The COVID-19 pandemic continues to evolve rapidly since we published our first bulletin, The Novel Coronavirus: Preparing Employers to Respond, which discussed the legal issues facing employers.
Tracking of COVID-19 in terms of the number of confirmed cases and deaths, and which countries have been impacted, remains highly fluid. We advise employers to keep themselves informed by monitoring the daily situation reports from the World Health Organization (WHO) and refer to the Public Health Agency of Canada (PHAC) for current assessments on the public health risk for Canadians, guidance applicable to workplace health and safety, and the latest travel advisories.
The Risk to Canadian Workplaces
As with most common illnesses, the workplace is susceptible to the spread of COVID-19 because of the proximity between workers, and the frequency of contact with shared surfaces and objects. According to the PHAC, COVID-19 spreads through infected respiratory droplets being deposited on surfaces and objects, which another person may touch and then subsequently touch their mouth, eyes or nose. Someone can also catch the virus by breathing in these droplets if they are in close, prolonged and personal contact with an infected person.
It is important for employers to be prepared to deal with workplace issues arising from COVID-19 as global health officials almost uniformly agree that the disease will continue to spread. This article outlines the issues that employers should be prepared to deal with as part of a pandemic or communicable illness response plan. 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.
It is also important for employers to keep COVID-19 in context and not to be swayed by sensational media reports without objective medical or public health information. Most people infected with COVID-19 recover without requiring hospitalization. The risk of serious illness is greater in vulnerable individuals, such as the elderly and those with weakened immune systems.
Establishing a Communicable Illness Policy
Employers should develop a written policy setting out clear guidelines on how the employer handles communicable illnesses like COVID-19. A written policy that is communicated to the workforce and uniformly enforced will provide legitimacy to employer actions, guidance to employees and managers, and ensure consistency. This can help mitigate legal risks and assist in the defence of legal challenges.
Employers with unionized workplaces should be mindful of their collective agreement obligations (if any) to consult with the union. In the federal jurisdiction, employers should also be mindful of their statutory obligations to work with health and safety committees on the development of certain health and safety initiatives.
A communicable illness policy may include some of the following elements:
- A requirement for employees to notify their manager if they or someone with whom they reside plans to or has recently travelled to/from an area subject to a Government of Canada travel health notice to avoid non-essential travel or to avoid all travel;
- A requirement that employees who have or suspect that they have a communicable illness will seek appropriate medical treatment and follow the recommendations of their medical professional, particularly as it relates to remaining home from work, self-isolation, quarantine or other measures designed to prevent the spread of illness;
- A requirement that employees remain out of the workplace for the period of time recommended by medical professionals, and a related right of the employer to enforce that requirement for ill employees and those who have been exposed to a highly contagious communicable illness where that restriction is necessary to protect other employees;
- An overview of the paid and unpaid leave entitlement available to employees affected by a communicable illness;
- A confirmation that the employer may restrict business travel to areas subject to a Government of Canada health travel notice to avoid non-essential travel or to avoid all travel;
- A confirmation of the employer's commitment to take reasonable precautions and other specifically prescribed steps required by health and safety or other legislation to protect employees; and
- A confirmation that the employer's decision about employees affected by a communicable illness will be based on the most current available medical or public health information, including information about transmission risk, and prognosis for recovery, among other things.
Some specific issues covered in a communicable illness policy are discussed in more detail below.
Employee Leave of Absence
Employers should reserve the right to restrict employees from attending work to prevent the spread of communicable illnesses. This may include requiring ill employees, or employees who have been exposed to certain highly contagious illnesses, to remain at home. These decisions should be made based on the most current available public health and medical information and not on speculation (no matter how well-intentioned).
Employees who are ill with a communicable illness and unable to work should have access to paid sick leave benefits generally available to other employees. If no paid sick leave entitlements are provided by the employer, sick time may be unpaid by the employer. Employees should be reminded of the possible availability of Employment Insurance sickness benefits or other government benefits.
