The COVID-19 pandemic is having a significant impact on the Canadian workforce and economy, putting employers and employees in the position of having to figure out their legal obligations and protections in a rapidly changing and uncertain time.
Please note that the information in this post relates to Ontario’s provincially regulated and non-unionized workplaces. It does not constitute legal advice. Should you require legal assistance, please contact a member of the Turnpenney Milne LLP team who would be happy to assist you.
Occupational Health and Safety
Pursuant to Ontario’s Occupational Health and Safety Act, employers are required to take all reasonable precautions to protect the health and safety of their workers. What is reasonable will depend on the severity of the potential workplace hazard and the likelihood it would lead to an occupational illness or injury, based on the information available to the employer at any given time. With respect to COVID-19, it would be reasonable for employers to take precautions that are consistent with the directives of public health and government authorities. Those include:
- a. Quarantining workers who:
a) have a confirmed or presumptive case of COVID-19;
b) are exhibiting symptoms of COVID-19;
c) were in direct contact with someone who has a case of COVID-19;
d) have been directed by public health officials to quarantine; and
e) have traveled in the last 14 days, irrespective of whether they are symptomatic or asymptomatic.
In these cases, employers should direct workers to not attend the workplace. Employers are not required to pay workers during any quarantine or isolation period (though employees could claim constructive dismissal in that scenario. More on constructive dismissals below). Employees who are sick may be able to receive compensation or benefits under an employer-funded or third-party insurance policy. Those who do not have third-party insurance are able to claim sick benefits under the Employment Insurance Act. Employees could also use their vacation or sick day entitlements to provide them with some income during this period. If vacation has accrued, employers can unilaterally require employees to use vacation days as long as they are mandated in periods of one, two or three-week blocks.
At the end of the quarantine period, the employer should ensure that the employee has followed and passes the then current public health guidelines before they are allowed to return to the workplace. - Reminding workers who are attending the workplace to take measures to protect themselves. Public health authorities have recommended individuals take various measures with respect to hand hygiene and respiratory etiquette;
- Frequently and thoroughly sanitizing used surfaces and objects, providing access to handwashing facilities, and placing hand sanitizing dispensers throughout the workplace;
- Cancelling all non-essential business travel and encouraging workers to avoid non-essential personal travel;
- Adjusting workplace procedures and protocols to reduce social contact, such as staggering start times, or providing greater latitude for workers to work from home. If a work-from-home arrangement is being made available, it is a good idea for employers to remind workers about any confidentiality obligations with respect to company data and expectations surrounding their availability and connectivity at home. Employers must pay workers for the work they have performed remotely and reimburse employees for any costs they have incurred as a result of having to work from home. If a worker is working less than regular hours at home, their pay can be pro-rated for the actual time worked.
Employers should clearly communicate the foregoing to their workers by way of a written workplace policy. Given the rapidly changing nature of the COVID-19 pandemic, that policy should be updated as public health and government authorities continue to release further information.
Work Refusals
Most workers have a right to refuse work if they have reason to believe that the workplace “is likely to endanger” their health. Where a worker exercises that right, he or she must promptly report the refusal to their supervisor who must, in turn, investigate the issue. During the investigation, the worker must remain in a safe place that is as near as possible to their workstation, but available to the employer for the purposes of the investigation. Another worker could be asked to perform the work that was refused, but the employer must inform that second worker that the work was refused and why. The second worker has the same right to refuse work as the first worker.
If, following the investigation, the worker still has reason to believe that their workplace conditions are likely to endanger them, they can continue to refuse to work and the Ministry of Labour will investigate the issue. Employers cannot penalize, or threaten to penalize, a worker for refusing to work.
If a worker refuses to work because they are at higher risk of getting very sick from COVID-19 (e.g. due to their age, a medical condition, or weakened immune system), the Human Rights Code requires the employer to accommodate that individual’s refusal to the point of undue hardship (more on human rights below).
If an employer is advised that a worker is being tested for COVID-19, they should contact the public health authorities to get direction on how to contain the spread of the illness in the workplace. If a worker confirms that they have contracted the virus, the employer must report the illness to the Ministry of Labour in writing within four days and work with public health authorities to track the worker’s contact and put in place measures to mitigate the spread of the virus. Employers are also required to notify their joint health and safety committee, health and safety representative, and trade union (if they exist).
Conclusion
COVID-19 has presented a myriad of complex legal issues to employers and employees. If you have any questions about COVID-19 and your related rights or obligations, contact a member of the Turnpenney Milne LLP team. Though we are all working remotely currently, we remain available to assist in any way.