Employment considerations of the H1N1 pandemic

This fall marks H1N1’s first flu season as a widespread human infection. There are some serious legal implications of the H1N1 virus that employers should consider. We have set out below some practical advice that will assist employers as they deal with H1N1’s first flu season as a widespread human infection.

Employer’s duty to protect
Occupational health and safety legislation across the country provides that employers have an obligation to keep their workers safe. For example, in Ontario, the Occupational Health and Safety Act states that employers have a duty to “take every precaution reasonable in the circumstances for the protection of a worker.” This means that Ontario employers have a duty to protect their employees in all circumstances, including taking reasonable steps to ensure that infectious diseases are not spread in the workplace.

Despite the dangers posed by H1N1, an employer cannot legally require an employee to get a vaccination. However, employers can encourage vaccination through free on-site vaccine clinics or by providing time off for employees to allow them to get vaccinated. Employers can also encourage employees to get vaccinated by sending out a memorandum advising them of the availability of a vaccination and outlining some of the benefits of obtaining the vaccine.

To ensure the safety of the workplace, an employer should require that any employee infected with H1N1 or who exhibits flu-like symptoms remain away from the workplace. However, in doing so, employers should be mindful of any other potential legal issues (e.g., human rights and/or privacy issues) that may arise from an employee’s temporary removal from the workplace.

Canadian human rights law generally provides that employers are only allowed to request information that is relevant to the accommodation of a disability. Although it is typically thought that the flu will not be considered a disability under human rights legislation, it is unclear whether H1N1 will be considered a disability, given its classification as a pandemic virus. Employers, accordingly, should be aware of the potential for human rights complaints arising from mandatory disclosure of a diagnosis of H1N1.

Employers must ultimately balance their obligation to maintain a safe and healthy workplace with an employee’s right to privacy with respect to an illness or disability. Therefore, if an employee is exhibiting H1N1 symptoms, an employer should request that the employee obtain medical documentation indicating whether or not they are fit to continue to work and/or if they require any accommodations for the safety of themselves or other workers. However, an employer should avoid asking for a specific diagnosis of the employee.

Employers should ensure that they maintain an updated record of contact information for all employees, so they can communicate with employees who are off sick, should they need to do so. In addition, employers should ensure that they have an emergency contact person on file in case an emergency occurs while the employee is in the workplace.

Sick leave
In certain jurisdictions, employees have a right to take statutory leaves of absence when they are sick or caring for sick relatives. Employers need to be aware of such employee rights and ensure compliance when dealing with absences due to flu.

For example, the Ontario Employment Standards Act, 2000 provides for a statutorily protected, unpaid leave for the care of prescribed family members (Personal Emergency Leave). If a prescribed family member suffers from a personal illness, injury or medical emergency, an Ontario employee of an employer with 50 or more employees will be entitled to take an unpaid leave for a total of 10 days per calendar year. Note that an employer can require an employee taking a Personal Emergency Leave to provide reasonable evidence of the circumstances entitling them to the leave.

Employers would also be wise to review their internal policies dealing with sick time/pay and disability benefits to ensure that these are clear and communicated to all employees.

Working from home
Unless there is an agreement, policy or legislation stating otherwise, employees generally do not have a legal right to be paid unless they work. Therefore, absent a legal right to take paid time off work, if an employee wishes to be paid while off of work, an employer can insist that they either work from home or take vacation time in order to get paid. Otherwise, employees may opt to take an unpaid leave while away from the workplace while sick or while caring for sick family members.

Communication
Particularly at a time when employee safety is in issue, as is the case during a pandemic, employers should ensure that they communicate their expectations to their employees. Employers may want to consider drafting a “Pandemic Policy” for employees that outlines, among other things:

• health and safety expectations (e.g., hand washing, sanitizing workstations, remaining home when sick, etc.);
• how the employer will communicate with an employee in case of emergency (e.g., by phone, email, etc.);
• the call-in procedure in case of sickness or emergency requiring an absence from the workplace (including who to contact and by what means);
• responsibilities while away from the workplace; and
• disclosure requirements
(i.e., to what degree do employees have to disclose the symptoms and/or diagnosis of their sickness).

Hena Singh is a lawyer with the employment law boutique Rubin Thomlinson LLP.

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