Can an employer fire an employee if they contract COVID19?

No. Employers may not terminate an employee or otherwise discriminate against an employee due to physical disability (which includes certain illnesses) under human rights legislation.

What if an employer needs to replace sick employees on a temporary basis to operate?

An employer can hire employees on a temporary basis. An employer may also ask healthy employees to work additional hours, provided the employer is complying with legislative provisions regarding overtime and excessive hours of work.

The time to prepare for such a contingency is now: employers should be assessing how many employees they require to operate effectively and what will happen if a large number of employees are unable to attend work.

Can an employer force employees to work from home?

Whether or not an employer can direct all or a portion of its workforce to work from home will depend on the reasons for the request. For example, if there has been potential exposure to COVID-19 in the workplace, it may be reasonable to request certain employee self-isolate and work from home for at least a 14 day period.

Can an employer close their business due to COVID-19 outbreak?

An employer must ensure a safe working environment. Depending on the situation, it may be necessary to close a business location. An employer’s obligation for providing notice or pay in lieu of notice to employees will be governed by the specific facts of each case.

Do employers have to buy personal protective equipment for employees?

Employers have a duty to provide a safe working environment. If employees run the risk of becoming infected at work, the employer must provide personal protective equipment.

Previous Mathews Dinsdale articles on COVID-19

Workplace Pandemic Plans: What Employers Should Know

Novel Coronavirus: What Employers Need to Know

If you have any questions about this topic or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer.

Originally posted on February 27, 2020 by Paul D. McLean* at Global HR Lawyers – In A Flash – Matthews Dinsdale.

With COVID-19 appearing prominently in news headlines these days, both federal and provincial governments are encouraging preparedness. What is an employer’s responsibility to employees in the event of wide-scale infection? What steps can an employer take in advance to ensure preparedness? While specific guidelines and responsibilities exist for those working in health care, an employer in any industry can benefit from having a workplace pandemic plan in place.

A pandemic is an epidemic crossing international boundaries. While the decision that a pandemic exists is made by the WHO, a high incidence of infection in Canada or a region of Canada could still lead to the need for extraordinary measures. In such circumstances, the responsible authority would be the Chief Public Health Officer and/or local authorities in affected provinces or territories.

In the event COVID19 spreads widely within Canada, employers have the same legal duties under occupational health and safety, employment standards and human rights legislation as they would with any other illness impacting employees. One of the primary considerations will be whether employees can reasonably refuse to attend work for safety reasons if and when COVID19 is present in the workplace.

Employers may also be subject to additional duties in the event that an outbreak of illness rises to the level of “emergency”. Every jurisdiction in Canada has legislation in place for emergency measures and some specifically contemplate public health emergencies (e.g. Ontario’s Health Protection and Promotion Act and Alberta’s Public Health Act). B.C.’s Public Health Act confers upon the provincial health officer special emergency powers regarding the reporting of personal information, which would apply in the event an emergency is declared. During an emergency, those powers would apply notwithstanding any applicable privacy legislation.

A comprehensive workplace pandemic plan should include the following elements, tailored to the particular needs of your organization, and developed in consultation with the joint occupational health and safety committee or worker’s representative, and union representative, where appropriate:

Leadership
Ensure your organization is prepared to address the issue. Designate key employees who will manage the employer’s response to any pandemic. Make an actual plan to respond to the risk of a pandemic impacting the workplace.

Communication
Consider what types of information you will need to obtain in the event of a pandemic and the information you will need to disseminate. Identify in advance where you will be able to find up-to-date and reliable information about a disease outbreak, including its current status, symptoms and prevention strategies, and where to receive medical care. Develop a strategy for communicating the necessary information to employees in a format that is easily accessible from home.

Risk Management and Containment
Consider workplace strategies for reducing the spread of illness. Ensure basic supplies such as hand-hygiene products, tissues and receptacles are available in all locations.Consider policies that would be implemented in the event of a pandemic to limit the opportunities for disease transmission, such as employee “work from home” strategies, staggering shift starts and breaks to reduce the number of people in the workplace at a time, and arranging work stations to maintain distance between individuals.

Continuity
Consider the potential impact of a pandemic on your business. Is demand for your products or services likely to increase or decrease? Identify the essential employees to meet the change in demand. Consider how a pandemic might affect your ability to obtain other critical inputs (e.g. shipping of raw materials). What if your employees are subject to a quarantine? Does the business need to operate every day? Can it sustain a shutdown?Employee absenteeism is likely to be one of the biggest concerns. Employees may be sick themselves, may need leave to care for sick family members, or may wish to remain home due to fear of contracting illness. Predictions for absenteeism during a local outbreak vary by industry, but a general recommendation for employers is to plan for an absenteeism rate of between 20 to 25% during a peak two-week period of an outbreak in a specific area, with lower absenteeism in the weeks before and after.Refer to occupational health and safety legislation, employment standards legislation, as well as your organization’s own policies and collective agreement (if applicable), to determine what types of leave are available to employees, including the issue of work refusals.

Recovery
The return to “business as usual” will likely take place gradually as the pandemic draws to an end. Consider phases of recovery in your workplace pandemic plan. Which aspects of your business are likely to return to normal first?

While this article provides the basics of developing a workplace pandemic plan, the World Health Organization has just published specific guidance on how to prevent the spread of COVID19 in the workplace and encourages employers to adopt these measures presently.

Additional planning tools are available to employers from federal and provincial governments in Canada. Once you and your team have developed your plan, set dates for its review. Consider testing some aspects of the plan as needed.

Though workplace pandemic plans, by design, contemplate the worst scenarios of disease outbreaks, employers can play a role in preventing the everyday spread of illness by encouraging good health practices among employees. For example, posters and employee handouts can be used for education and awareness at the workplace. Even in the absence of pandemic or severe outbreak, employee illness can have an impact on an employer’s business and operations. Efforts at preventing the spread of illness at the workplace may benefit employers before any extraordinary measures are required.