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 flu.

The purpose of this Alert is to outline some of the legal obligations that federallyregulated 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 symptom.

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, labour standards, human rights and privacy. In addition, employers and employees may have obligations under health legislation. The following are the general legal requirements for federally-regulated employers in B.C.

Occupational Health and Safety

The Canada Labour Code (the “Code”) and the Canada Occupational Health and Safety Regulations require employers to ensure that the safety and health at work of every employee is protected. Employees also have duties under the Code for ensuring that the workplace is safe.

The Code provides that where an employee, while at work, has reasonable cause to believe that a condition exists that constitutes a danger to the employee or a co-worker, the employee may refuse to work. Employees who reasonably 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 may initiate the work refusal process under the Canada Labour Code.

It should be noted that 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 (as opposed to another employee).

Canada Labour Code

Sick Leave

The sick leave provisions of the Code will apply when an employee cannot attend work due to swine flu. After three consecutive months of service, an employee who is absent due to illness or injury may take up to twelve weeks sick leave. In these circumstances, the Code prohibits employers from dismissing, laying off, demoting or disciplining any employee because of an absence due to illness.

The employer is not obligated to continue to pay wages to the employee during the absence, unless the employer has a salary continuance program as part of its terms of employment. The employee, however, may be entitled to employment insurance benefits during the period of absence.

Although the leave can be unpaid, during the entire period of the absence, the employer is required to maintain pension, health and disability benefits, and the seniority of the employee who is absent from work. Where the employee normally contributes to a plan, the employee remains responsible paying those contributions for the period of absence or the benefits plan may lapse. When the employee returns, benefits and seniority entitlements will be deemed to be continuous with employment before the employee’s absence.

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 Code and the Canada Labour Standard Regulations. Employees may be laid off for a temporary period of time without triggering any obligation to provide termination or severance pay under the Canada Labour Standard Regulations. 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.

It should also be noted that, while the Code 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 has 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.

Human Rights Code

The Canadian Human Rights Act prohibits discrimination and harassment in employment on the basis of (among others) race, colour, and national or ethnic origin. The swine flue 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 Canadian Human Rights Act.

The Canadian Human Rights Act 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 Act. 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 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 are encouraged to seek legal advice.

Public Health Act

The B.C. 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.

Work-related Illness

The Canada Labour Code requires employers to subscribe to a plan that provides an employee who is absent from work due to a work-related illness with wage replacement, payable at an equivalent rate to that provided for under the applicable provincial workers’ compensation legislation in the employee’s province of permanent residence. In B.C., the rate must be either equivalent to or greater than what is provided under the B.C. Workers Compensation Act.

As in the case of an employee on sick leave, the employer is obligated to maintain the employee’s pension, health and disability benefits and seniority during the entire period of the absence. Similarly, where the employee normally contributes to a plan, the employee remains responsible for paying those contributions for the period of absence.

Workers with symptoms of H1N1 virus, who were infected in the course of their employment, may be entitled to the usual benefits and services available under the Workers Compensation Act. However, a claimant’s entitlement will be decided on a case-by-case basis. Where the contraction of H1NI virus is determined to be work-related, an employer cannot dismiss, suspend, lay off, demote or discipline an employee because of absence from work.

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 the Canada Labour Code.

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 Canada Labour Code. In practice, many employers provide a certain number of paid sick days or allow employees to take unpaid time off when they are ill. The sick leave provisions in the Code allow an employee with more than three months service to take up to 12 weeks unpaid sick leave.

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

There is no requirement for a federally-regulated employer to provide time off for an employee to care for a family member unless that family member is gravely ill, with a significant risk of death. However, employers may choose to do this on a compassionate basis.

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.