Employers are increasingly facing questions and decisions surrounding the possibility of the Coronavirus (COVID-19) affecting their workplace.
Here are some frequently asked questions from our clients.
Q: Can we restrict employee travel to, and/or require disclosure if someone is returning from an “affected” area?
A: You can’t force employees not to travel to an affected area, but it is reasonable to require that they report such travel before they return to work. Failure to comply could be cause for appropriate discipline.
Q: Can we require an employee to report relevant symptoms of COVID-19?
A: Yes, this is a reasonable precaution and requirement.
Q: What can we do if an employee returns from travel to a presently affected area and/or reports relevant symptoms?
A: In either case you can reasonably recommend that employees seek medical consultation and require that employees not attend work (and if possible work remotely) for a period representing the relevant incubation period (reported to be 14 days in the case of COVID-19).
Q: If an employee is required not to attend work, do we have to pay them?
A: Where an employee is medically unable to work, you may consider applying the same policy that you would for other absences due to illness or injury. Where you are otherwise requiring an employee to stay home simply for self-quarantine purposes and they can work remotely, they should be paid. If you are requiring self-quarantine and the employee is unable to work remotely, you will have to decide whether to compensate them for their time off, failure to do so can lead to a potential claim of constructive dismissal.
Q: Can we terminate employment based on an employee’s contraction of this illness?
A: Not without the risk of violating the Human Rights Code, which obligates employers to accommodate disability to the point of undue hardship, or the Employment Standards Act, which provides for various protected leaves of absence.
Q: Can employees refuse to work if they believe that there has been exposure to COVID-19 in the workplace?
A: Possibly, as the Occupational Health and Safety Act of Ontario (“OHSA”) permits employees to lawfully refuse to work in unsafe working conditions. Such a refusal would require you to investigate and could possibly require an inspection by the Ministry of Labour to determine whether the particular circumstances constitute a reasonable risk of harm to employees.
Q: Do we need to have a “Pandemic Policy”?
A: While the OHSA does not presently mandate such a policy, it is a good idea to have one in place, setting out:
- protocols for the reporting of relevant travel or symptoms
- the administration of quarantines
- procedures for dealing with any refusals of what may be perceived to be unsafe working conditions; and
- generally providing guidelines for every-day precautions aimed to protect against viral infection