Employees who have been exposed, but who are not ill, should be allowed to work remotely where possible given the nature of their duties and the available technology infrastructure. Where remote work is not possible, employers should obtain specific advice about whether leaves should be paid or unpaid to mitigate possible liability.
Employers should be mindful of employee privacy issues when communicating leave of absence decisions to other employees in the workplace. Information should be limited to confirming that an employee is out of the workplace and their expected return to work date. No other information should be provided without express employee consent. It may be appropriate in some cases to seek that consent and develop a message that the employee is comfortable sharing with coworkers and that is carefully vetted by the employer to ensure compliance with their legal obligations.
Employers should caution employees against personal travel to any country or region subject to a level 3 or 4 government travel health notice. Level 3 warns Canadians to avoid non-essential travel, and level 4 warns Canadians to avoid all travel. Employers should also consider suspending business travel to such areas and requiring employees to leverage technology rather than face-to-face interactions to continue business. Under such travel restrictions, employees should be expected to provide advance notification if they intend to travel to any of those countries or regions.
Personal travel warnings or business travel suspensions should be based on public health information and government travel health notices, and updated as necessary to ensure they are current. In rapidly evolving and fluid situations, like the COVID-19 outbreak, this may require daily monitoring and updating.
If business travel to an area subject to a travel health notice in unavoidable, employees should be made aware of the potential risks and best practices for their health and safety while travelling. Some employees may wish to decline such required travel based on the perceived risk. Employers should seek legal advice in relation to any work refusal, or when considering whether to restrict an employee from business travel because they may be at higher risk of illness.
In addition, employers should keep track of employees who are travelling abroad for business, and may wish to circulate health screening questionnaires for employees returning from travel. If an employee returns from a country with a high number of confirmed cases, but they are not themselves experiencing symptoms, the employer may consider exercising their policy to place the employee on leave.
It is not likely reasonable to require confirmation that an employee tested negative for COVID-19 before returning them to the workplace whether from illness, leave or travel. Testing for COVID-19 is limited and currently restricted to cases meeting certain criteria. It is only accessible through public health authorities and is not available on demand.
Generally, it is advisable to self-isolate for the 14-day incubation period, as recognized by PHAC,, or longer as directed by a healthcare professional or public health authority, after suspected exposure to COVID-19. Depending on the circumstances, if an employee is not experiencing symptoms after 14 days of self-isolation, it may be reasonable to return the employee to the workplace without a medical certificate. If an employee has been experiencing symptoms, they should remain out of the workplace for the period advised by their treating physician or other healthcare professional or public health authority.
In addition to a communicable illness policy, employers should develop a plan and procedures in case their community becomes seriously affected by COVID-19. The plan should include measures to keep the business running even if employees cannot come into the workplace. This would include identifying key employee groups and individuals that are necessary to keep the business operating every day. Employers can then consider whether some of these key functions can be done by employees at another location, or by a team in another geographic location.
Businesses should ensure that information technology systems are functioning to enable seamless working from home. This may require scheduling additional IT support staff to assist with employees experiencing any difficulty with remote access systems.
By engaging in contingency planning and preparing the workplace for the impact of an outbreak, employers can at least mitigate the consequences of a worst-case scenario.
Fasken will continue to monitor the situation and will provide timely updates. If you have any questions about COVID-19 issues impacting your workplace or need assistance preparing, please contact us.
The assistance of Jessica Nolan in preparing this article is gratefully acknowledged.
Shane Todd is a partner with the Fasken Toronto office who advises employers on workplace issues and represents them in legal proceedings. He has won cases at trial and on motions, negotiated and enforced agreements and achieved great settlements for clients. Frequently retained in high-stakes litigation, Shane was recognized as a "Rising Star: Leading Lawyer under 40" by Lexpert in 2019.
Justin P'ng is an associate with the Fasken Toronto office who practices in the areas of labour, employment, and human rights law. He advises unionized and non-unionized employers in the provincial and federal sector on matters related to employment standards and related litigation, grievance arbitration, labour relations and human rights.