The World Health Organization (WHO) has declared the 2019 Novel Coronavirus outbreak a public health emergency of international concern. There are now over 7,500 confirmed cases of the coronavirus reported globally.[i] There are three confirmed cases in Canada with many more possible cases being investigated.[ii]
Coronavirus refers to a family of viruses that can infect both humans and animals.[iii] A novel coronavirus is a new strain that has not previously been identified in humans.[iv] According to the latest information from Toronto Public Health and Health Canada, coronavirus symptoms range from mild to moderate and include fever, runny nose, headache, cough, sore throat, and difficulty breathing.[v]
The Public Health Agency of Canada currently assess the public health risk of coronavirus as low for Canada and for Canadian travellers.[vi] However, employers are understandably concerned about their employees and business continuity. This article provides some general guidance on the legal issues that employers may encounter. This is general guidance only and employers should be prepared to obtain specific legal advice to deal with specific workplace issues as matters unfold.
This general guidance will apply to most workplaces. Workplaces that are health care facilities treating the ill will require a more immediate and tailored response to issues. Employers with unionized workforces will also need to be mindful of specific obligations in their collective agreements, including any obligation to develop a response in consultation with union representatives.
Health and Safety Precautions
Health and safety legislation imposes a general duty on employers to take reasonable precautions to protect employees. This requires employers to take active steps to ensure employees are safe from workplace hazards. The exact steps that an employer must take to protect employees from the coronavirus depends on the likelihood of employees being exposed to and contracting the virus at work. During the Severe Acute Respiratory Syndrome (SARS) outbreak in Toronto in 2003, the Ministry of Labour and public health authorities recommended that employers:
- Ensure that employees with flu-like symptoms do not come to work;
- Promote good hygiene practices (like handwashing) and ensure the work environment is clean;
- Ensure that engineering controls (like ventilation) are properly maintained; and,
- Distribute and train employees in the use of personal protective equipment, as appropriate.[vii]
This is also good preliminary advice for the coronavirus. Employers should monitor bulletins and news releases from health authorities for the latest updates. Their advice will help employers fulfill their duty to take reasonable precautions to protect employees.
Employer also have a duty under health and safety legislation to provide information to employees. This duty could require employers to tell employees about the risk of contracting the virus at work, and about the measures in place to control or eliminate that risk. Employees may ask about whether they can wear masks or other personal protective equipment at work. Based on current information, the use of masks, respirators, and glasses is not recommended for those outside of health care employees in close proximity to confirmed cases. Instead, the WHO is recommending standard precautions for the general public to reduce exposure to and transmission of the virus, including:
- Frequently clean hands by using alcohol-based hand rub or soap and water;
- When coughing and sneezing cover mouth and nose with flexed elbow or tissue – throw tissue away immediately and wash hands;
- Avoid close contact with anyone who has fever and cough;
- If you have fever, cough and difficulty breathing seek medical care early and share previous travel history with the health care provider;
- When visiting live markets in areas currently experiencing cases of novel coronavirus, avoid direct unprotected contact with live animals and surfaces in contact with animals;
- The consumption of raw or undercooked animal products should be avoided. Raw meat, milk or animal organs should be handled with care, to avoid cross-contamination with uncooked foods, as per good food safety practices.[viii]
Enhanced precautions will be appropriate for employees in health care working in close proximity to confirmed cases of the coronavirus.
The WHO emergency declaration and the relatively quick spread of the virus has attracted significant media attention and speculation. This may result in employees refusing to perform work if they believe they may be exposed to the virus.
Employers should be familiar with the employees' right to refuse unsafe work and how these situations must be handled. Generally, employees have the right to refuse work where they have reason to believe their health and safety is at risk. The right to refuse is more limited for those working in certain jobs (like healthcare) where the unsafe condition is a normal part of work, or where the refusal would endanger the life, health and safety of another.
If an employee refuses to work, the employer must follow the specific resolution process outlined in health and safety legislation. Employers are generally prohibited from disciplining or threatening employees for exercising their right to refuse work. Employers who are considering disciplining an employee for a bad faith or improper work refusal should seek specific legal advice.
