The swine influenza (“swine flu”) outbreak raises a number of issues for 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 federally regulated 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.

Canada Labour Code

Sick Leave

The sick leave provisions of the Canada Labour Code (“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 (12) 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.

Work-related Illness

The 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 Ontario, the rate must be either equivalent to or greater than what is provided under the Workplace Safety and Insurance 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. And 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 swine flu, who were infected in the course of their employment, may be entitled to the usual benefits and services available under the Code. However, a claimant’s entitlement will be decided on a case-by-case basis. Where the contraction of swine flu is determined to be work-related, an employer cannot dismiss, suspend, lay off, demote or discipline an employee because of absence from work.

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 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 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.

Occupational Health and Safety

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).

Canadian Human Rights Act

Race, Colour, National or Ethnic Origin

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 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 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 national 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 Canadian Human Rights Act.

Disability

The Canadian Human Rights Act 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 Canadian Human Rights Act.

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:

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

(b) 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.

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

(d) 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.