The purpose of this bulletin is to provide you with general information about the H1N1 Flu Virus, also known as Swine Flu, and to respond to employers’ concerns about this disease.
The Government of Canada is providing online information about the H1N1 Flu Virus, including information about symptoms, at (www.phac-aspc.gc.ca).
PREVENTIVE MEASURES IN THE WORKPLACE
Employers must be mindful of their obligations under the Quebec Act respecting occupational health and safety, which include taking the necessary measures to protect the health and ensure the safety and physical well-being of workers. In our opinion, such measures include taking appropriate steps to protect employees from the spread of a contagious disease such as the H1N1 Flu Virus. 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 light of these circumstances, we are making the following recommendations.
As regards employees:
- Employees should be encouraged to adopt adequate hygiene practices, including frequent handwashing;
- If an employee is exhibiting typical symptoms of the H1N1 Flu Virus, or is asymptomatic but has been in contact with an infected person, he or she should not be allowed access to the workplace and should be sent home for quarantine and advised to seek medical advice as soon as possible, making sure to call ahead to notify the physician or clinic;
- If an employee has travelled to a high-risk area, a conservative employer could take a prudent approach and request the employee to self-quarantine even if he or she is asymptomatic;
As regards visitors to the workplace:
- If a visitor to the workplace is exhibiting typical symptoms of the H1N1 Flu Virus, or is asymptomatic but has been in contact with an infected person, he or she should not be allowed to access the workplace. It would also be appropriate to recommend to the visitor that he or she enter quarantine and seek medical advice as soon as possible, making sure to call ahead to notify the physician or clinic;
- If a visitor to the workplace has recently travelled to a high-risk area, a conservative employer could take a prudent approach and recommend that the visitor enter quarantine even if he or she is asymptomatic.
BENEFITS FOR EMPLOYEES ABSENT DUE TO THE H1N1 FLU VIRUS
Employees who believe they have symptoms of the H1N1 Flu Virus or who are told to enter quarantine may be eligible for one or more of the following benefits:
- Sick leave with pay or short-term disability benefits, if they are entitled thereto;
- Failing that, vacation days or unpaid leave. In this regard, the Act respecting labour standards provides that an employee with three months of uninterrupted service may be absent from work, without pay, for a period of not more than 26 weeks over a 12-month period, owing to sickness or accident.
- Under the Act respecting labour standards, an employee taking care of a child or other family member who is sick would also be eligible for certain leave without pay for family or parental matters.
For federally regulated employers, it should be noted that the Canada Labour Code provides that employees with a minimum of three months of service may have an entitlement to sick leave without pay for a period not exceeding 12 weeks.
Employers should consider whether employees asked not to attend work for reasons that relate to the H1N1 Flu Virus 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.
RIGHT OF REFUSAL
Employers may also have to deal with an employee's refusal to work for fear of contracting the H1N1 Flu Virus. A right of refusal may be exercised under the Act respecting occupational health and safety if a worker has reasonable grounds to believe that the performance of particular work would expose him or her to danger to his or her health, safety or physical wellbeing or would expose another person to a similar danger. To date the Commission de la santé et de la sécurité du travail has not issued any directives regarding the current situation. Because every situation is different, we will be pleased to advise you on specific cases. For federally regulated employers, Part II of the Canada Labour Code also provides for an employee’s right to refuse to work.
It should be noted that on April 30, 2009, Canada’s Labour Minister published a bulletin about the H1N1 Flu Virus and occupational health and safety for federally regulated employers at (http://www.hrsdc.gc.ca/eng/labour/bulletin_swine.shtml).
Meanwhile, in view of the speed at which the situation is evolving we urge you to comply with all new directives from Canadian public health authorities.