While the media frenzy regarding the H1N1 influenza virus (also known as the “swine flu”) has somewhat subsided over the past few months, recent reports by the World Health Organization have indicated that, in some regions, instances of swine flu are increasing. Accordingly, it is crucial that employers be aware of their legal obligations as well as the practical implications that a pandemic influenza outbreak may have for their operations and workforce.

Statutory and Legal Considerations

In the event of a pandemic influenza outbreak, employers would need to consider their obligations under a number of different employment-related statues, including:

Occupational Health and Safety Legislation: Provincial and federal occupational health and safety legislation requires employers to take steps to protect employee health and safety, and to ensure that their workplaces are safe. These broad statutory obligations suggest that employers should develop and implement initiatives designed to address health and safety risks associated with pandemic influenza outbreaks. These steps may include implementing a hazard assessment and control program, bolstering workplace hygiene practices and creating a pandemic planning team.

Employment Standards Legislation: Provincial and federal employment standards legislation entitles employees to take a variety of different statutory leaves in the event that they or their families become ill as part of a pandemic influenza outbreak. Depending on the jurisdiction, employees may be entitled to take statutorily protected sick leave, compassionate care leave, family responsibility leave, personal emergency leave or leave for government-declared emergencies. In some instances, provincial governments may enact specific legislation designed to grant additional leave entitlements over and above those provided for in employment standards legislation.

Human Rights Legislation: Provincial and federal human rights legislation protects individuals from discrimination based on various grounds, including disability. Case law in Canada is inconsistent as to whether a short term illness constitutes a disability within the meaning of human rights legislation. Accordingly, employers may wish to seek guidance from legal counsel before responding to an employee’s accommodation request relating to a pandemic influenza illness.

Workers Compensation Legislation: Employers should be aware that, in some instances, employees suffering from a pandemic influenza illness may be entitled to compensation through workers compensation legislation, particularly where the illness was contracted as a result of the employee performing his or her job.

Creating a Pandemic Response Plan

In light of these statutory and legal considerations, employers would be well advised to develop and implement a pandemic response plan. In doing so, employers should consider the following suggestions:

  • Designate a pandemic co-ordination team that is responsible for pandemic preparedness and planning;
  • Establish procedures for employees to follow if they experience H1N1 symptoms;
  • Identify alternative work arrangements for ill employees, including the establishment of telecommuting alternatives and off-site access;
  • Identify core positions and resources that will be required to maintain the employer’s business during a pandemic;
  • Create a business continuity plan that may involve the designation of “clean worksites” or backup worksites in remote locations. Employers may also want to create an emergency communication plan to enable employees, customers and suppliers to maintain contact during a pandemic influenza outbreak;
  • Co-ordinate a health and safety hazard assessment and control program that addresses the unique hazards and risks associated with pandemic influenza; and
  • Bolster workplace hygiene practices by educating employees on the H1N1 virus, and teaching appropriate hand washing techniques and proper coughing and sneezing etiquette. Employers may want to consider providing hand sanitizers and anti-bacterial wipes to employees and visitors to their workplace.