With nineteen cases of the COVID-19 now having been confirmed in Ontario and the possibility that more cases may be diagnosed in the coming days and weeks (worldwide cases have already exceed 100,000 infected), it is important for you to know your responsibilities as an employer in helping protect the health of everyone in your workplace.
For your guidance, we have outlined for you the ongoing rights and responsibilities of employers and employees under various employment-related statutes as they pertain to this issue.
Announcements and Declarations from Provincial and Federal Governments
These guidelines are relevant to the situation as it is today (March 6, 2020). There has been no declaration of emergency, however there is the possibility of future health declarations that may have an effect on labour and employment issues.
For instance, if the COVID-19 outbreak rises to public health emergency levels in Ontario, the Lieutenant Governor in Council or the Premier could declare an emergency under the Emergency Management and Civil Protection Act (the "EMCPA"), which would have an impact on employees who are unable to work because they are subject to an order under the EMCPA or the Health Protection and Promotion Act.
In earlier situations, such as the 2003 SARS outbreak, Ontario passed the SARS Assistance and Recovery Strategy Act, which provided employees with unpaid leave, in addition to existing Ontario Employment Standards Act ("ESA") leaves, for medical investigation, treatment or quarantine of themselves or a family member.
Also, during the 2003 SARS outbreak, Human Resources Development Canada (now Employment and Social Development Canada, "ESDC") announced amendments to the Regulations to facilitate access to Employment Insurance Act ("EI") sickness benefits for employees affected by SARS.
In the interests of simplicity and clarity, we have not addressed hypothetical declarations that may be made regarding COVID-19, but will keep you abreast of any and all relevant changes as they occur.
While this article outlines general guidelines, we would encourage you to contact us should you encounter specific situations in your workplace or with your employees. Each situation is unique and the procedure in one instance may not necessarily be appropriate in another.
As always, if you have any questions about this or any other employment related matter, please contact us.
For the latest COVID-19 information:
Health Canada: https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html
Public Health Ontario: https://www.publichealthontario.ca/en/diseases-and-conditions/infectious-diseases/respiratory-diseases/novel-coronavirus
Your obligations as an employer
Both employers and employees are responsible for ensuring the safety of their workplace. For most employers in Ontario, this mandate is governed by the Occupational Health and Safety Act.
This is a good time to remind your employees to wash hands frequently and to be aware of, but not overreact to, news in the traditional media, social media and "on the street ".
Consider posting additional handwashing signs and providing hand sanitizer, as well as circulating email reminders about cold and flu season.
You should also make efforts to be aware of employee behaviour and general health. If an employee has recently returned from a trip to a location affected by COVID-19 during (or just prior to) an outbreak, consider whether the employee ought to be sent home for isolation.
Regarding the timeline of the outbreak, on December 31 the government of China informed the World Health Organization of several cases of pneumonia in the city of Wuhan and on January 7 confirmed that they had identified 2019-nCoV, now known as COVID-19. Today, with reports of the virus significantly hitting the Middle East, Europe, and now, North America, it is absolutely essential that employers develop a COVID-19 action plan.
If an employee has symptoms of COVID-19 or has been in direct contact with someone who has symptoms of COVID-19 they should be denied access to work, sent home for isolation and advised to see a doctor.
Health Canada advises that COVID-19 symptoms are usually mild to moderate and can include: runny nose, headache, cough, sore throat, fever and a general feeling of being unwell.
While these symptoms are also associated with other ailments, even including the common cold, it is important at this time to be aware of employees who exhibit these symptoms, as it may effect relations with other workers and with you as the employer.
Employee rights and employer obligations
Employees who believe that a condition in the workplace is likely to endanger their health or safety can refuse to work under the Occupational Health and Safety Act.
You may be advised by one of your employees that they are concerned about the possibility of contracting COVID-19 in the workplace and may, in some cases, refuse to work.
An employer cannot threaten to discipline an employee who refuses to work on this basis and, must comply with employer obligations under applicable occupational health and safety legislation.
The employer must investigate the situation immediately and attempt to work out a satisfactory resolution with the employee.
If that is not possible, the employer must notify a Ministry of Labour inspector or officer, as required by provincial legislation.
