In a recent newsletter (“Managing Risk Around Swine Flu – What Employers Should Know”, May 1, 2009), we advised you of the risks in managing workplace issues arising from the H1N1 Influenza Flu Virus –commonly known as the Swine Flu.

While the media frenzy appears to have cooled - at least for the moment – it is predicted that H1N1 Flu-related infections will again climb later this year. An H1N1 Flu pandemic (i.e., a disease that affects the entire world) was believed to be “imminent” in late April. According to the World Health Organization, as of May 13, 2009, there were 5,728 reported cases of the H1N1Flu infection and that the virus had reached 33 countries.

The recent and anticipated outbreaks are predicted to cause significant absenteeism around the globe. Employees may become ill or subject to quarantine, or may have to stay at home to care for dependents.

While it appears that the short-term effects of the H1N1 Flu on Ontario workplaces may be minimal, employers should prepare themselves to meet their statutory obligations concerning this or future outbreaks.

Employment Standards Act, 2000

The Employment Standards Act, 2000 provides for a number of statutorily protected types of unpaid leaves of absence that may apply in the event of absences for personal illness or family illness and that may be utilized in the event of a pandemic.

Emergency Leave, Declared Emergencies – The ESA was amended in 2006 to include an unpaid leave that allows employees to take leave from work in the event of a declared “emergency.” An employee will be entitled to take this type of leave if an emergency is declared pursuant to the Emergency Management and Civil Protection Act and an order made under that legislation or the Health Protection and Promotion Act applies to the employee or because the employee is needed to provide care or assistance to one of various specified family members. The leave is for the duration of the period that the employee is not performing the duties of his/her position.

Personal Emergency Leave - Employers who regularly employ fifty (50) or more employees will be required to provide Personal Emergency Leave to employees. This leave is available to employees in the event of a personal illness, injury or medical emergency, or the death, illness, injury, medical emergency or “urgent matter” of one of a number of prescribed individuals (i.e., a spouse, parent, step-parent, foster parent, a child, step-child or foster child, or a relative of the employee who is dependent on the employee for care or assistance).

Family Medical Leave - An employee may also be eligible to take unpaid leave for up to eight (8) weeks to provide care or support to certain prescribed individuals (e.g., a spouse, parent, step-parent or foster parent, child, step-child or foster child, or any individual prescribed as a family member) if the individual has a serious medical condition with a significant risk of death occurring within a period of twenty-six (26) weeks.

Occupational Health & Safety Act

Employers in Ontario must take reasonable care to provide employees with a safe and healthy workplace environment.

Workers in Ontario have the right, pursuant to the OHSA, to refuse work or to stop working if their health or safety is in danger. A worker may refuse to work if the physical condition of the workplace, or the part of the workplace in which the worker works, or will work, is likely to endanger the worker. In the event of an outbreak of an infectious disease among the employees in a workplace, it is conceivable that the workplace could be viewed as unsafe because of the presence of infected individuals. A work refusal must be objectively reasonable, taking into consideration all of the information that is available to the worker. Therefore, employers must be alert to take all reasonable steps to limit the spread of infectious disease and to communicate what they have done to employees. At the same time, the privacy rights of employees who may be infected must be protected.

The Human Rights Code

The Code protects individuals from discrimination in employment based on actual or perceived disability. Given that, generally speaking, flu is considered a common condition of temporary duration, it is uncertain whether the H1N1 Flu would constitute a disability within the meaning of the Code. If H1N1 Flu is found to be a disability, employers will be required to reasonably accommodate the disability.

As of the date of publication of this newsletter, it is not possible to predict accurately the anticipated impact of the H1N1 Flu on economic activity in Ontario and, in particular, workplaces. What is clear, however, is that organizations need to plan for a pandemic, including a review and update of workplace policies and practices relating to attendance, leaves of absence, industrial hygiene, pay and performance.