Many employers are starting to ask questions about the legal framework within which they can prepare, manage and address developments and potential issues caused by the spread of the Coronavirus.
What is Coronavirus?
According to the World Health Organization (WHO), Coronaviruses are a large family of viruses found in both animals and humans. Some infect people and are known to cause illness ranging from the common cold to more severe diseases such as Middle East Respiratory Syndrome (MERS) and Severe Acute Respiratory Syndrome (SARS).
A novel coronavirus (CoV) is a new strain of coronavirus that has not been previously identified in humans. The new, or “novel” coronavirus, now called 2019-nCoV, had not been previously detected before the outbreak was reported in Wuhan, China in December 2019.
As of January 30, 2020, the World Health Organization declared the Coronavirus outbreak a public health emergency of international concern.
Officials from the Public Health Agency of Canada have stated that the risk of a major outbreak in Canada remains low, but has encouraged extra precautionary measures. Three cases in Ontario and one in British Columbia have been confirmed, and many others are under observation.
Despite travel bans in China, the virus has spread further. Health authorities now believe infected people can spread the virus before they begin to show symptoms, increasing the likelihood that they will pass the illness to others. With an incubation period of at least two weeks, symptoms associated with the virus include fever, cough and trouble breathing. There are a handful of human coronaviruses that are known to be deadly.
You can read more on the Novel coronavirus (2019-nCoV) on the WHO website at https://www.who.int/emergencies/diseases/novel-coronavirus-2019.
Therefore, the questions from employers regarding managing and addressing developments caused by the spread of Novel coronavirus (2019-nCoV) are legitimate and reasonable. Employers need to be prepared to respond respectfully, quickly and appropriately as matters continue to develop.
How should employers prepare and respond?
Many employment and other laws must be considered when looking at this issue, and they include employment/labour standards legislation, occupational health and safety legislation, human rights legislation, privacy legislation and any declared emergency management policies from government agencies.
We examine employers preparation and responses on the lines of the following issues:
1. Health and safety issues and pandemic planning
Under occupational health and safety legislation across Canada, workers have the right to working conditions that do not pose a risk of serious harm; to receive information and training about workplace hazards; and to exercise their rights without retaliation, among others. Also, due diligence is commonly addressed in health and safety legislation under the “general duty clause,” which places a duty on employers to take all reasonable precautions to prevent injuries or accidents in the workplace. The general duty clause also applies to all situations that are not addressed elsewhere in the occupational health and safety legislation.
To that end, employers should continue to monitor the development of the Coronavirus and analyze whether employees could be at actual risk of exposure in their workplace and work-related business and events.
Employers should have contingencies in place for dealing with the impact of a health emergency on the continued operation of their business. Employers should have in place, among other things, what steps to take to prevent its spread. Implementing travel restrictions for employees who are travelling abroad and guidelines on how to interact with workers who have recently returned from China or Wuhan, China, the epicentre of the epidemic, or have come into close contact with family members or friends who have returned from China or Wuhan, China.
At a minimum, this may involve consideration of the core aspects of the business which must be carried on, identifying aspects of the operation that could be temporarily closed, identifying internal and external dependencies and identifying plans for employees. Any contingency planning will be unique to the business.
That is where an established set of pandemic policies come into place. While not written to address Coronavirus in particular, these policies should provide steps employers can take to address public health crises of any kind like the Coronavirus or Influenza that spreads and kills about 3,000 Canadians every year.
Employers should, therefore, ensure that they are aware of their obligations to provide a safe working environment and the steps that they will take should the virus arrive on their doorstep.
These pandemic policies include:
- Pandemic planning
- Fitness to work
- Restricted access
- Work from home
- Emergency leave
- Contact control and monitoring during a Pandemic
- Health workplace in a pandemic
- Pandemic crisis support
- Hazardous duty incentive during a pandemic
Given that employers have a legal obligation to provide a safe workplace for employees, employers, besides establishing pandemic policies and procedures, should take some basic steps to help prevent the spread of disease and keep employees healthy. Employers should:
- Closely monitor the situation and coordinate with provincial or territorial public health agencies and the Public Health Agency of Canada.
