On April 29, 2009, the World Health Organization raised its Pandemic Alert to Phase “5”, in response to the spread of swine influenza A/H1N1 infection (commonly known as “Swine Flu”). In Phase 5, which is the final “”Alert” phase prior to the WHO’s recognition of a “Pandemic”, governments are advised to activate their pandemic preparedness plans, and to remain on high alert for unusual outbreaks of influenza-like illness and severe pneumonia. While this stage means that most countries are still not seriously affected by the outbreak, the declaration of Phase 5 is a strong signal that a pandemic may be imminent and that the time to finalize the organization, communication and implementation of the planned mitigation measures is short.

Pandemic plans have been established by both the Government of Canada and the Government of Ontario. Employers have been encouraged to develop their own pandemic planning to address the likely outcomes of an influenza pandemic. According to the Government of Ontario, businesses should be planning on the assumption that, at the height of a severe pandemic wave, 20-60% of the working population would be unable or unwilling to work for 2 to 4 weeks, and that there would be 2 to 3 waves, each lasting approximately 8 weeks. To respond to such a scenario, employers are encouraged to develop plans for communicating risks and strategies with employees and other stakeholders and for promoting health and safety, as well as contingency planning to allow for “business as usual” to the extent possible.

While this is primarily a medical and not a legal issue, the possibility of a Swine Flu or other pandemic has numerous legal implications that must inform an employer’s pandemic planning. These legal implications will vary from jurisdiction to jurisdiction.

The Ontario Occupational Health and Safety Act requires all employers to take “every precaution reasonable in the circumstances to protect their workers.” In a pandemic scenario, this obligation would likely require employers to take precautions against the transmission of influenza in the workplace, in consultation with Joint Health and Safety Committees. Where employees exhibit symptoms of influenza, or have been exposed to persons afflicted with influenza, it would be advisable for employers to deny them access to the workplace and send them home for quarantine. This could extend to persons returning to Canada from Swine Flu affected areas, in particular Mexico.

Employers should consider implementing appropriate infection control and healthy workplace policies highlighting the importance of hand washing, cough etiquette, and staying home when ill, etc. Hygiene products and cleaning supplies should be in adequate supply. Notices should be prepared for posting at entry points to an employer’s business, advising staff and visitors not to enter if they have symptoms of influenza. Large gatherings of people and close social interaction should be limited to the extent possible, since the risk of transmission is greatest when people are within one metre of each other. This may include altering the physical workspace to create distance between employees, avoiding unnecessary meetings or travel, and other “social distancing” strategies to limit transmission risks. In certain workplaces, personal protective equipment, such as masks or gloves, may be required to meet an employer’s obligations, depending on the degree of risk exposure to influenza.

Employees have the right to refuse work that endangers their safety. In a pandemic scenario, work refusals may occur where employees are afraid that their work duties may increase their risk of exposure. By taking reasonable precautions, employers can limit the risks associated with influenza transmission in the workplace and the likelihood of employee endangerment. If there is no evidence of direct contact with an infected person, or no evidence that infected persons have been allowed into the workplace, it would be unlikely that a work refusal could be successfully invoked.

Employees who are made ill in the course of their work may be entitled to the usual benefits and services available under the Ontario Workplace Safety and Insurance Act. As in all disease claims, entitlement will be decided on a case-by-case basis, and a nexus to the workplace will be required. Employees unable to work as a result of exposure or potential exposure to influenza may also be entitled to employment insurance under the Employment Insurance Act.

Aside from the health and safety dimension, there are numerous provisions of the Ontario Employment Standards Act (the “ESA”) that could apply should employees affected by influenza take leaves from their employment. Employees could be entitled to unpaid leaves of absence for eight weeks or ten days pursuant to the Family Medical Leave and Personal Emergency Leave provisions of the ESA respectively. Employees will also be entitled to a leave of absence without pay where an order of an authorized medical officer is made in relation to the employee or a member of the employee’s family pursuant to the Ontario Health Protection and Promotion Act.

While the ESA provides for unpaid leaves, contractual entitlements may allow employees to take leaves with pay, including through the use of sick pay or vacation pay. Employers should consider whether employees asked not to attend work for influenza related reasons will be compensated during their absence, and in what manner. Employers should be cautious about unilateral changes to working conditions that could amount to constructive dismissal, particularly where they go beyond what is reasonably necessary to provide a safe and healthy work environment.

Employers should also be cognizant of the Ontario Human Rights Code, which prohibits discrimination, harassment or unfair treatment on the basis of protected grounds, including illness, disability or ethnicity. Employers have a duty to provide a workplace free of discrimination or harassment, and differential treatment must be based upon legitimate and bona fide occupational requirements, which may include the promotion of health and safety.

Federally regulated employers are required under Part II of the Canada Labour Code to “ensure that the health and safety at work of every person employed by the employer is protected.” In addition, employees may have an entitlement to sick leave for a period not exceeding 12 weeks or additional entitlements in the event an illness is deemed to be work-related.

In light of the foregoing legislative framework, employers should be proactive and err on the side of caution when addressing the risks of influenza in the workplace. Where difficult circumstances arise with respect to the implementation of a pandemic plan, legal advice should be sought as soon as possible.