The H1N1 Virus, or swine influenza, outbreak is obviously of great concern for B.C. employers. 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 the swine flu have been ordered by their doctors or public health officials to quarantine themselves for a number of days. As the disease continues to spread in the days and weeks to come, it is likely that your workplace may come in contact with someone who has, or may have, the swine influenza.

The purpose of this Alert is to outline some of the legal obligations that provinciallyregulated employers in B.C. have with respect to contagious diseases, and to provide answers with respect to common questions you may have about dealing with this outbreak.

General Information on Swine Influenza

General information about the H1N1 Virus (swine influenza) can be found at the following websites:

General Precautions

Most authorities provide the following precautions for safeguarding everyone’s health:

  1. Stay home if you are sick or have influenza symptoms (sudden onset of respiratory illness, fever greater than 38.0 degrees Celsius and cough, combined with either sore throat, joint aches, muscle aches or weakness).
  2. Avoid close contact with people who are sick.
  3. Cover your mouth and nose with a tissue when coughing and sneezing, or alternatively, cough and sneeze in your arm or sleeve.
  4. Wash your hands thoroughly with soap and warm water or use hand sanitizers, and wash/sanitize your hands frequently to protect yourself from getting sick.
  5. Avoid touching your eyes, nose or mouth.
  6. Talk to a health professional if you experience flu-like symptoms, or call Health Link BC for non-emergency health advice at 811.

Employers should ensure that they alert employees as to the symptoms and advise employees of these general preventative measures.

Legal Obligations

Any illness in the workplace may raise issues involving health and safety, employment standards, human rights and privacy. In addition, employers and employees may have obligations under health legislation. The following are the general legal requirements for provincially-regulated employers in B.C.

Occupational Health and Safety

Under Part 3 of the Workers Compensation Act both employers and employees are responsible for ensuring that the workplace is safe. Every employer must ensure the health and safety of all workers working for that employer, and any other workers present at a workplace at which that employer’s work is being carried out.

In addition to these duties for employers, the Workers Compensation Act requires workers to take reasonable care to protect the worker’s health and safety and the health and safety of other persons who may be affected by the worker’s acts or omissions at work, and to ensure that the worker’s ability to work without risk to his or her health or safety, or to the health and safety of any other person, is not impaired by alcohol, drugs or “other causes”. “Other causes” may include a health risk caused by exposure to the H1NI Virus.

The Occupational Health and Safety Regulation requires employers to implement an exposure control plan as specified by section 5.54 of the Regulation in situations where a worker is at risk, or may reasonably be expected to be at risk, of harmful contact with a biological agent. WorkSafeBC has specified that this section would apply to the H1N1 Virus. An exposure control plan must include a statement of purpose and responsibilities, identify the workers at risk, assess the degree of risk, and identify how that risk will be controlled through safe work practices, personal protective equipment, and engineering controls.

Section 3.12 of the Regulation provides that a person “must not carry out or cause to be carried out any work process or operate or cause to be operated any tool, appliance or equipment if that person has reasonable cause to believe that to do so would create an undue hazard to the health and safety of any person.” A worker who refuses to carry out a work process on this basis must immediately report the circumstances of the unsafe condition to his or her supervisor, who must immediately investigate the matter and remedy the unsafe condition.

Employment Standards Act

There is no requirement for sick leave in the Employment Standards Act. The Act requires an employer to provide an employee with up to five days of unpaid leave for that employee to meet responsibilities related to the care, health or education of a child in the employee’s care or the care or health of another member of the employee’s immediate family (emphasis added). It does not cover situations where an employee is ill. An employer must give an employee any protected leave to which they are entitled, and must not terminate or change a condition of employment as a result of the employee’s leave.

Under the Employment Standards Act, if an employee is sent home by an employer after reporting for work, he or she is entitled to be paid for a minimum of 2 hours, unless the employee is unfit to work or fails to comply with Part 3 of the Workers Compensation Act. If scheduled for more than 8 hours, the employee must be paid for 4 hours. If the employee works longer than these minimum periods before being sent home, he or she is entitled to be paid for the actual time worked.

Employers should also be aware that a significant alteration in hours of work resulting from emergency conditions 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 work longer hours, and/or work evenings or weekends.

Layoffs

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 Employment Standards Act. Employees may be laid off for a temporary period of time without triggering any obligation to provide termination pay under the Employment Standards Act. 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 Employment Standards Act.

It should also be noted that, while the Employment Standards Act 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 lay off 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.

Human Rights Code

The Human Rights Code prohibits discrimination and harassment in employment on the basis of (among others) race, colour, ancestry, and place of origin. 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 the swine flu virus or associated with people who may have the virus. For example, employers should not send an employee home from work 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, colour, ancestry or place of origin, is unlawful and contrary to the Human Rights Code.

The Human Rights Code also prohibits discrimination on the basis of disability. Diseases and other medical conditions such as the 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 who have or who have been exposed to the swine flu virus. 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.

Privacy and Personal Information

Employees who have contracted the swine flu, or have been exposed to the virus, may have legitimate concerns about whether this information is shared with co-workers. Information relating a person’s medical condition would likely be considered “personal information” under the B.C. Personal Information Protection Act. Generally, under the Act, organizations may collect, use or disclose “personal information” only by consent of the individual or if the information would fall into several enumerated exceptions.

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, and any other applicable health legislation (see section 9 of the Public Health Act, discussed below).

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

Public Health Act

The Public Health Act came into force March 31, 2009 and prescribes duties to “operators” involved in “regulated activities” to ensure employees are adequately trained and sufficiently equipped to recognize, prevent and respond to health hazards that may arise when engaging in a regulated activity. “Communicable disease” is defined in the Public Health Act as “an illness caused by an infectious agent or its toxic products”.

Section 9 of the Public Health Act states that a person may collect, use or disclose personal information for the purposes of reporting disease, health hazards and other matters if it is necessary to identify an individual who needs or is receiving health services. The section also states that a person may collect, use or disclose personal information to prevent or manage chronic conditions at the individual or population level and in order to assess and address the risk to public health.

Sections 10 and 11 of the Public Health Act requires health professionals and “prescribed persons” who are aware that a “prescribed health hazard” exists to promptly report the nature of the health hazard, location, its cause and its source, identity of the persons involved and those who may be adversely affected. This obligation to report only applies to these “prescribed persons”. While “prescribed person” is not defined in the Public Health Act or its related regulations at this time, it is likely that health care professionals and other similar professions will be included.

In addition, there are specific requirements for operators of food premises under the Food Premises Regulation. Section 7 of the Regulation states that an operator of food premises must immediately notify a health official if any circumstances exist in the food premises that may cause a health hazard, while section 22 provides that an operator of food premises must not permit any person suspected to suffer from or suspected to be the carrier of a disease communicable through food to come into contact with any food, equipment, utensils or food contact services on the food premises.

Workers Compensation Insurance

Section 6 of the Workers Compensation Act provides that employees are entitled to compensation if they suffer from an “occupational disease” and are disabled from earning full wages at their work, and if the disease is “due to the nature of any employment in which the worker was employed.”

Employees who were infected with swine flu in the course of their employment may be entitled to the usual benefits and services offered by WorkSafeBC under the Workers Compensation Act. As with all claims under the Act, a claimant’s entitlement will be decided on a case-by-case basis. Employers should ensure that they complete the appropriate forms and submit these forms to WorkSafeBC if they become aware of an employee being infected with the swine flu virus.

Employment Insurance

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

  • a period of quarantine had been imposed or recommended on the claimant by public health official; or
  • 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. Normally there is a two-week waiting period for sickness benefits. This waiting period was removed in SARS-related cases. In addition, normally there was 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.

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.

Common Questions

Q: My employee has just returned from a holiday in Mexico and appears to have symptoms. What can I do?

This employee should be sent home for quarantine and advised to contact a physician.

Q: What if an employee refuses to work because he or she is worried about coming in contact with an infected person?

If an employee believes their work place is unsafe they may in some circumstances have a right to refuse work under s.3.12 of the Occupational Health and Safety Regulation.

Q: Do I have to pay employees for the time they are away sick, or if I send them home for quarantine?

There are no obligations for an employer to provide paid sick leave in the B.C. Employment Standards Act. In practice, many employers provide a certain number of paid sick days or allow employees to take unpaid time off when they are ill.

Q: One of my employees is looking after a family member who is ill. Do I have to let them take time off work?

Yes. The Employment Standards Act allows an employee to take up to 5 unpaid days of time off as family responsibility leave to care for members of his or her immediate family.

Q: Should employers have an emergency response plan in place?

Yes, employers should have an emergency response team in place and a plan for response in a pandemic situation. It is also important to determine the person responsible for issuing communications. In addition, if an employer is likely to have workers at risk of harmful contact with the H1N1 virus, it must implement an exposure control plan as required by the Occupational Health and Safety Regulation.