The Question
I’m a personal support worker in a long-term care facility. I contracted COVID-19 and was off for three weeks to recover. I’m still testing positive for COVID-19, but since I’m no longer symptomatic, my supervisor says that I should be reporting back to work. I want to work again, but it also doesn’t feel right to be around high-risk individuals right now. What should I do? What are my rights if I want to stay home and recover for another week?
The First Answer
Melissa Rico, partner, Carbert Waite LLP, Calgary
Your priorities are in the right place with your concern about exposing others to COVID-19, including a high-risk population. However, in this circumstance, while there are obligations under provincial occupational health and safety legislation that require that the workplace be safe, those requirements are not triggered.
The answer lies in the public-health guidelines set by each province. In Alberta, our provincial health authority (Alberta Health Services, or AHS) provides guidance documents that must be followed and are updated as the pandemic evolves. AHS has a Return to Work Guide for Healthcare Workers. It states that in the case of an individual who has tested positive for COVID-19, there is a legal requirement to isolate for 10 days from the onset of symptoms or until symptoms are gone, whichever is longer. Once this isolation period is completed, the individual is able to return to work. This implicitly contemplates that the individual will not put others at risk once the isolation period has elapsed.
Applying this to your situation, if you were an Albertan, provided that more than 10 days has passed since your symptoms went away, you are free to return to work. It is reassuring that your supervisor is supportive of your return. If you decide that you need more time to recover, you should provide a medical note to your employer and would be entitled to certain protected leaves under the applicable provincial employment legislation.
The Second Answer
Jason Wong, employment lawyer, Wong Employment Law, Toronto
Employees in this situation should consult with their medical professional to determine whether it is safe to return to the workplace despite being asymptomatic. If the employee receives medical advice that it is unsafe to return, the employee should inform their employer and take a leave of absence until they are medically cleared to return. If the medical advice is that it is safe to attend work, the employee must return to work if instructed to do so by their employer.
Employment legislation such as the Ontario Employment Standards Act (ESA) provides job-protected, unpaid leave of absences for COVID-19 reasons. This includes a leave of absence for employees who are under medical investigation, supervision or treatment related to COVID-19. If an employer dismisses an employee who is on a COVID-19 related leave of absence, it would be an illegal termination of employment.
Employees also have a legal duty to report any workplace safety issues to their employer under health and safety legislation (such as the Ontario Occupational Health and Safety Act). This includes reporting the potential spread of COVID-19. If a medical professional advises that an employee, even if asymptomatic, may pose a risk to co-workers or residents, then the employee must report this fact to their employer. The employer will then decide what the appropriate step is to take when dealing with a safety issue, which will likely be to allow the employee a temporary leave of absence.
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Andrea Yu