- Educate employees on the signs and symptoms of the Coronavirus and the precautions that can be taken to minimize the risk of contracting the virus. At this time, the Public Health Agency of Canada believes symptoms appear within fourteen days after exposure, with some infected individuals showing little to no signs. Employers should communicate with employees to assure them that they are addressing the situation, are taking steps to ensure a safe workplace and are actively monitoring and responding to developments as they occur.
- Provide hand sanitizer and handwashing stations, facial tissues and to a certain extent, flu masks. A more specialized mask, known as an N95 respirator, can protect against the 2019-nCoV. The respirator is thicker than a surgical mask, but health officials do not recommend it for public use, at least not at this point.
- Encourage employees to wash hands with soap and water for at least 20 seconds.
- Clean and disinfect frequently-touched objects and surfaces (door handles, elevator buttons, shared telephones, etc.).
- Maintain good and clean ventilation.
- Minimize unnecessary meetings and visitors, and assess the risks of exposure by identifying workers who may have recently travelled to, come in direct contact with, or are scheduled to go to Wuhan City, and the Hubei Province in China or other high-risk destinations for business or leisure. In some limited circumstances, employers could have a legitimate interest in trying to limit leisure travel, particularly where the travel could harm business operations. However, a better approach at present would be to ensure that employees who are travelling understand the potential risks to themselves and others should they visit a high-risk area.
- Implement business travel guidelines and procedures for approvals for travel. Instructing staff to cancel or postpone non-critical travel as the world tries to get a handle on the outbreak. Sending an employee to an at-risk area could result in an employment claim should things go wrong; careful consideration of travel plans, insurance coverage and alternatives available is the prudent thing to do.
- Implement or review workplace emergency response protocols, revise as necessary and re-issue to employees.
- Having a policy where people with flu symptoms are not allowed access to the workplace – this includes workers, contractors and visitors.
- Where there is reason to believe that an employee is at risk (such as having travelled to an infected region during the period of infection or come into close contact with someone who has been in the infected region) it could be appropriate to instruct the employee to work from home until further clarity is gained. However, employers should avoid blanket decisions and consider the merits of each case. See the human rights discussion below.
- Allow sick employees to work from home or take leave as appropriate. In certain circumstances, an employer may demand that employees produce a medical certificate confirming they are cleared to work before allowing them to return to the workplace. See the human rights and statutory leave discussions below.
- Under occupational health and safety legislation, most employees have the right to refuse work if a condition of the workplace “is likely to endanger” their health or safety. Employees encountering the Coronavirus in the workplace (or who fear that they may encounter it) may seek to exercise their right to refuse work in this regard. In some cases, an employee may wish to refuse a travel assignment to Wuhan, China or other high-risk places. For example, a flight attendant could use their right to refuse dangerous work on flights to mainland China. As an employer, you would have to assess these situations carefully on a case by case basis and follow the right to refuse work process established in law, and may need to consider postponing such business travel until the public health situation has improved. Global Affairs Canada continues to advise against non-essential travel to the province of Hubei, China, including the cities of Wuhan, Huanggang and Ezhou. Employers cannot threaten to discipline an employee exercising a work refusal. When faced with a work refusal, the employer should immediately investigate in the presence of a health and safety representative or joint health and safety committee member, consider this right to refuse work and, failing resolution with the employee, notify a Ministry of Labour inspector. Certain employees are exempt and cannot use a right to refuse work because of the nature of their employment, e.g., police officers, firefighters, correctional officers, paramedics and hospital workers.
- Workers compensation legislation provides compensation for personal injury or illness arising out of and in the course of employment. Therefore, workers infected with the Coronavirus in the course of employment may be entitled to services and benefits. Healthcare workers made these types of claims during the 2003 outbreak of SARS.
2. Human rights issues
The definition of disability under human rights legislation across Canada includes any degree of physical or mental disability. The law also requires that accommodation be provided to an employee with a disability. If a pandemic occurs, being infected with the Coronavirus may amount to a disability under human rights legislation across Canada that must be accommodated. Employers may have to provide a leave of absence or modified work to help the employee receive treatment and recover while protecting the employee’s job.
Human rights legislation across Canada also provides that everyone has a right to equal treatment in employment. Coronavirus impacts persons of all ethnicities; singling out employees because of their ethnicity for testing, leave or other virus-related actions could lead to discrimination charges. All policies should be enforced in a uniform and consistent way.
