By Natasha Jategaonkar and Colin  Dougherty. Firm: Mathews, Dinsdale & Clark LLP

This article sets out some of the emerging issues in relation to the novel coronavirus outbreak and provides guidance to employers as to how best to respond.

A novel form of coronavirus has been identified by the World Health Organization (WHO) and confirmed cases have been reported in both British Columbia (BC) and Ontario. The virus has been declared a global health emergency by WHO. At present, the Public Health Agency of Canada has assessed the public health risk associated with coronavirus as ‘low’ for Canada, but that risk will be continually reassessed as new medical and scientific information becomes available. As new information is released, many employers are considering how the virus may affect their workplaces.

Leave of absence

Employees who become ill or who have a family member who falls ill may be entitled to an unpaid leave of absence under the applicable employment standards legislation in each province. Employees may also have a contractual entitlement to sick leave.

The British Columbia Employment Standards Act provides up to five days of unpaid family responsibility leave per year for the care, health or education of a member of an employee’s immediate family. Longer leaves are available in the case of a serious illness of a family member: up to 27 weeks of compassionate care leave where the family member has a serious medical condition with a significant risk of death, and up to 16 or 36 weeks of critical illness or injury leave, depending on the age of the family member, for the employee to provide care or support to the family member.

Under the Alberta Employment Standards Code, eligible employees can take up to five days of unpaid personal and family responsibility leave in each calendar year, either for their own health or to meet responsibilities in relation to a family member. An unpaid leave of up to 16 weeks is available for long-term illness and/or where quarantine is medically required. Unpaid critical illness leave to care for a family member (up to 36 weeks if the family member is a child and 16 weeks if the family member is an adult) is also available.

In Ontario, the Employment Standards Act provides that an eligible employee is entitled to take three days of unpaid sick leave for personal illness, injury, or medical emergency per calendar year. An eligible employee may also take up to three days of unpaid family responsibility leave per calendar year because of an illness, injury, medical emergency, or urgent matter relating to his or her family member. Unpaid critical illness leave of up to 37 weeks is available to care for a critically ill minor child and 17 weeks for a critically ill adult.

In Nova Scotia, the Labour Standards Code provides employees with entitlements of up to three days of unpaid sick or family responsibility leave per year. The leave may be used for medical or similar appointments or to care for an ill family member. For employees who need to care for a seriously ill family member, up to 28 weeks is available for unpaid compassionate care leave. An unpaid critical illness leave of up to 37 weeks is available to care for a minor with a life-threatening illness or 16 weeks to care for a critically ill adult.

Workplace safety and the right to refuse unsafe work

If an employee is refusing to work due to a fear of contracting illness in the workplace, the employer must respond in compliance with their legal duties under occupational health and safety (OHS) legislation. All jurisdictions in Canada have legislation allowing workers to refuse work they believe is unsafe, and an employer is prohibited from taking disciplinary action against an employee on this basis.

Employers are generally required to investigate the employee’s concern and attempt to resolve the issue within the workplace. Where no resolution is reached, the employer’s decision may be investigated by the responsible government authority in that jurisdiction.

Employers faced with a refusal to perform work based on concerns related to coronavirus should work with their workplace health and safety committee or representative, if applicable, and seek the advice of experts for medical information. In previous circumstances of disease outbreak, tribunals have made decisions regarding refusals of unsafe work based on the available scientific evidence regarding disease transmission and the particular circumstances of the workplace and employees in question.

For example, WorkSafeBC declined to issue orders against an employer who concluded the influenza virus did not create unsafe working conditions for teachers working in a classroom. The Canada Appeals Office concluded that an employer had contravened the Canada Labour Code for failing to consult with its workplace health and safety committee on its investigation of the workplace risk of contracting SARS in March 2003. Even though no ‘danger’ existed for two airline ticket agents who refused to work, the Code required the employer to work with the committee in responding to their concerns. While there may not be decisions from every jurisdiction respecting refusals of unsafe work in the context of disease outbreaks, these two examples provide useful guidance for employers.

Employers in health care and/or emergency services

Employers in health care or emergency services industries must take adequate steps to ensure the safety of employees, in accordance with guidelines for health professionals treating potential cases of novel coronavirus. Employers in these industries may be responsible for providing appropriate personal protective equipment (PPE), such as gloves, gown, masks, eye protection, and/or N95 respirators. In 2003, the Ontario Ministry of Labour upheld the work refusal of a nurse who refused to care for a SARS patient without being fitted with the required respiratory equipment. Employers should monitor advice and guidelines issued by responsible authorities to ensure their practices are up to date.

Employers in health care or emergency services industries should also be aware that the ability of their workers in these industries to refuse work on the basis of safety issues may be more limited (subject to the workers receiving the appropriate PPE). In Ontario, the legislation expressly states a worker cannot refuse work where the situation in question is ‘inherent in the worker’s work or is a normal condition of the worker’s employment’ or ‘when the worker’s refusal to work would directly endanger the life, health or safety of another person’. Even where the applicable legislation does not expressly refer to the ‘normal condition’ of a worker’s employment, the normal expectations of a worker’s position would probably be taken into consideration by the tribunal in question. In BC, for example, the guidelines for what is meant by an ‘undue hazard’ for purposes of refusal of unsafe work indicate that the hazard must be ‘unwarranted’ or ‘inappropriate’ in order for the refusal to be justified.

