The swine influenza (“swine flu”) outbreak raises a number of issues for Ontario employers and employees. In some instances, employees who are sick or caring for sick family members must take time off work. In other instances, employees who may have been exposed to swine flu have been ordered by their doctors or public health officials to quarantine themselves for a number of days.

This alert summarizes the rights and obligations of employers and employees with respect to the swine flu, under various employment-related statutes. This alert also provides guidelines for protecting the workplace and employees from the spread of swine flu.

We note that the swine flu situation continues to change rapidly. Employers and employees are encouraged to contact the Ontario Ministry of Health and Long Term Care, the Toronto Public Health Department, or Health Canada for further information and updates.

Employment Standards Act, 2000

Emergency Leave

For employers who regularly employ 50 or more employees, the emergency leave provisions of the Employment Standards Act, 2000 (“ESA”) will apply when an employee cannot attend work due to swine flu-related circumstances.

Emergency leave is unpaid, job-protected leave of up to ten days each calendar year. Emergency leave may be taken in the case of personal illness, injury or medical emergency of the employee. This leave may also be taken for illness, injury, medical emergency, death or other urgent matters concerning certain relatives of the employee. For example, if an employee’s child’s school is closed due to the swine flu situation, this would be considered a medical emergency or urgent matter concerning the employee’s child, and the employee will be entitled to take emergency leave.

Employers are prohibited from penalizing an employee because he or she takes emergency leave.

Emergency Leave for Declared Emergencies

In response to the SARS crisis, under the Emergency Statute Law Amendment Act, 2006, the Emergency Management and Civil Protection Act was amended to include provisions regarding the declaration of an emergency in Ontario. Specifically, section 7.0.1 now provides that the Lieutenant Governor in Council or the Premier may declare that an emergency exists throughout Ontario, or in any part of Ontario. An order declaring that an emergency exists may be made where:

(a) there is an emergency that requires immediate action to prevent, reduce or mitigate a danger or major proportions that could result in serious harm to persons or substantial damage to property; or

(b) one of the following circumstances exists:

(i) the resources normally available to a ministry of the Government of Ontario or an agency, board or commission or other branch of the government, including existing legislation, cannot be relied upon without the risk of serious delay;

(ii) the resources referred to in subparagraph (i) may be insufficiently effective to address the emergency; or

(iii) it is not possible, without the risk of serious delay, to ascertain whether the resources referred to in subparagraph (i) can be relied upon.

The ESA was also amended to include provisions regarding emergency leave for declared emergencies. In the event that an emergency is declared, under section 50.1 of the ESA, an employee would be entitled to a leave of absence without pay, if the employee will not be performing the duties of his or her position because of an emergency declared, and where the order declaring the emergency applies to the employee.

The employee is entitled to take a leave of absence until the day the emergency is terminated or disallowed. Further, as with all protected leaves under the ESA, during the leave, the employee will be entitled to continue to participate in any benefit plan.

Hours of Work and Overtime

Employees who have been quarantined at their place of work, and cannot leave the facility, are entitled to be paid for any work they perform. The regular hours of work and overtime provisions of the ESA apply. According to these provisions, an employee cannot be required to work more than eight hours in a day or 48 hours in a week, and overtime pay is payable after 44 hours of work in a week. Employees who have been quarantined at their place of work, and cannot leave the facility, are not entitled to be paid if they are merely on call, or are not actually working.

An employer who has several employees under quarantine, or is otherwise adversely affected by the swine flu situation, can require employees to work more than the above hours of work, without the employee’s consent, if:

(c) the employee works only so far as is necessary to avoid serious interference with the ordinary working of the employer’s establishment or operations; and

(d) the employee is required to work for one of the following reasons:

(i) to deal with an emergency;

(ii) something unforeseen occurs that could interrupt the continued delivery of essential public services (such as those in hospitals), regardless of who delivers these services;

(iii) something unforeseen occurs that could interrupt continuous processes or seasonal operations; or

(iv) urgent repair work to the employer’s plant or equipment is needed.

Having said that, employers should be aware that a significant alteration in hours of work may constitute, or at the very least, contribute to a finding of constructive dismissal. Employees who are accustomed to working normal business hours may not be required to accept positions where they would be required to longer hours, and/or work evenings or weekends.

Layoff

If an employer is unable to provide employees with work due to the swine flu situation, the employer may lay off some or all of its employees pursuant to the ESA. Employees may be laid off for a temporary period of time without triggering any obligation to provide termination or severance pay under the ESA. However, if the employee is laid off for longer than the temporary period specified in the legislation, his or her employment will be deemed to be terminated, thereby triggering the termination and severance pay provisions of the ESA.

It should also be noted that, while the ESA allows for unpaid temporary layoffs, at common law, constructive dismissal issues may arise when a non-union employer institutes a temporary layoff. An employer’s decision to temporarily layoff an employee could well be viewed by the employee as a fundamental change in the employment relationship. Unless an express provision in an employment contract provides for the possibility of a temporary layoff, or employer-initiated breaks in service are customary in an industry or a particular company, there is a risk that an employee may claim that he/she had been constructively dismissed. That being the case, an employer should exercise caution when deciding to layoff employees. In the event that an employer decides to layoff employees, the employer should also provide employees with a return to work date, in order to minimize the risks of constructive dismissal claims.

Workplace Safety and Insurance Act, 1997

Section 13(1) of the Workplace Safety and Insurance Act, 1997 provides that employees are entitled to compensation for “personal injury or illness arising out of and in the course of employment”. In addition, section 15(1) of the Workplace Safety and Insurance Act, 1997 provides compensation where “a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged”.

