On January 30, 2020, the World Health Organization (“WHO”) declared the 2019 novel coronavirus (2019-nCoV or “Coronavirus”) outbreak, which was first discovered in Wuhan, China, to be a “public health emergency of international concern.” According to the WHO, a coronavirus is a type of virus that can be transmitted between animals and people, and a novel coronavirus is a new strain that has not previously been seen in humans.
As a result of the WHO’s announcement and coverage by major media outlets, many Canadians have become very concerned about the spread of Coronavirus. Understandably, many Ontario employers want to know what steps they should take to address the potential spread of Coronavirus in their workplaces.
Below we provide an overview of the steps that employers should consider to prevent and address Coronavirus in the workplace, in light of their various obligations under employment, health and safety, and human rights legislation. We first set out more general recommendations, then address the specific legal obligations to consider in the circumstances.
However, it is crucial for employers to bear in mind that the Public Health Agency of Canada has assessed Coronavirus to pose a “low risk” to the public health of Canada. In fact, there have only been four (4) confirmed cases of Coronavirus in Canada to date, with three (3) confirmed cases in Ontario. Therefore, employers in Ontario should not panic, as there is presently a low risk of Coronavirus affecting their workplace. Nonetheless, prudent employers would be well advised to be prepared by understanding how to appropriately address the spread of Coronavirus in light of their various legal obligations.
General Recommendations and Best Practices
In general, employers should enforce any existing policies that they may have requiring employees to stay home when they are sick. Employers that do not have such policies in place should consider implementing a temporary policy requiring employees to stay home if they have Coronavirus-like symptoms, have recently traveled to a high risk area, or have had recent contact with a person that has or is suspected to have Coronavirus.
Employers would also be well advised to ensure that their employees are aware of any policies that they may have providing for greater sick leave or caregiver leave than is available under the Employment Standards Act, 2000 (“ESA”), and any similar entitlements.
Further, employers should consider allowing employees to work from home where possible if the employee has Coronavirus-like symptoms, has recently been to a high risk area, or has recently had contact with a person that has or is suspected to have Coronavirus, where the employee is willing and able to do so.
Where it is necessary to require an employee who may have contracted Coronavirus to not attend the workplace and working from home is not an option, employers should seriously consider paying them while they are off work. Doing so will not only prevent infected employees from attending work to avoid loss of income, it will also demonstrate to employees in a time of great stress how you care for them, which may increase employee loyalty and morale. Alternatively, if paying them outside your normal compensation structure is not an option, at minimum, employers should let such employees use vacation days or lieu days to be compensated during the time off.
Employers’ Workplace Safety Obligations
Employers have a general duty under the Occupational Health and Safety Act (“OHSA”) to take every precaution reasonable in the circumstances to protect workers. As the exact scope of this duty depends on the circumstances of any given case, the precautions or measures that an employer would be required to take with respect to the risk of workers contracting Coronavirus will vary depending on how likely those workers are to be exposed to Coronavirus in their particular role and workplace.
Nevertheless, all employers would be well advised to remind their employees of best practices for avoiding infectious disease. For example, employers should remind employees to:
- Wash their hands frequently;
- Avoid touching their eyes, nose, or mouth with unwashed hands;
- Exercise proper coughing and sneezing etiquette; and
- Avoid contact with people who are sick.
Prudent employers should ensure that their workplace is kept clean and that frequently used objects and surfaces are disinfected regularly. They should post signs reminding employees to wash their hands in areas such as kitchens and bathroom, and should consider providing hand sanitizer stations throughout the workplace.
Moreover, prudent employers would be well advised to encourage employees to self-quarantine if they have recently traveled to a high risk area for Coronavirus, have developed Coronavirus-like symptoms, or if they have had contact with someone who has or is suspected to have Coronavirus. Further, Employers should also require any such person that does not voluntarily self-quarantine to not attend work until they can provide medical documentation stating that it is safe for them to do so. However, it is crucial to note that employers are not legally permitted to inquire about employees’ medical diagnoses, but they can ask whether an employee is contagious, has recently traveled to a high risk area, or has recently come in contact with someone who has or is suspected of having Coronavirus.
In order for this strategy to be effective, it is important to communicate with employees which areas are “high risk” for contracting Coronavirus and which symptoms may be indicative of Coronavirus.
Notably, the Canadian government has advised against non-essential travel to China and all travel to the Hubei province of China (in which Wuhan is located) as a result of Coronavirus outbreak. As such, in our view, employers could reasonably consider the Hubei province or China more generally to be high risk areas for Coronavirus.
According to the Public Health Agency of Canada and the WHO, symptoms of Coronavirus can include respiratory symptoms, fever, cough, shortness of breath, difficulty breathing, and pneumonia. Thus, employers should clearly communicate to employees that these are the symptoms of concern.
