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Sick with worry: An employer’s guide to managing coronavirus concerns in the workplace

coronavirus

Coronavirus – by now, that’s a term we’ve all heard. The 2019 Novel Coronavirus is a new and contagious respiratory virus characterized by fever, coughing, and shortness of breath. Coronavirus symptoms are common to a lot of viral illnesses, and in many respects, a mild coronavirus infection can look a lot like a bad cold or flu. However, in some cases, coronavirus can lead to significant and life-threatening complications.

The emergence of the coronavirus has, understandably, caused some public concern. For those of us who remember SARS (which was nearly 20 years ago, already), this feeling of unease may be familiar. Fortunately, so far, Canada has done a better job containing transmission and the risk to Canadians remains generally low (see here for up-to-date information).

That said, it’s a rapidly evolving situation. There has recently been a significant uptick of cases including the probable first instance of community spread in the United States. This blog mainly focuses on employee anxiety associated with the virus, rather than dealing with active coronavirus in the workplace. If the situation changes and there is active contagion in Ontario, employers may experience much more significant disruption to their workplaces than what we have outlined below.

What should employers be doing?

It goes without saying that employees with suspected or probable coronavirus infections need to follow all public health and safety protocols, and employers should never interfere with that.

But for the vast majority of us, the main impact of coronavirus is anxiety… Employers may already be feeling the impacts of a nervous workforce. This may include increased sick days and absences, refusals to work, or discriminatory behaviour in the workplace.

Sick days and absences

Until coronavirus fears are quelled, employees may be more anxious than usual about spreading or catching respiratory illnesses. They may be more inclined to stay home when ill, or they may be reluctant to share space with sick colleagues. 

As a first step, employers are encouraged to review their own workplace illness policies and procedures and familiarize themselves with their obligations under the Employment Standards Act (“ESA”). Under the ESA, employees are entitled to a variety of sick leaves or caregiver leaves, in the event they or their family member(s) become ill. Most run-of-the-mill respiratory illnesses will entitle employees to up to three days of unpaid leave (per year) to care for themselves or a sick family member. In cases of more severe illness, longer leaves may become available. The duration and conditions of the applicable ESA leave will depend on each employee’s individual circumstances, and we recommend that employers who receive this type of request consult with HR and/or an employment lawyer for tailored advice. More information about statutory leaves of absence can be found here.

As of today, employers can require medical notes from employees who take sick days – but practically speaking, many sick employees will just drag themselves to work instead of going to a doctor to get the note. Given the anxiety around coronavirus, and the heightened demand on medical resources, employers might consider loosening this type of requirement in the near term.

Employers should also consider encouraging sick employees to work from home if possible, or stay home and rest as needed. If the sick day policy usually includes a cap on sick days, this is a good time to consider temporarily lifting it.

Of course, employers should continue tracking absences as usual and addressing excessive absenteeism where appropriate.

Refusal to work   

Nobody loves sharing a cubicle with a coughing colleague, but usually most of us grit our teeth and deal with it. These days, employees may be less inclined to sit through the coughing. What happens if an employee refuses to work near a colleague with a respiratory infection?

Employees are entitled to refuse work where it is likely to endanger themselves or another worker (with some exceptions for healthcare workers and first responders, see here). Whenever an employee refuses work because of safety concerns, under the Occupational Health and Safety Act (“OHSA”), the employer should immediately investigate in the presence of the worker and a health and safety representative or joint health and safety committee member, and attempt to resolve the situation. If the worker continues to have a reasonable safety concern even after the investigation is finished, then provincial inspectors must be contacted and the employee is entitled to continue to refuse the work pending the inspector’s decision.

This is potentially a sticky situation for employers, who need to consider carefully whether discrimination – most likely on the basis of race or disability – might be at play in this type of work refusal. It’s important that employers don’t inadvertently reinforce discriminatory behaviour while complying with their duties under OHSA.

Refusal to fly for work

Given that most Canadian coronavirus cases have some connection to air travel, employees may be particularly reluctant to travel by air for work at the moment. Consider whether air travel can be avoided until the situation is better understood. Technology can substitute for a number of in-person functions.

If air travel is necessary, employers can help manage employee concerns by complying with travel advisories (here) and staying up-to-date on the status of new coronavirus cases and outbreaks as they develop. For informational purposes, it may also be useful to check the travel advisories of other countries such as the United States, the U.K., New Zealand and Australia, in case they differ from the Government of Canada recommendations. Employers are legally obligated to provide safe working conditions, and employees should not be expected to disobey travel advisories or travel to areas with active outbreaks.

Refusals to travel for work due to safety concerns should be treated like other refusals to work under OHSA, and investigated accordingly.

Discrimination

Employers have a legal obligation to ensure that their workplaces are free from discrimination, including discrimination by other employees and customers/clients. Stereotyping or treating an employee differently on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, or disability is not allowed. Employers should be vigilant against any workplace discrimination or harassment that might be occurring, including in connection with coronavirus-related concerns.

If discrimination becomes apparent, employers should not sit back and wait for a formal complaint to be filed – employers are required to ensure a discrimination-free workplace at all times. More information about employers’ obligations under the Ontario Human Rights Code can be found here.

PH tips

As of the date of publication of this blog, coronavirus isn’t a widespread threat to Canadian employees – but that doesn’t mean employees won’t have concerns. For now, employers may be best served by taking a balanced view that respects employees’ concerns while maintaining a realistic view about the risk.

At this stage, we recommend that Canadian employers:

  • Review and consider their workplace illness policies and procedures;
  • Familiarize themselves with employees’ entitlements to various leaves under the ESA; 
  • Consider temporarily lifting caps on sick days, and/or requirements to obtain medical notes to encourage sick employees to stay home;
  • Listen carefully to employees’ concerns about coronavirus if approached;
  • Proactively assess the potential for coronavirus-related hazards in the workplace;
  • Investigate safety concerns where necessary, including when an employee refuses work for safety reasons (remember those OHSA duties);
  • Be vigilant against discrimination or harassment in the workplace; and
  • Stay up-to-date on the situation and continuously re-evaluate whether workplace policies and procedures are appropriately protecting workers and managing risk.

By Janet Lunau

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Piccolo Heath LLP

Prominent Canadian lawyers Patrizia Piccolo and Jennifer Heath have come together as Piccolo Heath LLP, Canada’s newest employment law firm. With more than 30 years combined expertise, the firm was founded with the purpose of delivering outstanding legal counsel and dynamic, client-focused service. Piccolo Heath LLP is focused on guiding clients through the legal landscape to determine the best solutions to their unique issues. The firm is well-versed in current employment-related case law and statutes, but is also highly sensitive to the practical impact of the law on both employers and employees. Read more.
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