Gowling WLG has been monitoring the development of COVID-19 closely and is continuously advising clients as more information becomes available. In the interest of helping clients provide a safe and healthy work environment and managing the challenges created by the outbreak of COVID-19, Gowling WLG has prepared the following employer bulletin on the legal risks associated with responding to COVID-19 and recommendations for best practices.
What should employers do immediately in response to COVID-19?
As with many employment-related considerations, the optics of how an employer responds to concerns regarding COVID-19 are important from a human resources, as well as a public-facing business perspective, particularly if employees interact with the public at large. The goal is to not panic, but it is also to avoid being under-responsive. This is a current and important matter. Every employee is reading or hearing about COVID-19 on a daily basis. Employers should be encouraging staff to come to management with any concerns they have related to the workplace.
While some employees may be concerned about the risk of illness, we encourage employers to remind their staff that PHAC‘s assessment of the risk of contracting COVID-19 is currently considered “low”. In practical terms, common colds and influenza remain more prevalent given that we are still in the annual cold and flu season. The instances of community spread (the source of the virus cannot be identified) in Canada is currently extremely low. At present, it is highly unlikely that non-health worker employees will contract the virus from normal working activities.
Employers should also actively remind employees that it is unacceptable to treat employees or members of the public differently, or assume they might be infected with COVID-19 on the basis of their race, place of origin, citizenship, ethnic origin or ancestry. Assuming that someone has the virus because they happen to have exhibited one of the symptoms of the virus and because of an assumption about where they are from based upon how they look would most likely be considered discrimination. If an employer were aware of this differential treatment and chose to do nothing about it, they could be exposed to liability since employers are in most cases vicariously liable for the actions of their employees. We strongly urge all employers to ensure they communicate to their employees that the risk of COVID-19 in the workplace is low, they should not assume that someone with symptoms of a respiratory illness has COVID-19, and there are no people of any specific race, ethnicity or place of origin that are uniquely susceptible or more likely to contract COVID-19. Employers should likely go further and communicate that any employee who behaves in such a manner will be subject to corrective action and, possibly, discipline.
Now, as always during cold and flu season, it is wise to encourage employees that are exhibiting symptoms of an illness to stay home. It is also wise to remind employees of prudent precautions to reduce the possibility of exposure to illnesses including, but not limited to, influenza and COVID-19, such as:
- washing hands often with soap and water for at least 20 seconds;
- disinfecting common surfaces such as equipment, door handles and countertops;
- avoid touching the eyes, nose or mouth with unwashed hands;
- covering the nose and mouth when coughing and sneezing by using a tissue or a flexed elbow;
- avoiding contact with people who are sick;
- getting a flu shot; and
- contacting a healthcare provider if the employee has questions or concerns about their health.
Aside from engaging in standard preventative practices, taking more extreme precautions such as wearing masks or refusing to provide services to members of the general public, is unjustified for most workplaces, and is likely to cause panic. We recommend that employers consider other steps specific to their workplaces such as reducing or eliminating group meetings, reducing or eliminating business travel, and encouraging employees suffering symptoms that are consistent with COVID-19 to leave/ stay away from the workplace.
Information and communication are important tools to manage any workplace concern. We encourage employers to stay informed and follow recommendations published by Canadian public health agencies. The following are links to some helpful websites discussing the status of COVID-19:
- Public Health Agency of Canada
- World Health Organization
- Centers for Disease Control and Prevention
To ensure consistent practices and allay any employee concerns, we have advised several clients on sending bulletins to their employees advising of the status of COVID-19, correcting misinformation, and encouraging the taking of preventative measures which are recommended to avoid contracting or spreading communicable illnesses generally. Workplace procedures should be subject to change based upon any reassessed risk to the public and new information as it becomes available.
If you would like to discuss creating an employee bulletin for your workplace, please contact a member of Gowling WLG’s Employment, Labour & Equalities Group.
Can employers implement travel restrictions?
An employer may implement travel restrictions for business purposes, but should be careful if seeking to impose limits on personal travel. Any effort to restrict where an employee may choose to take their vacation would likely be considered an unjustified imposition on their privacy. However, employers may wish to ensure employees travelling for business or personal reasons are aware of any restrictions imposed on them when they return.
At a minimum employers should follow the travel advisories published online by the PHAC and the Government of Canada and advise employees accordingly. The overall risk to Canadian travelers abroad is also generally “low”, but will vary depending on the destination. There are several active travel health notices for COVID-19, and each affected country or area may have different levels of risk, which are subject to change as the COVID-19 outbreak evolves internationally. At present employers should consider prohibiting the travel of employees for business purposes to COVID-19 highly affected countries and regions as defined by the Government of Canada.
