Pandemic preparedness and the law

The easiest solution to an outbreak is to provide an alternative work arrangement, such as telecommuting. Employers can also cover paid sick time for any employee who has flu-like symptoms. However, if paid sick time is not feasible, employers have to observe a number of statutory duties.

Workplace safety
In many provinces, occupational health and safety legislation imposes a duty on employers to provide a safe workplace. That could be interpreted as requiring that an employee with a confirmed or suspected case of H1N1 stay home. If an infected employee comes to work, other employees (concerned that their workplace is unsafe) could bring a complaint to the applicable labour regulator.

Human rights
However, an employee who has been prohibited from coming to work could claim discrimination or constructive dismissal.

Human rights legislation in Canada requires that employees with a disability be accommodated up to the point of undue hardship. There are conflicting views as to whether or not H1N1 would be considered a disability for the intention of this legislation.

If it is assumed that influenza is considered a disability, then employers must be prepared to accommodate (that is, provide an alternative work arrangement) the affected employee.

Employment/labour standards
Employment and/or labour standards vary across the jurisdictions. In Ontario, for example, the Employment Standards Act doesn’t require that employers provide paid sick leave to an employee. However, it does allow an employee to take time off (up to 10 days per year) for “personal emergency leave.”

As an alternative to this leave, the Ontario the Ministry of Labour states that an employer could require an employee to take vacation time, or impose a temporary layoff. If the employer considers these unpaid options, though, it must be prepared to face potential discrimination for excluding an employee from the workplace for reasons of illness.

In response to H1N1 concerns, many provinces have published guides and fact sheets outlining applicable information for employers on human rights, occupational health and safety, and employment standards issues. In addition, provincial and federal health ministries and other health bodies have posted useful medical information on the H1N1 virus. For example, the Canadian Medical Association recently suggested that employers not require medical notes for employees who are ill with the flu. They reasoned that physician time would be better used providing treatment rather than completing paperwork and that it could limit the risk of transmission by not requiring people with flu symptoms to go to their doctor’s office.

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