COVID-19 Quick-Reference Considerations for Employers

Safe Work Environment: Obligations and Best Practices

Employers have a duty to take every precaution reasonable in the circumstances for the protection of their employees. To satisfy this duty, below are some best practices for employers in non-healthcare settings:

Employers should review their safety policies and occupational health and safety legislation and consider what involvement the employer’s joint health and safety committee ought to have in the consideration and implementation of workplace safety measures and response to workplace safety risks or hazards. Employers should also be aware that they have an obligation to report occupational illnesses, and that this obligation may extend to COVID-19 if it arises in the workplace. Employers should make such a report to the applicable governmental bodies and notify their joint health and safety committee or a health and safety representative and a union, as applicable.

Travel Restrictions for Employees: Business and Personal Travel

Employers should restrict employees’ business-related travel. If an employee becomes infected with COVID-19 during business-related travel they may be entitled to compensation under applicable workers’ compensation legislation. At this point in time, most employers have restricted all non-essential business travel.

Restricting employees’ leisure travel is more problematic. Notwithstanding the government recommendations against travel outside Canada, the current caselaw provides that, generally, an employer cannot prevent employees from travelling during their leisure time.

We recommend the following approach to managing employees who are planning personal travel:

• Advise employees to review the Government of Canada travel health notices before undertaking any travel, particularly to an international destination. Recommend to employees that they not travel internationally.  Remind them that many insurers have indicated that they will not cover international travel, and where applicable provide them with the contact information for advice on any company provided insurance.
• Require employees to report all current or intended international personal travel.
• Encourage employees to follow governmental directives regarding travel outside the country.
• Implement and advise employees of a policy requiring employees who have travelled outside the country to “self-isolate” and work remotely, or take a leave of absence for 14 days upon their return to Canada, as currently directed by federal and provincial governments.  Employees may then return to the workplace after 14 days if no COVID-19 symptoms emerge.
• Employees who are able to work from home while self-isolating and do work should be paid.
• Employees who cannot work from home may be entitled to paid or unpaid time off work.  For more information on paid and unpaid leaves of absence , see “Time off for Workers Who Can’t Work from Home/Need to Self-Isolate”.

Requiring Employees to Disclose Symptoms

An employer can require employees to report any flu-like symptoms, including a fever, cough, and/or shortness of breath, or other symptoms that may be indicative of COVID-19.

Be mindful that, to comply with privacy laws, an employer should only collect/request personal information from employees that is reasonable given the circumstances.  Given the COVID-19 pandemic and the need to ensure workplace safety, a requirement for employees to disclose symptoms that are indicative of COVID-19 would be “reasonable”, however a requirement or request to disclose further personal information unrelated to the employer’s legitimate interest in maintaining workplace safety would likely be unreasonable.

Taking Employees’ Temperatures as a Screening Mechanism

Some employers across Canada have started to implement temperature screening prior to allowing an employee access to the office or a workplace.

Given the nature of COVID-19 and infection rates across Canada, it is arguable that, in certain workplaces, temperature checks may be a reasonable screening mechanism in the circumstances.  However, employers should be mindful of the following:

• Any checks should be conducted using the least intrusive methods available (e.g. non-contact infrared thermometers vs. contact thermometers).
• Qualified individuals would need to be available to administer the test and ensure that the test is conducted in a safe manner, such that there is no enhanced risk of employees being infected by each other or the test administrator.
• Advance written notice to workers of the temperature check requirement would need to be provided, including the means by which the check will be conducted and that the purpose (i.e. to promote a safe workplace and help reduce the spread of COVID-19).
• Medical advice may need to be obtained with respect to what body temperatures are of concern. 
• Records of individuals who test within ordinary temperature ranges (as determined by a medical expert) should not be retained by the employer.
• Individuals who test at or above a level that concerns a medical expert should not be allowed access to the workplace, but rather be discretely asked to leave the facility and to seek medical advice.