Discrimination and harassment

Employers are reminded of their obligations under applicable human rights and other legislation to keep workplaces free from discrimination and harassment. Human rights legislation prohibits discrimination and harassment in employment on the basis of disability, among other protected grounds. While no decisions have been issued regarding the status of novel coronavirus as a ‘disability’ for this purpose, the Ontario Human Rights Commission issued a statement in April 2003 indicating that the ground of disability would include SARS, for example, and that differential treatment of people who had or were perceived to have SARS, without bona fide medical evidence, could constitute discrimination under the legislation.

Human rights legislation also prohibits discrimination on the basis of ethnicity, race, ancestry, and place of origin (the specific protected grounds vary with jurisdiction). Employers have an obligation to avoid assumptions and stereotypes based on these grounds that could have an adverse effect on employment. Many people have inappropriately associated the coronavirus with members of Asian communities because of the travel restrictions to and from the city of Wuhan, China, and the travel advisories issued by Canadian authorities. Differential treatment in the workplace that is based on a perceived risk of disease related to race or ethnicity or another protected ground could constitute discrimination and should be avoided.

Privacy issues

Employers are reminded that employee personal information, including health information, should be kept confidential in the workplace.

Both BC and Alberta have enacted legislation titled the Personal Information Protection Act that governs the collection, use and disclosure of personal information by organisations in the private sector, including health information about employees. Under both pieces of legislation, an employer can collect, use and disclose information about an employee’s health, as long as the collection, use, or disclosure is for the purposes of managing the employment relationship, is ‘reasonable’ in the circumstances, and the employee is given notice. The employee’s consent is not required, though it is a recommended practice to obtain consent before collecting, using, or disclosing sensitive information that may be related to an employee’s health.

For provinces such as Ontario and Nova Scotia that have not enacted privacy legislation governing the private sector, the federal Personal Information Protection and Electronic Documents Act governs the collection, use and disclosure of personal information for federally-regulated employers in the private sector. Federally-regulated employers in the private sector in those provinces may only collect, use or disclose personal information relating to employees in limited circumstances (or must seek consent before doing so).

Personal protective equipment (PPE) and preventive measures

All employers in Canada have a duty to take steps to protect the health and safety of workers. Under Ontario’s OHS legislation, for example, employers must ‘take every precaution reasonable in the circumstances’ for the protection of a worker. Currently, the WHO recommendations for the general public, which would generally include employers outside the health care and emergency services industries, do not indicate any requirement for specialized protective equipment. Standard measures, such as frequent handwashing, proper use and disposal of tissues, and avoiding close contact with people who are sick, are recommended.

If faced with a request for protective equipment from employees, an employer’s response should be guided by the industry and position in which the employee is working and the applicable legislation and guidelines. Where protective equipment is not required or advised, an employer can take the opportunity to educate their workforce on appropriate prevention efforts and support employees by implementing measures to reduce the spread of illness.

Possible further developments

In the event that novel coronavirus rises to the level of ‘emergency’, as declared by the Chief Public Health Officer and/or local authorities in affected provinces or territories, employers should be aware that they may be subject to additional duties under statutes in their jurisdiction. Every jurisdiction in Canada has legislation in place for emergency measures and some specifically contemplate public health emergencies (e.g. Alberta’s Public Health Act and Ontario’s Health Protection and Promotion Act).

BC’s Public Health Act confers upon the provincial health officer special emergency powers regarding the reporting of personal information, which would apply in the event an emergency is declared. During an emergency, those powers would apply notwithstanding the provincial privacy legislation.

In Ontario, if an emergency is declared under the Emergency Management and Civil Protection Act, the Employment Standards Act provides that an employee is entitled to an unpaid leave of absence if he or she will not be performing her employment duties due to the emergency. This could occur because of an order made by the responsible authority under statute or by regulation. It may also occur because he or she is needed to provide care or assistance to a family member during the emergency.

Under Nova Scotia’s Labour Standards Code, unpaid emergency leave is available to employees who are unable to work due to the declaration of an emergency and/or a directive or order from a medical officer of health. Unpaid emergency leave is also available where an employee needs to care for a family member who is affected by the declaration of an emergency and/or a directive or order from a medical officer of health.

Practical considerations for employers

1. Encourage good health practices among employees. Employees who are sick or who have symptoms associated with illness should be encouraged to exercise good judgment and stay home in accordance with workplace policies. Routine measures to reduce the spread of everyday illness at the workplace, such as handwashing or hand sanitiser stations and availability of tissues, should be implemented if not already present.

2. Communicate necessary information to employees. Employers should ensure that policies regarding sick leave and caregiver leave are communicated to employees. Employers should also assist employees with locating up-to-date and reliable information about the coronavirus, including where to receive medical care if needed.

3. Prepare for further developments. Employers should ensure they remain up-to-date on the latest information and developments regarding coronavirus, and consider policies that may need to be implemented in the event the disease outbreak escalates. Measures such as employee ‘work from home’ strategies, videoconference instead of face-to-face meetings, or staggering shift starts and breaks to reduce the number of people in the workplace at a time may be advisable in those circumstances. Continuity plans, in the event essential employees fall ill or require leave to care for sick family members, may also need to be implemented. Employers are advised to review and revise their emergency preparedness plans as needed.

4. Stay up to date. For updates on the current status of coronavirus, please refer to: