This article is sponsored by Samfiru Tumarkin LLP.
With the coronavirus epidemic making daily news headlines here in Canada in recent weeks, we’ve received lots of questions from both employers and employees on how to manage the threat of infectious diseases in the workplace. It’s an important issue and one that requires consideration from both perspectives.
As a starting point, it is important to note that all employers in Ontario, and across Canada, have an obligation to keep their workplaces healthy and safe. In Ontario, the legislation on this is the Occupational Health and Safety Act, RSO 1990. This statute sets out the rights and duties of all parties in the workplace, as well as the procedures for dealing with workplace hazards.
Infectious disease control in the workplace
Concerning the spread of infectious diseases, workplaces such as hospitals, retirement homes, long-term care facilities and, in the case of the coronavirus, employers whose personnel travel regularly to Asia, should all be on high alert, as the risk of transmission of this infectious disease is greater. Employers must ensure that they are doing all they can to minimize the risk of an outbreak.
How can employers provide support during the coronavirus outbreak?
- Providing information, instructions and supervision to employees to protect their health and safety (e.g. instructing employees to regularly wash their hands);
- Taking reasonable precautions appropriate in the circumstances to protect employees (e.g. restricting travel to affected countries)
- Providing required equipment and/or protective devices in circumstances where infection is possible.
What are an employee’s obligations in the workplace during the coronavirus outbreak?
- Report any hazards of which the employee is aware
- Use personal protective equipment as required by their employer.
- Inform their employer if they are showing symptoms and seek medical attention
These are just a few examples of some of the precautions that should be taken by employers and employees when dealing with the threat of infectious diseases in the workplace.
Unreasonable precautions for employers
While employers must take all reasonable precautions to ensure that their workplaces remain safe, that does not necessarily mean that they have the unfettered discretion to do as they please in response to a potential workplace hazard.
For example, an employer cannot force an employee to remain home without pay simply because they have recently travelled to an affected country, or because they display flu-like symptoms. Unreasonably denying an employee an opportunity to work and earn an income may be considered a constructive dismissal, i.e. a breach of the terms of employment, resulting in that employee’s termination and severance pay obligations on the part of the employer.
Nor can an employer reasonably restrict an employee’s personal travel plans in such circumstances. While it is certainly within an employer’s purview to restrict business travel to affected areas to ensure the safety of its employees, it cannot go beyond those boundaries into an employee’s personal life to dictate what that employee can and cannot do on their own time.
Employers must also tread carefully when taking precautions such as excluding employees from the workplace. Measures should only be taken based on evidence of infection or exposure to others who have been infected.
Employers should only exclude from the workplace employees who have travelled to affected areas and who display symptoms or have otherwise been exposed to others who have been infected. During the SARS outbreak in Toronto in 2003, some employers attempted to exclude from the workplace employees of Asian origin. Exclusions not based on evidence, but directed toward a specific race or nationality, would likely constitute discrimination, which is prohibited under Canadian human rights legislation.
What should an employee who is infected with the coronavirus do?
Employees struck by the coronavirus, or any other illness or injury for that matter, can and should take a medical leave of absence until they are cleared by their treating physician to return to work.
In the case of medical leave, employees may be able to use sick days, access short-term disability benefits or employment insurance (EI) sickness benefits in order to ensure they continue to receive an income during their leave. Employers are under no legal obligation to continue to pay employees who have taken a medical leave of absence.
Employee workplace rights during an outbreak
For those employees concerned about a potential outbreak in their workplace, and where such concern is reasonably warranted, it is important to discuss these concerns with your employer.
Employees may legally refuse to attend work if they feel their health is being put at risk. In addition, an employer cannot reprimand or retaliate against an employee who fears that their safety has been compromised in the workplace.
Regardless of the industry or risk of exposure to infectious disease, it may be wise for employers to remind employees – both management and non-management alike – of their health and safety obligations in the workplace. After all, a safe and healthy workplace is a productive one.
If you have any questions regarding health and safety in the workplace, medical leaves of absence, termination of employment, or any other employment law matters, please visit our website or contact us at 1-855-821-5900.
Alex Lucifero leads Samfiru Tumarkin LLP’s Ottawa office as its managing partner, providing advice to both employers and employees on all aspects of labour and employment law, including wrongful dismissal, severance packages, terminations and workplace harassment.