Responding to an Employee Who Discloses They or a Family Member Have Been Exposed or Tested Positive for COVID-19

If the employee has a family member (or someone they have been in close contact with) who may have been exposed to COVID-19 or has tested positive for COVID-19, then the employee should be advised to self-isolate for a 14-day period.

If the employee reports any flu-like symptoms, including a fever, cough, and/or shortness of breath, or other symptoms that may be indicative of COVID-19, the employee should be sent home and advised to consult a medical practitioner.

If the employee  has tested positive for COVID-19, the employee’s  return to work will depend on the advice of the physician or other qualified medical practitioner.

If the employee has tested positive and has attended the workplace or been in contact with other employees within the 14 days prior to the confirmed COVID-19 diagnosis, the employer should notify its other employees who may have been in contact with the individual that one of their co-workers has tested positive.  The co-workers should further be notified that they should self-isolate for 14 days and seek medical advice if they display any symptoms of COVID-19. Depending on the nature of the affected employee’s job and the nature of the employer’s operations, this may require an entire office to self-isolate, a floor of an office to self-isolate, or persons in proximity to the affected employee to self-isolate.  Consult local health authorities for further information as to best steps.

An employer should not inform its workforce of the identity of the person with the confirmed diagnosis, or provide other identifying information about such person.  If there is a need to provide identifying information about the affected person, the employer should consult with its legal counsel.

Refusing to Work

Employees have the right to refuse work or do particular work at a work site if the worker believes on reasonable grounds that there is a dangerous condition at the work site or that the work constitutes a danger to the worker’s health and safety. Employers cannot force an employee to work if the employee has exercised their right to refuse work.

Provincial occupational health and safety legislation contains procedures an employer must follow where an employee has exercised their right to refuse work. Employers should consult legal counsel where an employee has exercised their right to refuse to work to inform themselves of the applicable procedure in their jurisdiction.

Practical Issues

Working from Home

Permitting or requiring employees to work from home (“WFH”) where possible can reduce health and safety risks associated with the spread of COVID-19 in the workplace, enable employees who are self-isolating or in quarantine to productively contribute to the business and enable greater flexibility for employees who need to care for family members in connection with the spread of COVID-19.

Implementing a mandatory or optional WFH policy that is consistently applied will reduce risk of claims that the employer is providing WFH arrangements on an unfair or discriminatory basis.

Employers should consider the following when structuring their WFH arrangements:

• Application: Clarify to whom the WFH policy applies, and whether working from home is optional or mandatory for such employees.
• Duration: Consider clarifying the duration of the WFH policy. If it is intended to be a temporary measure, consider expressly stating that the policy is intended to be effective for the duration of the public health emergency in connection with COVID-19, and that the company reserves right to alter or terminate the policy at any time as circumstances warrant.
• Expectations: Consider clarifying expectations regarding the employee’s communication, availability, and productivity when working from home during business hours.
• Information Security: Consider remote connectivity and security concerns with respect to confidential company information, including the software and equipment that employee will use to perform work-related tasks from home.

Compliance

Time off for Workers Who Can’t Work from Home/Need to Self-Isolate

There are several different ways that employers can provide time off for workers who cannot work remotely and who need to self-isolate or care for a family member who has had to self-isolate. These include:

• Existing Statutory Leaves: Unpaid job-protected statutory leave of absence obligations under applicable provincial and federal employment standards legislation may apply to time off for COVID-19 related absences (e.g., statutory sick leave, medical leave, family care/responsibility leave). If an employee requests to take a certain unpaid statutory leave of absence and meets the qualifying requirements of that statutory leave, the employer must grant it and is precluded from terminating the employee’s employment for the duration of such a statutory leave.
• New Statutory Leaves: The federal government and certain provinces have passed legislation to provide for new leaves of absence related to COVID-19. As of March 27, 2020, these new statutory leaves, include:

The abovementioned leaves are unpaid, with the exception of Saskatchewan, where the leave must be paid if the employee (i) is authorized by their employer to work at home during that period; (ii) complies with the measures in the chief medical health officer’s order; and (iii) complies with any additional regulatory requirements as applicable.