Therefore, it is also important to consider individual employee rights and to guard against panic, discrimination and harassing behaviours or unnecessary actions such as testing. A crisis can bring out shameful aspects of crowd behaviour, including xenophobia and other forms of discrimination. Employers should balance the duty of care owed to their entire staff against the rights and obligations of individual employees. Considerate handling of a global crisis like this could reinforce an organization’s values and boost a healthy employee relations climate. Therefore, employers should emphasise their anti-discrimination and anti-harassment policies and remind employees of dignity and respect when interacting with each other.
Employers must also keep in mind human rights considerations in their responses and contingency plans. Employers must ensure that screening procedures, requests to stay away from the workplace and other practices do not run afoul of applicable laws.
For example, human rights considerations may arise where an employer requires an employee who recently visited high-risk areas to remain off work, where the health authorities have issued no quarantine orders or directives at this time. Moreover, in the absence of public health directives requiring certain individuals to undergo quarantine, there is an increased risk of employment litigation (e.g., grievances, human rights complaints, constructive or wrongful dismissal claims) if employees are sent home without pay or required to use up their vacation or other accrued lieu time.
However, individuals who have recently visited Wuhan, China have a heightened risk of contracting the Coronavirus. It is likely reasonable for you to ask employees who have recently returned from the area of the outbreak to remain away from the workplace for a while until it can be safely determined that the employee does not have the Coronavirus. The same can be said if they were in close contact with family members who have been in the area of the outbreak.
If you require an employee to remain at home, you should continue to pay the employee’s wages and benefits during that time as well as make work-from-home arrangements with them.
3. Privacy considerations
Employers should also consider the management of medical information when planning for a potential pandemic or outbreak. Medical information an employer will collect from an employee and how that information will be used, disclosed and kept secure is included under this issue. Clear direction to employees outlining why certain medical information is being collected will help employees understand why it is necessary and reasonable for the employer to collect, use and disclose their medical information in response to the situation.
Employers also need to consider what information they are entitled to require from employees and how they can use and disclose this information. Employers must consider what information they need to protect the health and safety of their workforce, and how they can achieve this protection in as minimally intrusive a manner as possible. Employers should use and disclose the health information on a “need to know” basis only, or as required by public health officials. Employers must carefully examine what information needs to be used or disclosed under the circumstances to fulfil their obligations to all of their employees, as well as to those to whom the employer provides services.
4. Statutory leaves of absence
Employers should reinforce sick leave policies and encourage employees to stay home if they are feeling ill, to the extent feasible. This policy should be a common and ongoing practice especially during flu season.
Employers should ensure that employees are aware of their entitlements to leave and other benefits that will help to avoid disruption in the workplace and minimize exposure to liability.
Across Canada, employees are entitled to leaves of absence for their sickness, or to care for a family member under employment/labour standards legislation. The leaves may vary by jurisdiction and are in addition to the human rights duty to accommodate obligation. If the coronavirus situation worsens and the government declares an emergency, employees will use more of these leaves to care for themselves or a family member.
In Ontario and Nova Scotia, during the SARS crisis, the government implemented declared emergency leave for such situations. In those two provinces, employees would be entitled to declared emergency leave.
As a best practice, employers may also wish to extend company sick leave, vacation or other policies to help employees who may be subject to quarantine orders or who are otherwise unable to work. They should also consider work-from-home arrangements where feasible. In doing so, employers must be mindful of exposure to human rights or other liabilities.
In certain circumstances, an employer may demand that employees produce a medical certificate to justify a leave or to confirm they are cleared to work before allowing them to return to the workplace. But also in this instance, be mindful of exposure to human rights and privacy liabilities.
Need pandemic policies?
Employers should have in place pandemic and emergency preparedness policies to deal with situations like the influenza outbreak or a coronavirus type of virus outbreak. This proactive approach for employers is to always avoid any business disruptions or mishandling of a situation and to protect the health and safety of workers.
Human Resources PolicyPro has a set of nine pandemic policies as well as an Emergencies and Business Interruptions policy to help employers do just that. To access these policies go to My Account. If not a subscriber, take a 30-day free trial.