Time Off for Illness or Care Obligations
Employees who are ill or need to care for ill family members may be entitled to paid time off under employer policies or contracts, or unpaid time under employment standards legislation for illness or care obligations.
In Ontario, employees are entitled to take sick leave, family responsibility leave, family caregiver leave, family medical leave, and critical illness leave under employment standards legislation. Depending on the circumstances, the same event can entitle an employee to multiple leaves because each leave is a separate entitlement. These leaves can range significantly in duration. Employers should review the requirements for the different leave entitlements.
Instead of requesting a doctor's note, depending on operational needs and the leave being requested, employers may wish to simply encourage employees who are potentially infected with the coronavirus to stay at home and contact emergency health services if and as appropriate. Requiring a doctor's note in every case may actually do more harm because employees could potentially infect others at their doctor's office.
Accommodation and Discrimination
Employees are protected under human rights legislation from discrimination based on defined grounds including disability, family status, national origin, and racial and ethnic background. The category of disability is interpreted broadly and may, in certain circumstances, include the coronavirus. This is particularly true since the Ontario Human Rights Commission clarified during the 2003 outbreak that SARS should be treated as a "disability" under the Ontario Human Rights Code. This protection applies whether based on perceived or actual disability.
Employees who are required to take time off work to care for family members may also be protected from discrimination and entitled to accommodation based on family status. In any case where an employee wishes to take a leave of absence to care for themselves or a family member due to the Coronavirus, employers should carefully assess the specific circumstances and ensure they fulfill their procedural and substantive duty to accommodate to the point of undue hardship. This may require extended leaves of absence over and above employment standards entitlements.
Employees are also protected from discrimination based on having a racial, ethnic, or national background that is believed to be associated with the coronavirus. For example, an employee of Asian descent, or an employee who is associated with someone of Asian descent, should not be treated differently from other employees because of their ethnic or national origin. Employers must, of course, be vigilant to control the risk of coronavirus at work, but the employer should take care not to be involved in speculation, alarmism, or fearmongering generally, and particularly about the origins of the virus.
Under the workers' compensation system, employees have a statutory entitlement to compensation for personal injury or illness that arises out of and in the course of their employment, including wage-loss benefits and medical coverage. Employees who become infected and who work in a healthcare setting where they interact with patients infected with the Coronavirus, or who are required to travel to areas where the Coronavirus is known to be prevalent, may be able to claim their infection arose in the course of their employment. Employers in these situations should ensure all appropriate risk-mitigation efforts are implemented based on the latest guidance from public health authorities, and to impose travel restrictions accordingly.
Although there will always be unknown and uncontrollable elements to the spread of an infectious illness, employers can take practical measures now to prepare themselves for these contingencies. Employer should.
- Ensure managers are aware of their duties and obligations under workplace legislation, including in the areas of employment standards, human rights, and occupational health and safety as they relate to the coronavirus.
- Monitor the latest updates from public health authorities, including municipal, provincial, and federal public health agencies. These agencies will provide objective information about the coronavirus on an ongoing basis, and employers should refer employees to these as their main source of information.
- Review and update their policy or policies addressing communicable illnesses, and to clarify the protocols that apply to the coronavirus. Generally, these policies should address what illnesses are covered, protocols for disclosure and for staying at home, the application of paid and unpaid leave entitlements to illness and quarantine-related situations, guidelines for work-related travel, and available workplace resources.
- Develop a broader policy to address how business operations will continue in the event of a more serious outbreak. This can be prepared as a general policy for defined emergency events, including an outbreak of infectious illness such as the Coronavirus, and should outline how core business functions and channels for decision-making will be maintained in such an event.
- Depending on the nature, size, and sophistication of business operations, emergency preparedness plans may include succession plans for defined roles in the event of employee absences, communication protocols for internal and external parties, general health and safety practices, and operational measures for dealing with facilities that are directly affected.
[vii] Ministry of Labour, "Workplace Laws and SARS" (10 December 2003).