Discrimination and harassment
Because COVID-19 was first discovered in Wuhan, China, some people may assume that a person from the Asian-Canadian community either has COVID-19 or associates with others affected by COVID-19.
Employers are under an obligation to keep the workplace free from discrimination and harassment. Provincial human rights legislation prohibits discrimination or harassment in employment on the basis of certain protected grounds, including ancestry, disability, race, ethnicity and place of origin.
Employers should note that barring someone from a place of employment because of race, ethnicity, or place of origin (perceived or otherwise) is contrary to human rights legislation.
Employees have a right to expect that their personal information, including health status, is kept confidential and is not disclosed throughout the workplace. On the other hand, employers are under legal obligations to ensure that the workplace is safe. The question of whether to reveal the names of employees who have symptoms of COVID-19 or who have been isolated or quarantined is a difficult one to answer, and will involve a balancing of two competing interests.
In the case that an employee or family member is placed in isolation or under quarantine:
As mentioned above, we suggest you contact us if any employee or person related to an employee is placed in isolation or quarantine. Each situation is different.
The regulations are clear in the case of an employee contracting COVID-19 or isolation/quarantine of an employee or family member:
Ontario employees who have accumulated at least two (2) weeks of service with an employer and are unable to attend work for COVID-19-related reasons (including quarantine) are entitled to take unpaid sick leave under the Ontario ESA for up to three (3) days.
Additionally, employees may qualify for up to three (3) days of family responsibility leave to care for an ill family member.
COVID-19 should fall within the parameters of an employer's sick leave or short-term disability policies. However, employees who are quarantined without COVID-19 related symptoms may not necessarily be eligible for benefits, depending upon the wording of the specific plan.
As a more general guideline, in order to protect your workplace from the spread of COVID-19, employees should not feel that they will be penalized for failing to come to work. An unpaid leave may cause employees to attend work, which could result in potential contamination of your workforce. Some employees may request the right to work from home. Employers are not obligated to grant such entitlement, and many positions do not easily transition. For those positions that lend themselves to work-from-home protocols, initiation should be left to employer discretion, keeping in mind business efficacy, and the impact upon human resources. Some employers may not wish to invoke work-from-home protocols unless a state of emergency is called. We recommend careful consideration of such approach and, the advance creation of a written HR/management reaction plan, covering roles and responsibilities, appointment of contact persons, types of communication and, events sequencing, in the case of such emergencies.
Employers should ensure that policies on various sick and caregiver leaves are readily available to employees, and that employees understand they will not be penalized for absenteeism related to controlling the spread of COVID-19. If in doubt about the applicability of a leave, employers should exercise good judgment in encouraging symptomatic employees to stay home, rather than risk contamination of the workplace.
Recommended strategies for employers to use now:
- Actively encourage sick employees to stay home
Employees who have symptoms of acute respiratory illness are recommended to stay home and not come to work until they are free of fever (100.4 ° F [37.8 ° C] or greater using an oral thermometer), signs of a fever, and any other symptoms for at least 24 hours, without the use of fever-reducing or other symptom-altering medicines (e.g. cough suppressants). Employees should notify their supervisor and stay home if they are sick.
Ensure that your sick leave policies are flexible and consistent with public health guidance and that employees are aware of these policies.
Communicate with companies that provide your business with contract/temporary employees about the importance of sick employees staying home and encourage them to develop non-punitive leave policies.
Unless there are clear reasons to question the authenticity of an illness claim, do not require a healthcare provider's note for employees who are sick with acute respiratory illness to validate their illness or to return to work, as healthcare provider offices and medical facilities may be extremely busy and not able to provide such documentation in a timely way.
Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than usual.
- Separate sick employees
CDC recommends that employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately. Sick employees should cover their noses and mouths with a tissue when coughing or sneezing (or an elbow or shoulder if no tissue is available).
- Emphasize: staying home when sick, respiratory etiquette and hand hygiene
Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
Provide tissues and no-touch disposal receptacles for use by employees.
Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
Visit the coughing and sneezing etiquette and clean hands webpage for more information.
- Perform routine environmental cleaning
Routinely clean all frequently touched surfaces in the workplace, such as workstations, countertops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
No additional disinfection beyond routine cleaning is recommended at this time.
Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.
- Advise employees to take certain steps before traveling
Check the governmental travel notices for the latest guidance and recommendations for each country to which you will travel.
Advise employees to check themselves for symptoms of acute respiratory illness before starting travel and, notify their supervisor and stay home if they are sick.
Ensure employees who become sick while traveling or on temporary assignment understand that they should notify their supervisor and should promptly call a healthcare provider for advice if needed.
If outside Canada, sick employees should follow your company's policy for obtaining medical care or contact a healthcare provider or overseas medical assistance company to assist them with finding an appropriate healthcare provider in that country.
Additional measures in response to currently occurring sporadic importations of the COVID-19
Employees who are well but who have a sick family member at home with COVID-19 should notify their supervisor and refer to Health Canada guidance on how to deal with their potential exposure.
If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace, but maintain confidentiality as required by the Human Rights Code and privacy legislation. Employees exposed to a co-worker with confirmed COVID-19, should refer to Heath Canada guidelines on how to conduct a risk assessment of their potential exposure.
Planning for a possible COVID-19 outbreak in Ontario
The severity of COVID-19 is unknown at this time. If there is evidence of a COVID-19 outbreak in Canada., employers should plan to be able to respond in a flexible way to varying levels of severity and, be prepared to refine their business response plans as needed. For the general public, such as workers in non-healthcare settings and where it is unlikely that work tasks create an increased risk of exposures to COVID-19, the immediate health risk from COVID-19 is considered low. That may change.
All employers need to consider how best to decrease the spread of acute respiratory illness and lower the impact of COVID-19 in their workplace in the event of an outbreak in Ontario. They should identify and communicate their objectives, which may include one or more of the following: (a) reducing transmission among staff, (b) protecting people who are at higher risk for adverse health complications, (c) maintaining business operations, and (d) minimizing adverse effects on other entities in their supply chains. Some of the key considerations when making decisions on appropriate responses are:
a) Disease severity (i.e., number of people who are sick, hospitalization and death rates) in the community where the business is located.
b) Impact of disease on employees that are vulnerable and may be at higher risk for COVID-19 adverse health complications. Inform employees that some people may be at higher risk for severe illness, such as older adults and those with chronic medical conditions.
Prepare for possible increased numbers of absences due to illness in employees and their family members and, dismissals of early childhood programs and K-12 schools due to high levels of absenteeism or illness.
Employers should plan to monitor and respond to absenteeism at the workplace. Implement plans to continue your essential business functions in case you experience higher than usual absenteeism.
Cross-train personnel to perform essential functions so that the workplace is able to operate even if key staff members are absent.
Assess your essential functions and the reliance that others and the community have on your services or products. Be prepared to change your business practices if needed to maintain critical operations (e.g., identify alternative suppliers, prioritize customers, or temporarily suspend some of your operations if needed).
Employers with more than one business location are encouraged to provide local managers with the authority to take appropriate actions outlined in their business infectious disease outbreak response plan based on the condition in each locality.
Coordination with provincial health officials is strongly encouraged for all businesses so that timely and accurate information can guide appropriate responses in each location where their operations reside. Since the intensity of an outbreak may differ according to geographic location, local health officials will be issuing guidance specific to their communities.
Important considerations for creating an infectious disease outbreak response plan
All employers should be ready to implement strategies to protect their workforce from COVID-19 while ensuring continuity of operations. During a COVID-19 outbreak, all sick employees should stay home and away from the workplace, respiratory etiquette and hand hygiene should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly.
a) Ensure the plan is flexible and involve their employees in developing and reviewing the plan.
b) Conduct a focused discussion or exercise using the plan, to determine ahead of time whether the plan has gaps or problems that need to be corrected.
c) Share your plan with employees and explain which human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them.
d) Share best practices with other businesses in your communities (especially those in your supply chain), chambers of commerce, and associations to improve community response efforts.
We hope you have found this information helpful.
We will be monitoring the situation in regard to any announcements or declarations from any level of government or any health authority that will have an impact on employer responsibilities or implications for labour laws and regulations.
Please feel free to contact us at your convenience, if you have any questions.