Canadian employers providing a variety of goods and services are contending with the impact of COVID-19. People infected with the virus have been on airplanes, in airports, commuter trains, public transport, hospitals, nursing homes and other workplaces.
At this point the virus has spread to multiple countries around the world and is found in at least four Canadian provinces.
Employers need to be prepared to address the threat posed by this virus and to continuously update their strategies to do so as the situation evolves.
Prevention: Protecting Workplaces
Employers need to take practical measures to protect workplaces from the possible transmission of the virus.
Ontario employers have a duty under the Occupational Health and Safety Act (the “OHSA”) to take every precaution reasonable in the circumstances for the protection of a worker. In the face of a possible international pandemic, what is considered to be a reasonable precaution is likely to be a moving target. Employers should remain up to date with the evolving status of the virus both globally and locally. The following are practical prevention measures for employers to consider.
Obtaining Up to Date Information
The Ontario Ministry of Health is providing daily (10 am EST) updates on the status of COVID-19 here, including important information about the status of cases in Ontario, currently affected areas, symptoms and treatment, and practices for protecting against the contraction and spread of the virus. Keeping apprised of the situation will allow employers to make workplace decisions with the most recent and relevant information. The World Health Organization, and the Centre for Disease Control are also excellent sources of information.
Employers should educate employees on general prevention measures including:
- Washing hands often with soap and water, or alcohol-based rubs;
- Sneezing and coughing into elbows or tissues;
- Avoiding touching eyes, nose or mouth;
- Avoiding unnecessary contact such as shaking hands; and
- Wiping down frequently touched surfaces such as keyboards, phones, and other types of equipment.
Further, employers should notify employees of any relevant changes to existing policies and the implementation of any new policies responsive to COVID-19.
It is important to remember that employees also have duties under the OHSA, including the duty to work in compliance with the OHSA, report workplace hazards that they know about, and not to work in a manner that may endanger themselves or other workers. Employers should remind employees that promoting health and safety in the workplace is a shared responsibility, encourage employees to report symptoms of communicable illness or contact with infected people, and to stay home if they are unwell.
Consider what information will be communicated to employees. There are numerous public resources available addressing COVID-19 risks, symptoms, prevention, and/or treatment, including documents published by the Ontario Ministry of Health; the Government of Canada; and the World Health Organization.
Consider who will communicate the information and whether the person communicating the information is going to be regarded as credible and knowledgeable about the subject matter.
Consider how information will be communicated. General bulletins or online resources, such as those linked above, can be communicated via email to employees. Additionally, Employers should consider the use of visual displays at entrances to the workplace and in other prominent places that communicate prevention measures to employees, clients, and participants who are physically attending the workplace.
We have found that it can be very helpful for an employer, if possible, to engage an expert on infectious diseases to educate employees about COVID-19 and to answer their questions about it. However, employers should also consider the risks associated with large in-person meetings. Instead, an information session might be held via teleconference to avoid an in-person meeting. This would ensure employees can receive the information while avoiding unnecessary contact.
Employers should consider what changes need to be implemented to promote the prevention of viral transmission in their particular workplace. Some examples of these measures include:
Consider whether existing workplace cleaning and sanitation procedures can be enhanced to limit the risk of transmission. For example, employers can increase cleaning frequency of high traffic areas such as kitchens, break rooms, meeting rooms and of doorknobs. Consider providing alcohol wipes and encourage employees to frequently clean their workspaces including phones, keyboards, and desktops.
Providing Appropriate Sanitation
Ensure that soap and hot water are readily available for handwashing and provide alcohol based sanitizer in areas such as meeting rooms and reception areas. Provide adequate supplies of tissue and closed bins for disposal of them.
Consider limiting non-essential employee movement between multiple work locations. Limiting movement between locations may help to prevent the potential transmission of the virus across worksites. Such a policy will also make it easier to identify a chain of potential transmission in the case of workplace exposure to the virus.
Consider limiting the number of in-person meetings, particularly with large groups of employees, clients, and/or other participants. Consider alternatives for non-essential in-person meetings, such as teleconferences. Where in-person meetings are required, use prevention strategies such as limiting group size and avoiding non-essential contact (such as handshaking).
Consider curtailing all non-essential international business travel. At the very least, remain up to date on travel advisories to affected countries and consider limiting all non-essential business travel to affected regions.
Reporting International Travel
Consider requiring employees who have been exposed to the virus and those returning from international travel or parts of Canada where there have been outbreaks of the virus to report by phone to a supervisor or manager before returning to the workplace. This will provide the workplace parties an opportunity to develop individualized plans for safe return to work, where necessary. Consider modifying policies to protect employees from loss of pay while their situation is assessed.
Employers should be aware that, depending on the circumstances, unilaterally imposing mandatory quarantines (or other measures that may be perceived as punitive) on employees who are suspected of exposure to COVID-19 or who are returning from travel to affected regions may raise Human Rights Code, constructive dismissal, and other employment-related legal concerns. Employers should take care to ensure that prevention policy measures are implemented in a reasonable and equitable manner.
Practical Considerations for Managing a Crisis
Employers should consider preemptively preparing a crisis response plan in case of a widespread viral outbreak or exposure in the workplace. In the case of workplace exposure, employers should be prepared to respond immediately and outside of regular working hours.
Recognize that if COVID-19 comes to your workplace you are going to be very busy. Consider what you can do in advance to make it easier to deal with the situation.