Employers should consult with counsel in respect of mandatory leaves as the legislation could change rapidly.

• Paid Time Off: Employers should consider the following when determining whether or not time off for COVID-19 related leaves should be paid or unpaid:
  • Employees may be eligible for paid leave in accordance with the employer’s existing contracts, policies and practices. Employees who have contractual entitlements to certain benefits, sick days, or vacation time may be able to use any such accrued but unused entitlements during their COVID-19 related leave.
  • Employers may want to review their policies, practices and procedures regarding sick leave, vacation and other paid time off in light of the current circumstances.
  • Employers may choose to exercise their discretion to offer additional paid time off for COVID-19 related leave; however, employers should ensure that any such discretion is being exercised consistently as among similarly-situated employees.
• Other Unpaid Time Off of Work: Subject to any contractual entitlement to the contrary, employers may choose not to pay employees during COVID-19 related leaves. However, employers should be aware that they run the practical risk of dissuading employees from reporting any COVID-19 symptoms and discouraging employees from staying at home if they may have been infected with COVID-19. Employees who are on an unpaid leave of absence must be issued a Record of Employment and may be eligible for Employment Insurance (EI) benefits under the Employment Insurance Act. For more information, see below under the heading “Assistance for Employees”. 

Workforce Management

On April 6, the Alberta government announced temporary changes to Alberta’s Employment Standards Code (the “ESC”) in further response to COVID-19.

• Temporary Lay Off Extension: The government announced an extension to the permissive duration of temporary layoffs from 60 days to 120 days. This change is retroactive for any temporary layoffs related to COVID-19 that occurred on or after March 17. All other rules regarding temporary layoffs remain the same. Employers may extend the duration of the temporary layoff past the 120 day cutoff if they pay the employee an amount instead of wages or continue to pay or provide employee benefits during the period of the temporary layoff. Constructive dismissal risk associated with implementing temporary layoffs remains. However, this announcement may be used in any defence to a constructive dismissal claim to evidence the government’s intention that employers are permitted to temporarily layoff employees for the duration of the permissive period under the ESC and that such layoffs are not to constitute the employer’s repudiation of the employment contract.
• Removal of Group Termination Notice Requirement: The requirement to provide the group termination notice to employees and unions when 50 or more employees in a single location are being terminated has been removed. Accordingly, employers no longer have to provide employees with the enhanced group termination notice previously required by the ESC (ie. either 8, 12, or 16 weeks depending on the number of affected employees). All employees are still entitled to regular statutory notice or pay in lieu of notice as required by section 56 of the ESC.  Employers must still provide notice of group terminations to the Minister as soon as is practicable. The notice must simply specify the number of employees whose employment will be terminated, and the effective date of the terminations. There is no longer a requirement for employers to provide employees and unions with a copy of the notice given to the Minister.
• Other changes announced to the ESC include removal of the 24-hour written notice requirement for shift changes, removal of the two weeks’ notice requirement for changes to work schedules under an averaging agreement, and streamlining of the process for approvals related to modifying employment standards (variances and exemptions) so employers and workers can respond quicker to changing conditions at the workplace due to COVID-19.

The government announced that these changes are to take effect immediately and will be in place as long as the government determines they are needed and the public health emergency order remains. The legislative bill implementing these changes has not yet been passed by the Alberta legislature but is expected to be in the next few days.