Several employers are requiring employees to disclose personal travel plans so that they can plan for their return to work. Any disclosure required by employees should be managed in a manner that respects employee privacy rights. While mandatory quarantine is required when travelling from certain affected regions, the PHAC is recommending quarantine from most regions only where the traveler is exhibiting COVID-19 symptoms. Accordingly, a requirement to disclose the combination of travel and COVID-19 symptoms is more likely to be found acceptable if challenged.
Can employers force employees to stay home and self-isolate?
It depends. PHAC currently recommends self-isolation in some circumstances, particularly when an individual has travelled from a highly affected country or region, is living with someone who has travelled from there and is not self-isolating, or has been in close contact with an individual that is known to have contracted COVID-19. Practices such as requiring self-quarantine of employees without confirmation of any medical issue and in excess of what has been recommended by the PHAC could result in complaints and allegations of a breach of the contract of employment. If an employer wishes to implement a self-isolation requirement for all affected travel regions, it is recommended that management speak with a member of Gowling WLG’s Employment, Labour & Equalities Group before taking such action to ensure all risks have been assessed.
If an employer intends to implement self-isolation requirements beyond what is required by the PHAC, it should consider allowing employees to work remotely or providing them with a paid leave of absence for the length of the recommended self-isolation period. Employers must be careful if they are requiring employees to take their vacation days or personal days to compensate for a leave of absence as a result of a self-isolation requirement which is not aligned with the current PHAC recommendations. The length of self-isolation for COVID-19 is currently recommended to be fourteen days from the last date of potential contact.
Only in the event that an employee is refusing to comply with the employer’s established policy on attendance at work should an employer consider steps to isolate other employees from the potentially affected employee and active measures to prohibit the employee from attending at the workplace. If this situation arises, it is recommended that you speak with a member of Gowling WLG’s Employment, Labour & Equalities Group before taking any action to allow for consideration of the specific circumstances.
OHS and Human Rights Considerations
The Human Rights Tribunal of Ontario has held that common, transitory illnesses such as colds, influenza, bronchitis and lice are not considered disabilities under the Ontario Human Rights Code. Therefore, while an employee could theoretically file a human rights complaint against an employer for differential treatment on that ground, they are unlikely to be successful, unless there is dramatic reversal of holdings from existing case law. However, if an employee contracts COVID-19 and suffers permanent or long-term health effects, those resulting effects may qualify as a disability. Contracting COVID-19 in the workplace may also entitle an employee to claim for workers’ compensation benefits.
As noted above, it is not acceptable to treat employees or members of the public differently, or assume that they might be infected with COVID-19 based on their race, place of origin, citizenship, ethnic origin or ancestry.
In respect of health and safety, employees under health and safety (OHS) legislation do have the right to work in a safe and healthy environment. They generally have a “right to know” about any potential hazards to which they may be exposed. They also have a “right to participate” in identifying and resolving workplace health and safety concerns, and a “right to refuse” unsafe work. Employers have an obligation to ensure the safety of their workers under OHS legislation. That obligation includes taking every precaution reasonable in the circumstances for the protection of workers. This can also apply to illnesses in the workplace such as during cold and flu season. Employers are expected to put in place the measures needed to protect workers from infectious diseases, and inform, instruct and supervise workers to protect their health and safety.
However, we reiterate that the PHAC currently assesses the general risk of COVID-19 to Canadians as “low”. Therefore, an employee’s refusal to work generally, or refusal to work with co-workers or members of the public based upon an erroneous belief of the level of risk of contracting COVID-19, is unwarranted. At present, it is highly unlikely that anyone in a non-health related job will contract the virus from normal working activities. If an employee’s concern cannot be allayed by educating them on the real risks of infection, the Ministry of Labour should be contacted to assess the level of safety in the workplace pursuant to OHS legislation.
Although the overall risk of COVID-19 is currently assessed as “low”, employers play a critical role in the management of public health concerns. Employers should take the health risks seriously and maintain an open dialogue with their employees about reasonable concerns related to COVID-19 in the workplace, while not encouraging an overreaction. We encourage all employers to remain vigilant against both complacency and panic, as well as safeguarding the rights of those from places affected by this virus.
To learn more about how workplace policies on communicable illnesses and handling COVID-19 in your workplace, please contact a member of Gowling WLG’s Employment, Labour & Equalities Group.