What are the rights and obligations of Canadian employers and employees if a coronavirus outbreak occurs here?
Can an employee refuse to attend work or work in proximity with an employee exhibiting symptoms of the illness? Does an employer have to pay an employee who is sent home because he or she is ill or was in close contact with someone who may have the virus? These are the questions that will fill my inbox should the coronavirus appear in Canada. Read on to learn more.
Discrimination
I received a call this week from an individual who did not travel to an affected area but had relatives who did. His company was demanding that he leave the workplace and obtain a doctor’s note to confirm he was free from the virus. This was illegal. Employers have a legal obligation to ensure their workplaces are free from discrimination and harassment based on protected grounds. Treating an individual differently because of ethnicity, race or place of origin is prohibited. In this case, the employee did not have any physical contact with his relatives, so singling him out and insisting that he prove that he was not sick was differential treatment on a prohibited ground.
It is important to note that human-rights legislation also protects individuals from adverse treatment on the basis of a perceived illness or disability. Therefore, even the perception that an employee may be infected, without a reasonable basis for that belief, may trigger anti-discrimination protections.
What about situations where colleagues or even clients refuse to work with individuals based on a belief, however misguided, that it could expose them to the coronavirus? Unless there is a reasonable basis to consider that the individual is contagious, then stereotyping an employee merely because of his or her ethnicity or ancestry is also prohibited by human-rights legislation. Human-rights protections extend to ensuring that employees are not harassed, bullied or mistreated by co-workers or clients.
Safe workplaces
Employers and employees are responsible to ensure that the workplace is safe and healthy, including preventing the spread of a contagious illness or disease. Therefore, if an employee is exhibiting symptoms of the coronavirus, has travelled to an affected area or was in direct contact with someone who has symptoms, then an employer is required to protect the remainder of its work force. These employees should be prevented from attending the workplace, required to remain at home and encouraged to see a physician. They should not be permitted to return to work until and unless they have a clearance letter from a physician and pose no risk of infecting the workplace. These obligations also extend to visitors to the workplace, including clients, contractors and other guests. Employers should post signage and take reasonable precautions to ensure that visitors are denied access to the work site where they pose a danger.
The right to refuse work
Health and safety legislation provides employees the right to refuse to work or to perform a task where it is likely to endanger their health or put them at risk. “Likely to endanger” is the key. If there is a coronavirus outbreak in Canada, employees can refuse to perform their duties if it would expose them to people or situations where an infection is likely. Once an employer receives a safety-related work refusal, it is required to investigate the concern and attempt to find a solution. If that is not possible, then provincial labour inspectors must be contacted for resolution, while in the meantime the employee is permitted to maintain his or her work refusal. Employees who exercise a health and safety work refusal cannot be disciplined, threatened or dismissed.
Face masks
Can an employee insist on wearing one? If an outbreak of coronavirus in Canada were to occur, employees should not be prevented from wearing a face mask regardless if it makes others feel uncomfortable.
Statutory absences
Most employees who become unable to work because of a coronavirus infection are entitled to take a protected sick leave under employment standards legislation. These individuals are entitled to an unpaid leave of absence for differing periods depending on the provincial regulation. They cannot be disciplined or dismissed for taking such a leave, but in the case of an outbreak, they may be prevented from returning to work until they are symptom-free and no longer pose a danger to others.
Lost salary
What if an employee does not have coronavirus but is prevented from attending the workplace? This will become controversial for several reasons. First, symptom-free employees who are prevented from working should be paid for that time. Employers who refuse to compensate employees that are sent home are risking human-rights complaints or constructive dismissal lawsuits where those employees can demonstrate they did not pose a safety risk. Further, refusing to pay employees who are not permitted to work may discourage them from reporting symptoms or seeing a doctor which could further the spread of coronavirus should an outbreak occur.
Are employees with coronavirus or symptoms that resemble it entitled to paid time off? Employees who become unable to work are not entitled to salary or lost wages during their absence. However, there are options to recover some lost compensation, such as paid vacation time, federal employment insurance sick leave pay, workplace safety insurance claims and short-term disability benefits.
Advance planning will be key should a coronavirus outbreak become likely. Employers should establish a specialized committee to monitor developments, develop a tailored emergency action plan, provide appropriate training and support to managers and maintain open communication with the work force.
Daniel A. Lublin is a founding partner of Whitten & Lublin Employment & Labour Lawyers.
This column is part of Globe Careers’ Leadership Lab series, where executives and experts share their views and advice about leadership and management. Follow us at @Globe_Careers. Find all Leadership Lab stories at tgam.ca/leadershiplab.
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Daniel Lublin