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COVID-19 and Employment Issues

Overview

To assist our clients, Sharek&Co. developed a Practice Group to assess the legal issues facing businesses and organizations related to the evolving COVID-19 situation. For more information about this update or to discuss legal issues affecting your organization, please free to contact our office directly.

The spread of COVID-19 across the world-and the resulting calls for social distancing-raise a number of unique issues for employers. In this update, we will look at the employer obligations in light of COVID-19, with a view to providing practical advice to employers grounded in those legal obligations.

Employers will face unique issues in responding to the COVID-19 pandemic. This Legal Update is intended to give an overview regarding potential employment issues arising from COVID-19 and key considerations as to potential impacts.

Workplace Issues 

The work obligations likely will evolve as circumstances change. Generally, employers have an obligation to take reasonable care to maintain a safe and healthy workplace under occupational health and safety legislation. Employers should be adaptable and be prepared to respond quickly to the changing health environment. Future guidance or direction from governmental authorities may, of course, also impact employer decision-making and comments contained in this bulletin. 

Reporting to work. There are circumstances in which employees may refuse to report to work due to concerns regarding COVID-19. Employers must consider these situations as they arise and how best to respond in the circumstances of each case. 

There are also circumstances in which employers may be justified in requiring employees not to report to work. These requests must be based on objective, non-discriminatory factors. 

Potential Impacts on Employees

Self-isolation. Whether or not employees must be paid for a period of self-isolation will depend on a number of factors, including whether the employee is performing services while off work (i.e., working from home) and the reason the employee is not reporting for work.

Employee travel. Employers generally have certain rights with respect to employee vacations (particularly, the scheduling of such vacation), but generally cannot dictate where employees choose to travel for personal reasons. Employers should ensure employees are up to date on recommendations from public health authorities and aware of any consequences of travelling (including that they may be asked to self-isolate or be quarantined for a period of time upon return). 

Employee privacy. Employers should consider employee privacy rights in developing policies and procedures regarding COVID-19.

Key Employer Obligations

Employers generally have a broad obligation to take reasonable care to maintain a safe and healthy workplace for their employees.

As a practical matter, what it means to take "reasonable" care to maintain a safe and healthy workplace for employees continues to evolve in light of the continual release of new information and containment guidelines. Employers need to be flexible and be prepared to react quickly to new developments. 

Suggested Practices:

• Ensure that appropriate steps are being taken to ensure the cleanliness of the workplace. Employers should communicate the importance of handwashing, environmental cleanliness and respiratory etiquette.
• Encourage employees who are feeling ill to stay home. This may be accomplished by, for example, allowing employees to use vacation as paid sick leave or developing (or amending) work-from-home policies.
• If working from home is not practical, consider steps that would slow the spread of COVID-19 such as: allowing employees to stagger their hours (thereby avoiding rush hour transit), ensuring spatial separation and encouraging the use of e-mail and teleconferencing over in-person meetings.
• Communicate any COVID-19-related policies (and any changes to those policies) to employees promptly and in a manner that is accessible. 

Can Employers require Employees to Work from Home?

Employers have a right to ask employees to stay home from work if they meet the publicly available risk criteria-i.e., they have symptoms of COVID-19, have recently travelled to an area that is the subject of a travel health notice (or on a cruise ship) or have been exposed to someone with the virus.

As guidance from public health authorities evolves, the circumstances under which employers can ask employees to stay home (and the duration of such absences) may change. Employers should take care to ensure they are not basing requests to stay home on legally-prohibited discriminatory grounds-for example, ethnicity or place of origin. 

Can Employees refuse to Work out of fear of COVID-19?

Employees generally have a right to refuse to work where they have a reasonable basis to believe that their duties present a danger to their health or safety.

Whether or not an employee's belief regarding the safety of the workplace is "reasonable" will depend on, among other things, the nature of the workplace, the employee's individual circumstances and the publicly available information with respect to COVID-19.  

Employers will need to consider refusals to work as they arise.  Indeed, it may eventually become in the employer's best interest to minimize the number of employees situated at the workplace, and employers would be well-advised to begin developing work-from-home policies and logistics in anticipation of such circumstances. 

What if Employees are Medically Required to Self-Isolate?

Subject to applicable policies, employers are generally not required to pay employees who are not working due to illness. Under applicable employment standards legislation, employees are entitled to a certain number of days of unpaid (but job-protected) sick leave. Human rights legislation also requires employers to accommodate employees with a disability (which includes certain illnesses) to a point of undue hardship. Typically, this does not require an employer to pay the employee while they are off, assuming the employee is not working.

In many cases, employees who contract, or are at risk of contracting, COVID-19 are capable of working from home. In those circumstances, employers will need to assess whether the employee's duties can be performed remotely and, if so, consider what supports may be offered to the employee to do so. Employees who are performing their usual duties remotely will generally be entitled to their usual pay and benefits. 

Privacy Considerations

Employers are generally required to keep employee health-related and personal information confidential. If an employee informs their employer that they have been diagnosed with COVID-19 or are required to self-quarantine, the employer should carefully consider the extent to which that information, including the identity of the employee, must be disclosed to others in order to appropriately protect its workforce.

Information should be shared only on a need-to-know basis. Before disclosing the identity of an employee who has been diagnosed, employers should consider whether a more generic communication will achieve the desired result (for example, simply informing others that "someone" who works in proximity to them has received a positive diagnosis).