Workers’ Compensation / Workplace Safety and Insurance Considerations

If an employee contracts COVID-19 in the course of employment, the employee may in some circumstances be entitled to receive benefits under applicable workplace safety and insurance legislation. Provincial workers’ compensation boards, including the Ontario Workplace Safety and Insurance Board, have indicated that they will consider COVID-19-related claims on a case-by-case basis. If any employee contracts or is suspected of contracting COVID-19 as a result of work, employers may be required to submit the appropriate forms to the applicable workers’ compensation board for consideration. Many of the workers’ compensation boards have stated that benefits are not meant for those employees who choose to withdraw from work for preventative reasons.

In addition, Alberta, British Columbia and Ontario have announced workers’ compensation financial relief measures for employers. The chart below outlines some of the details:

WorkSafeBC has published a useful guide, which includes practical guidance and employer obligations for preventing exposure to COVID-19 in the workplace. This guidance will be particularly helpful to employers when workplaces begin re-opening. The WorkSafeBC guide suggests that employers consider:

• Identifying specific conditions or tasks that may increase the risk of exposure and eliminating them
• Controlling the number of workers in the workplace through work from home or staggering shifts
• Ensuring adequate and enhanced cleaning between shifts including particularly high-contact items such as door handles, faucet handles, keyboards and other shared equipment
• Positioning workers two metres apart from other workers and customers
• Providing soap and water and hand sanitizers and encouraging workers to wash their hands frequently
• Checking and tracking that the above extra steps are being taken
• Prohibiting workers or customers on the worksite who are displaying symptoms of illness, travelled in the previous 14 days or who have been exposed to someone with COVID-19 or lives in a household with a member who has COVID-19

The WorkSafeBC guide is available here.

Human Rights Concerns

Employers’ legal obligations pursuant to human rights legislation continue to apply during the COVID-19 pandemic, including prohibitions against discrimination and the duty to accommodate employees with disabilities up to the point of undue hardship.The Ontario Human Rights Commission published a policy statement on the COVID-19 pandemic, which is available here and the key points for employers are summarized below:

• Negative treatment of employees who have, or are perceived to have, COVID-19, for reasons unrelated to public health and safety, is discriminatory and prohibited under human rights legislation.
• The Commission recognizes the primacy of health and safety but is concerned that employer actions actually have a health and safety purpose.  For example, the Commission prefers that employers send an individual employee home or ask them not to work in circumstances where  the employer’s concerns are reasonable and consistent with the most recent advice from medical and public health officials.
• If an employee is required to self-isolate for legitimate reasons, the employer is entitled to explore alternative options for how the employee may still continue to perform productive work for the employer (for example, working from home).
• It is not discriminatory to lay off employees if there is no work for them to do because of the impacts of COVID-19.

The P.E.I. Human Rights Commission has endorsed the advice provided by the Ontario Human Rights Commission.

The Alberta Human Rights Commission published general principles regarding COVID-19 and human rights obligations, which can be viewed here. Among other things, the commission’s publication:

• Suggests that an employee who is unable to come to work because health officials have quarantined them or have advised them to self-isolate is protected from discrimination under the Alberta Human Rights Act.
• Suggests that for the purpose of complying with the duty to accommodate to the point of undue hardship, “undue hardship” can be measured in terms of health and safety risk.
• States that employers must accommodate employees who have caregiving responsibilities to the point of undue hardship. This may include situations where the employee has caregiving responsibilities in respect of a family member who is ill or in self-isolation, or where the employee’s child’s school is closed due to COVID-19.
• States that employers should be sensitive to other factors, such as any particular vulnerability an employee may have (for example, if they have a compromised immune system).

The Nova Scotia Human Rights Commission has published information regarding human rights obligations with respect to COVID-19, as have the Manitoba Human Rights Commission and the New Brunswick Human Rights Commission. The Newfoundland and Labrador Human Rights Commission has also published a list of best practices related to COVID-19.

To avoid human rights claims, employer should consider whether:

• Measures taken in the workplace are reasonable and consistent with the most recent advice from medical and public health officials.
• Employees who are unable to work due to COVID-19 are being treated consistently.