Division of Responsibility
Employers should clearly assign and communicate roles, responsibilities, and decision-making functions to key employees in the event of a crisis. Employers may want to consider in advance who is responsible for:
- Communicating with Public Health;
- Communicating with the Ministry of Labour;
- Communicating with employees;
- Communicating with clients, participants, customers, etc.;
- Ensuring that work is covered where employees are sick, quarantined, or otherwise cannot attend the workplace;
- Public Relations;
- Making and implementing policy changes;
- Closing worksites; etc.
Employers should ensure they have up to date after hours contact information for key employees, including health and safety representatives, senior managers, and senior union officials. Employers should also ensure they have up to date contact information for all employees to ensure that affected employees can be notified of possible exposure as soon as possible. Our experience has been that news of COVID-19 showing up at work does not necessarily reach an employer during normal business hours and it is important to be able to respond on short notice , whether day or night, weekday or weekend.
In addition, during the SARS outbreak, many employers started recording the name and contact information of each person who came on their premises along with the date and time of entry and exit. We suggest employers revive this practice. If an employer finds out Saturday morning that an infected person was present at one of its premises on Wednesday it will not want to be in a position of having to figure out who else was there and how to contact them, along with everything else that it will be dealing with.
Dealing with An Employee Who Shows Up or Becomes Ill at Work
If possible, each workplace should have a designated and separated place where a sick employee or other person can immediately be separated from other people who may be present, and steps taken to minimize the number of people who have contact with the sick individual and the degree of contact before the sick person leaves the premises.
Attendance and Pay Policies
Employers should consider preemptively establishing policies to address the payment of affected employees and their attendance at work. When developing such policies, it is prudent for employers to remember that COVID-19 is a public health concern, and to consider what kinds of behaviours they want to reward.
- Sick Employees: Employees who contract COVID-19 should be encouraged to access workplace benefits such as sick days or short-term disability leave. Where employees do not have access to such benefits, employers may wish to consider providing temporary paid leaves of absence from work to disincentivize the attendance of infected employees at work. Consideration should also be given to providing some form of leave for employees who are caring for infected family members and minimizing the economic impact of doing so on the employee.
- Quarantined Employees: Employees who are not sick but who have been placed under quarantine by Public Health Ontario may not be eligible for benefits. Such employees may be permitted to use vacation days, lieu days, or other benefits to provide income coverage during the quarantine period. Employers may wish to consider providing paid leave to employees who are required to be in quarantine, especially if they are in quarantine as a result of having been in contact with an infected person while they were at work.
- WSIB Benefits for Employees Infected in the Course of Employment: To date, the Workplace Safety and Insurance Board (WSIB) has not released a statement about workplace safety and insurance claims for COVID-19. However, during the 2003 Severe Acute Respiratory Syndrome (SARS) outbreak, the WSIB granted workplace safety and insurance benefits to employees who contracted SARS in the course of their employment. Notably, the WSIB did not grant benefits to employees who were quarantined because of possible workplace exposure but who did not contract the virus.
Employers should remain apprised of the changing landscape with respect any outbreak and should be prepared to be flexible in their response.
Although there are exceptions, most workers in Ontario have a right under the OHSA to refuse to work, or to do particular work, where they have reason to believe that the physical condition of the workplace is likely to endanger themselves.
For some occupations, such as police, firefighters, correctional and hospital workers this right may not be exercised where the worker’s refusal to work would directly endanger the life, health or safety of another person.
Under the OHSA, a work refusal triggers an obligation for the worker to promptly report the circumstances of the refusal to her employer or supervisor, who is then required to investigate the refusal in the presence of both the worker and a health and safety representative or a member of the joint health and safety committee. If the concerns cannot be resolved and the worker continues to refuse to work following this investigation, a Ministry of Labour Inspector must be notified. The Inspector will investigate the work refusal in consultation with the employer and the worker and will issue a decision in order to resolve the impasse.
Employers need to prepare for the possibility that a worker may refuse to work if he believes that workplace conditions expose him to a greater risk of contracting COVID-19. Following the 2003 outbreak of SARS, workers in the travel, airline, and other industries engaged in similar work refusals under the Canada Labour Code. A number of such cases involved allegations that the employer’s failure to provide personal protective equipment, such as masks and gloves, contributed to a greater risk of SARS infection in the workplace. We have now seen situations related to COVID-19 where workers have been reluctant to report to work at all due to fear of being exposed to the virus. Such cases emphasize the importance of taking proactive measures to educate employees about COVID-19 and taking reasonable steps to prevent viral transmission in the workplace. However, regardless of the measures an employer takes, work refusals may still occur.
If a worker does not come to the workplace or does not follow the process for a work refusal under the OHSA, it is possible that the refusal will not ultimately be determined to be a valid work refusal under the OHSA. Nonetheless, there are significant risks attached to reacting in a knee jerk fashion and treating the refusal as a disciplinary matter and in such cases an employer is well advised to consult legal counsel. If an employee refuses to attend work due to concerns related to the presence of COVID-19 in the workplace, it may be preferable to remain in contact with the employee and attempt to allay his or her concerns by providing further relevant information, including information about the workplace health and safety measures that exist to prevent the transmission of the virus. The employer may also encourage the worker to attend another workplace location for the purpose of investigating her concerns with one or more health and safety representatives or joint health and safety committee members in accordance with the OHSA work refusal provisions, and then, if need be, calling in the Ministry of Labour if the refusal cannot be resolved. Employers who have COVID-19 visit their workplace will have a multitude of issues to deal with while they struggle to operate the organization with possibly limited staff and external resources at hand. Adding labour relations strife to the mix is unlikely to be helpful or productive.
We will continue to monitor workplace related COVID-19 developments and provide further updates on this issue.