Workers with symptoms of swine flu, who were infected in the course of their employment, may be entitled to the usual benefits and services available under the Workplace Safety and Insurance Act, 1997. However, as with all claims under the Workplace Safety and Insurance Act, a claimant’s entitlement will be decided on a case by case basis.

It should also be noted that the Workplace Safety and Insurance Act, 1997 was also amended under the Emergency Statute Law Amendment Act, 2006. Where an employee assists in connection with an emergency declared by either the Lieutenant Governor in Council or the Premier under section 7.0.1 of the Emergency Management and Civil Protection Act, for the purposes of the Workplace Safety and Insurance Act, 1997, the Crown will be deemed to be the employer of the employee.

Occupational Health and Safety Act

Under the Occupational Health and Safety Act, both employers and employees are responsible for ensuring that the workplace is safe.

Employees who believe that the circumstances at work are unsafe are encouraged to discuss their concerns with the employer or the joint health and safety committee, if there is one. Generally, a satisfactory solution can be found by working collaboratively. If a solution can’t be found, and the employee continues to fear for his or her safety, the employee should initiate the work refusal process under the Occupational Health and Safety Act.

The right to refuse work is limited for certain types of employees, including those who have a responsibility to protect public safety, where the danger in question is a normal part of the job or if the refusal would endanger the life, health or safety of another person. These employees include police officers, firefighters, those employed in correctional institutions, and health care workers. Further information about the work refusal process can be found at: http://www.gov.on.ca/LAB/english/hs/ohsaguide/ohsag_7.html.

Human Rights Code

Race, Ancestry, Place of Origin, Colour, Ethnic Origin, Citizenship, Creed

The Human Rights Code (the “Code”) prohibits discrimination and harassment in employment on the basis of (among others) race, ancestry, place of origin, colour, ethnic origin, citizenship, and creed.

The swine flu outbreak is believed to have originated in Mexico. However, employers should not assume that because someone belongs to the Mexican-Canadian community, he or she has been exposed to swine flu or associates with people who may have swine flu. Similarly, employers should not send an employee home from work simply because his or her place of origin is Mexico. Barring someone from a public place, place of employment or refusing services because of their race or place of origin is unlawful and contrary to the Code.

Disability

The Human Rights Code also prohibits discrimination on the basis of disability. Diseases and other medical conditions such as swine flu fall within the definition of “disability”. Accordingly, different treatment of persons who have or are perceived to have swine flu, for reasons unrelated to health and safety precautions prescribed by medical or public health officials, is prohibited under the Code.

In most cases, employers will also have a duty to accommodate employees with swine flu or who have been exposed to swine flu. Suitable accommodation will vary depending on the circumstances, but could include allowing the employee to take time off work, and/or allowing the employee to work from home, if possible.

Employment Insurance Act and Regulations

During the SARS outbreak in 2003, the Employment Insurance Regulations was amended to respond to the needs of people affected with SARS. The amended Regulations applied to any SARS-related claims submitted where:

(e) a period of quarantine had been imposed or recommended on the claimant by a public health official, or

(f) the claimant was asked by an employer, medical doctor, nurse or other person in authority to quarantine himself/herself.

The amended Regulations also contained two significant changes.

(g) Normally, there is a two-week waiting period for sickness benefits. This waiting period was removed in SARS-related cases.

(h) Normally, there is a requirement that claimants for sickness benefits produce a medical certificate issued by a doctor or other medical professional. However, individuals who were sent home by their employer or otherwise quarantined due to possible exposure to SARS were not always able to produce a medical certificate. Accordingly, the requirement to produce a medical certificate was removed in SARS-related quarantine cases.

It remains to be seen whether similar provisions will be enacted to deal with the swine flu.

It is also worth noting that on April 29, 2009, the House of Commons gave approval in principle to a Bloc Quebecois bill that would eliminate the waiting period for employment insurance benefits. If passed, it would mean that workers would be eligible for benefits immediately. To become law, the bill must pass another vote at its third reading and then be approved by the Senate. Similar legislation have been introduced in the past, but has always failed to pass.

Workplace Benefits

If an employee is absent due to swine flu, related symptoms or quarantine, the employer should consider allowing the employee to use any available sick days. The employee may also be able to take advantage of any short term disability benefits. If there are no available sick days or short term disability benefits, or the employee does not wish to use them, the employer should consider allowing the employee to use vacation time, days off in lieu of overtime, or a leave of absence without pay.

Privacy Issues

Employees who have contracted swine flu, or been exposed to swine flu, may have legitimate concerns about whether this information is shared with co-workers. The release of personal information raises complex legal issues. There is a delicate balancing required between the employee’s right to privacy with respect to medical information, the employer’s interest in maintaining a safe work environment, and co-workers’ interests in protecting their own health.

Before releasing any information about an employee’s health, employers should carefully consider all of these factors, and we also encourage employers to seek legal advice.

Workplace Protection Measures

Employers should take the following actions to ensure that swine flu does not spread in the workplace:

  • if an employee is exhibiting symptoms, he or she should be denied access to the workplace, sent home for quarantine, and advised to seek medical treatment;
  • if an employee is asymptomatic but has been in direct contact with someone who is symptomatic, he or she should also be denied access to the workplace, sent home for quarantine, and advised to seek medical advice;
  • employees should be encouraged to wash their hands frequently;
  • it may be prudent to provide supplies such as disinfectant wipes to clean work surfaces or counters periodically, though there does not appear to be hard evidence that such measures are effective against swine flu; and
  • employers should keep themselves apprised of all recommendations made by Ontario Ministry of Health and Long Term Care, Health Canada, and the Toronto Public Health Department.

Please note that the information contained in this alert may, in some cases, be affected or altered by the terms of any applicable collective agreement or employment contract. Where there is a conflict or uncertainty, we encourage you to seek legal advice.