COVID-19 and the workplace

What do Canadian employers and employees do in the COVID-19 outbreak?

COVID-19 and the workplace – Just before this article was written, the Prime Minister of Canada announced that due to COVID-19 Canada’s borders will be closing to most tourists, and that all Canadians abroad must return home and self-isolate.  This is just the latest in a historic event that is developing on an hourly basis.  In recent days, all professional sports have been suspended; the Prime Minister himself has self-isolated because his wife tested positive for the virus; and Canada’s Chief Public Health Officer has recommended that all gatherings of over 50 people be avoided.  In some places in Canada, bars and restaurants and other establishments have been recently ordered to close or stay open in a limited capacity only.

In these uncertain times, many employees and employers may be wondering about their rights and obligations in the workplace . Below, we outline many of the legal issues that can arise with COVID-19 and the workplace.

COVID-19 and the workplace – Occupational health and safety

Under provincial legislation, employers have a duty to ensure the health and safety of workers. In BC, for example, section 115 of the Workers Compensation Act states that every employer must ensure the health safe safety for all workers.  Part of this duty includes remedying any workplace conditions that are hazardous to the health and safety of the employer’s workers. This duty also includes ensuring the employer’s workers are made aware of all known or reasonably foreseeable health or safety hazards to which they are exposed by their work, and providing the information, instruction, training and supervision necessary to ensure their health and safety and the safety of other workers at the workplace.

Importantly, all of these obligations apply to the dangers arising in BC due to COVID-19 and the workplace.

At the time this article was written, WorkSafeBC states on its website that employers should “consider limiting worker participation in large social gatherings (e.g., conferences, meetings)” and “travel that involves spending time in large groups of people (e.g., air travel) where practicable.”  WorkSafeBC asks that employers also “consider whether workers can work remotely (e.g., work at home).”  WorkSafeBC also recommends that employers increase workplace cleaning, provide the necessary supplies, and reinforce personal hygiene messages to workers.

Although this appears to be the standard set by WorkSafeBC for workplaces from an occupational health and safety perspective, Labour Rights Law recommends employers take a much more aggressive approach to protect its employees, its businesses, and society at large.

COVID-19 is infectious, and just one employee showing up sick to work with the virus and directly contacting employees could mean a quarantine of all the employer’s employees for up to 14 days.  Worse still, this could mean a creating a potentially mortal risk to older employees, employees with underlying medical conditions, or employees’ family members with these characteristics.

Labour Rights Law has already taken significant measures to protect its own employees and clients, and you can view them here.  We recommend that every employer assess the unique situation in their own workplace, including any risks and opportunities to mitigate these risks, and take all reasonable steps to address them – even if it means some business inconvenience or business cost.

Such measures include:

• Formally address employees about the risk of the COVID-19, and how people can reduce the risk of transmission, including frequent and deliberate hand washing and refraining from shaking hands as a form of greeting and use alternatives.
• Formally direct employees to stay home if they have any flu-like symptoms or come into contact with anyone that has COVID-19.
• Direct everyone who can work from home to work from home. For those who must be in the workplace, all in-person meetings should be cancelled in favour of conference calls or Internet conferencing. Employees should be encouraged to engage in “social distancing” practices.
• Places where employees congregate in groups on the work premises, such as meeting rooms, cafeterias, kitchens, or gyms, should be closed.
• Cleaning measures with single-use, disposable disinfectant wipes should be increased as much as practicable – especially on areas that people touch often (e.g. keyboards, telephones, cell phones, work surfaces, elevator buttons, banisters on stairways, etc.).
• Keep track of any employees who must self-isolate for 14 days, such as those who return from travel, and the date they can return to work if they are symptom-free.
• In workplaces where large numbers of people normally work in close quarters, employers should:

• Post notices about the COVID-19, its symptoms and how to reduce transmission, and directions to employees to leave the workplace and self-isolate immediately if employees are feeling unwell or know they have come into contact with someone with COVID-19;
• Increase distance between employees (e.g. staggering shifts or moving work stations);
• Limit access to the workplace only to employees and clients; and
• Take active measures to prevent any employees exhibiting symptoms of the COVID-19 from attending work. For example, employers can use non-contact thermometers at entry points to ensure no one in the workplace has a fever.

The situation around COVID-19 has been evolving rapidly, and employers should refer to government websites frequently to keep abreast of requirements and recommendations from officials and medical experts.

Right to refuse unsafe work

Under section 3.12 of BC’s Occupational Health and Safety Regulation (“OHSR”), an employee must not carry out a work process if that person has “reasonable cause to believe that to do so would create and undue hazard to the health and safety of any person.”  Any worker who refuses work on this basis must report the circumstances of the unsafe condition to the supervisor or employer.