Employers should also ensure to regularly check trusted governmental and health agency websites for updates regarding Coronavirus, such as the WHO, Public Health Ontario, and the Public Health Agency of Canada. By staying apprised of the most up to date information, employers will be well positioned to adopt measures that are reasonably tailored to the actual risk presented by Coronavirus in Ontario. As stated above, Coronavirus currently presents a low risk to Ontarians, but Employers should continue monitoring the situation closely.
Workers’ Right to Refuse Unsafe Work
Under the OHSA, workers in Ontario are entitled to refuse to perform work without fear of reprisal if they believe that it is “likely to endanger” themselves or others, unless the danger is inherent to or a normal condition of the worker’s employment or the worker’s refusal would directly endanger the life, health, or safety of another person.
Consequently, workers may refuse to perform work where they believe it puts them at risk of contracting Coronavirus, such as if they work in close proximity to a co-worker that has recently been to Wuhan, China.
Regardless of whether the worker’s concerns are reasonable, the OHSA requires employers to investigate the alleged danger in the presence of the worker and the workplace’s Health and Safety Representative or Joint Health and Safety Committee, as applicable. Where a resolution cannot be reached, the employer must ensure that the Ministry of Labour (“MOL”) is notified, and the MOL must then investigate.
Discrimination and Harassment
Under the Ontario Human Rights Code (“Code”), Employers are prohibited from discriminating against or harassing employees on the basis of protected grounds under the Code, including disability, race, ethnicity, family status, and place of origin, among other protected grounds.
Employers should be aware that widespread concern about Coronavirus has led to many reports of harassment and discrimination against Chinese people, as well as other persons of Asian descent, due to Coronavirus originating from Wuhan, China. Employers must ensure that they do not treat any employees differently than other employees because of their race, ethnicity, or place of origin. For example, do not single out Asian employees with questions about their travels or health if you are not going to ask all of your employees the exact same questions. Such questions should be directed to all employees, or none.
Employers are also required to take all reasonable steps to ensure that their workplaces are free from harassment under the OHSA.
Accordingly, employers should make clear to their employees that it is impermissible for them to discriminate against or harass any person, and that they must not perpetuate inaccurate stereotypes about the likelihood of Asian people, or any other protected group, having contracted Coronavirus. Once again, at present, there have only been four (4) confirmed cases of Coronavirus in the entire country.
Finally, the Code also obligates employers to accommodate employees with work-related limitations arising from a protected ground such as disability or family status, up to the point of undue hardship. In our view, Coronavirus would likely be considered a disability under the Code. Therefore, where an employee has Coronavirus, the employer must accommodate any work-related limitations arising from the virus to the point of undue hardship.
Protected Leaves from Work
Employers should be aware that their employees with at least two weeks’ service may be entitled to a number of job-protected leaves under the ESA if they are directly or indirectly affected by Coronavirus.
For example, employees are entitled to up to three (3) days of unpaid Sick Leave each year because of personal illness, injury or medical emergency, which would clearly be available to any employee who contracts Coronavirus.
Similarly, employees are entitled to up to three (3) days of Family Caregiver Leave each year due to the illness, injury, or medical emergency of certain family members, or an “urgent matter that concerns” such family members.
Each year, employees are also entitled to:
- Up to eight (8) weeks of unpaid Family Caregiver Leave to support certain family members with a “serious medical condition”;
- Up to twenty-eight (28) weeks of unpaid Family Medical Leave to support certain family members with a “serious medical condition” that are at significant risk of dying within twenty-six (26) weeks;
- Up to thirty-seven (37) weeks of unpaid Critical Illness Leave to care for certain family members that are under the age of 18 and “critically ill”; and
- Up to seventeen (17) weeks of unpaid Critical Illness Leave to care for certain adult family members that are “critically ill”.
It is worth noting that employees may also be entitled to an unpaid Emergency Leave under the ESA if an emergency is declared in Ontario under the Emergency Management and Civil Protection Act, although at present there is no indication that such a declaration is being considered by the authorities.
Interestingly, in 2003 the Ontario government passed the SARS Assistance and Recovery Strategy Act, 2003 in response to the SARS outbreak, which provided additional unpaid leaves for the medical investigation, quarantine, or treatment of employees or their family members, in addition to the ESA leaves discussed above. We will continue monitoring the situation and provide you with an update if similar legislation is passed in relation to Coronavirus.
Finally, employers should not panic and should ensure that they take a common-sense approach in preventing and addressing Coronavirus that is reasonable in light of the most up-to-date information regarding the risk that it actually presents to their workplace, in light of all of their legal obligations.
Do not be alarmed, be prepared.
This blog is provided as an information service and summary of workplace legal issues. This information is not intended as legal advice.