As employers prepare to prevent against the spread of the coronavirus, issues of workplace and public safety will likely take precedent over privacy concerns.
Employers have duties under provincial occupational health and safety laws to take all reasonable precautions to protect workers, communicate information about potential hazards and train employees on how to deal with them — but they also have the right to run their businesses, said Adrian Miedema, partner at Dentons Canada LLP, in a webinar on Friday.
“You do need to manage the business and make decisions based on the best available information . . . even if employees are unhappy or disagree,” he said. “And, of course, you’re going to do that with empathy and concern for your colleagues.”
In the current pandemic situation, it’s reasonable for employers to require employees to disclose where they’ve recently traveled. “Some may say, ‘Aren’t we getting into people’s private lives?'” he said, noting that in more normal circumstances it would be an inappropriate request for employers to make.
“In our view . . . yes, you can ask employees where are [they] travelling and when are [they] travelling. And you can ask them, in my view, if they have anyone in their household that is travelling to affected areas. That’s a fair and reasonable step for employers to take in this kind of public health emergency.”
Miedema suggested companies appoint one person to communicate with employees about their recent travel plans and to encourage employees not to travel to affected countries — in line with the federal government’s recent recommendation that Canadians avoid any non-essential foreign travel. Employers that are concerned about the health situation of an employee could consider reaching out to a third-party medical advisor.
If an employer determines that an employee has contracted the coronavirus — particularly if they believe it was transmitted in the workplace — they should keep a record. In Ontario specifically, employers have a duty to report any “occupational illness” — a broad term that Miedema said would include contracting a viral or biological illness at work — to the Ministry of Labour, their health and safety committee and their union, if they have one, within four days. In Alberta, employers are required to record any illness or acute injury as soon as possible.
Employers may also need to report the transmission to a worker’s compensation board, if they believe it was contracted in the workplace or in the course of employment.
Employers could potentially face work refusals — something the Toronto Transit Commission contended with on Thursday morning, when about a dozen employees refused to work due to concerns around deep-cleaning streetcars to prevent against the coronavirus. The situation was investigated by the Ontario Ministry of Labour and employees were given the all-clear to return to work.
Across Canada, work refusals are permitted when employees have reasonable grounds to believe they will be unsafe at work — with some notable exceptions, such as emergency and hospital workers where the danger is inherent in the job or when a work refusal would endanger others. Miedema noted that, in general, the provisions have been interpreted “not just to say your fear has to be reasonable, but there’s a subjective element . . . because of the employee’s own state of mind.”
Work refusal is a “very difficult process,” which takes up time, involves the employer’s health and safety committee and sometimes the provincial Minister of Labour. “The best and most practical way to deal with this is to put in all the precautions you can to satisfy your workers,” said Miedema. “That upfront planning to give comfort and satisfaction to your employees is far better [than dealing with a work refusal].”
Looking at federal and provincial leave provisions, Catherine Coulter, an employment and labour lawyer at Dentons, noted many leaves are unpaid. Employees can apply for employment insurance in some but not all leaves, though the federal government announced Wednesday that EI coverage would be more broadly available to cope with the coronavirus. The one-week waiting period for EI benefits has been eliminated for people who are quarantined or have been directed to self-isolate. They also won’t be required to supply a doctor’s note.
Even if employees are able to receive EI, it’s only a percentage of their earnings — in Ontario, for example, employees who take family medical leave or critical illness leave only receive 55 per cent of their earnings up to $573 per week. “That does not make a lot of employees whole,” said Coulter.
“Some clients asked if they can top-up that coverage. And the short answer is . . . if you do top-up [the EI payment] it’s going to trigger a clawback by the government. Certain leaves like pregnancy and parental leave do not trigger clawbacks, but other leaves do.”
Employers can avoid this if they’ve registered a supplemental unemployment benefit with Service Canada, but Coulter noted that for those that want to set one up in the wake of the pandemic, they could take a while to be cleared. “You either need to wait until the government clarifies this issue to do a top-up or register a supplemental unemployment benefit program.”
While Coulter noted that employers don’t legally need to pay employees who are ill and quarantined, she said situations may arise where companies should consider whether to pay or top-up employees of their own accord. “It’s been suggested in a number of recent articles that it’s not fair to place the cost of doing business on employees, particularly if the situation is not of their doing. There are concerns that employees who can’t take time off may not self-report or self-quarantine.”
For employers with a limited paid sick leave plan, Coulter suggested considering whether to extend it just for this period of time. Employers with a short-term disability plan in place should check if it covers quarantines as well as illness.
However, school closures across the country present another challenge. Coulter said employers aren’t obligated to pay employees who have to stay at home because of the closures, unless they can work from home. Employers can also think creatively in these situations, such as offering at-work childcare for the short term.
Looking at layoffs, the lengths and terms of temporary layoffs vary from province to province, but employees are eligible for EI coverage during the period they’re off work. “If you’re thinking about keeping the company going and getting money into employees’ hands, that might be the way to do it,” said Coulter.