Determining whether the refused work is unsafe is a highly fact-specific analysis and must be done on a case-by-case basis.  Part of this determination is considering what “undue hazard” and “reasonable cause to believe” means.  WorkSafeBC’s Guideline 3.12 Refusal of Unsafe Work provides guidance to interpret these terms.  This guidance notes that “undue” is defined as “unwarranted” or “inappropriate.” “Reasonable cause to believe” means, according to this Guideline, that the worker must assess the situation “as a reasonable person, taking into account relevant and available information and exercising good faith and judgment with respect to the hazard…”

In our view, employers who do not take all reasonable steps to keep their workplaces safe not only expose their employees, customers, and their families to unnecessary risk, but also to workers refusing work which they reasonably believe to be unsafe.

Workers compensation

Workers may make claims for workers compensation if they contract an infectious disease in the course of their employment.  Such workers, especially those in the healthcare industry, may make such claims if they are infected with the COVID-19 and the workplace.

Sick leave and employment insurance

The Federal Government of Canada recently announced that it would provide support to workers in quarantine or who have been directed to self-isolate by waiving the mandatory one-week waiting period for employment insurance benefits.

We recommend that employers a) direct employees who are ill to quarantine themselves and to apply  immediately for EI benefits, and b) “top up” these benefits for employees so that employees are not pressured by financial concerns to come  to work if they are feeling unwell.  Again, Labour Rights Law has implemented this measure in the interests of maintaining a healthy workplace and protecting its employees, clients, and our community at large.

COVID-19 and the workplace – Sick leave benefits

Employees and employers should review employment contracts to understand entitlements to sick leave.

Even where there is no provision for sick leave in the employment contract, some provinces require the employer to provide either unpaid or paid sick leave.  In BC, however, the employer is not obligated to do so if there is no provision under contract – though an employee who’s off from work due to illness is an employee and the employment relationship is not severed.

Employers may allow employees who are off sick to use their vacation days as sick days. Once again, however, we strongly recommend that employers do what they can to encourage sick employees to stay away from work – and this includes providing them with paid sick days.  As noted above, employees who are directed by their employers to stay home from work due to the COVID-19 may also qualify for EI and such EI benefits can be “topped up” by the employer to ensure that they do not suffer any financial consequences because they are staying away from work and other employees.

Employers should also be aware that employees have rights under provincial employment standards legislation to take time off work to care for critically ill family members. In BC, for example, the Employment Standards Act provides that employees can take up to 36 weeks of unpaid, job-protected critical illness leave when they need to care for a family member who is under 19 years of age and who is critically ill. To care for an adult family member who is critically ill or injured, employees may take this leave for up to 16 weeks.

Human rights

Human rights legislation prevents employers from discriminating against employees under a prohibited ground such as a disability and family status.  Employers should take care that their conduct during the COVID-19 outbreak does not violate these laws.

Any measures made in the workplace in an attempt to mitigate the risk of spreading the COVID-19 should be reasonable, measured, and supported by public health  recommendations.  For example, employees could make a complaint against their employer if the employer takes action against them in their employment simply because they are from a country locked down due to COVID-19.  Employers also need to accommodate employees, up to the point of undue hardship, who must stay home to care for family members, such as elderly parents or children, who require care and attention during working hours.

In the case of an employee who has tested positive for COVID-19, the employer may also need to accommodate that employee’s restrictions and limitations resulting from their positive diagnosis. The employer’s obligation to accommodate an employee is only triggered if the employee is considered to be “disabled” as defined in the Human Rights legislation, meaning that the viral infection must impair the employee’s ability to carry out normal life functions with some degree of permanency. However, due to the highly varied symptoms exhibited by individuals infected with COVID-19, the assessment of whether an employee is entitled to accommodation under the Human Rights legislation must be made on a case-by-case basis.

Terminating employees

Already many employers around the country have reduced the hours of employees or laid them off altogether.  Canadian government is promising action to support such employees.

Employers should be very wary of terminating employees as a result of reduced business or closures or illness due to COVID-19.  Terminating employees without cause in such situations can be contrary to existing legislation, such as employment standards or human rights legislation, or collective agreements.  Lay-offs or terminations without cause can also trigger notice provisions or severance payments that can be very high – especially for older employees or employees with long service.

Employers and employees should also be mindful of the length of time an employee has been laid off. While some collective agreements may permit temporary layoffs, should the layoff become indefinite or last more than a few months, there may be an inference drawn that the employment relationship has been effectively terminated on a without cause basis.

Conclusion

Labour Rights Law encourages Canadian employers and employees to take all reasonable steps possible to protect each other and society at large.  If employees don’t have to be at work, employees should be told not to come to work; if employees must be at work, they should be given all the tools available to limit contact with others and reduce the risk of transmission of the COVID-19 as much as possible.

Employed people spend many, if not most, of their waking hours at work.  The choices employers and employees make now will determine not only how our businesses and livelihoods are impacted, but the lives of our friends and families.

DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice.  To provide legal advice on your problem, a lawyer must first understand your specific situation.

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