With the World Health Organization declaring the spread of COVID-19 (Coronavirus) a global pandemic, concerns over approaching disruptions in the workplace continue to rise. Although Health Canada reports that the risk to Canadians is currently low, employers must consider several legal issues caused by the ongoing spread of the virus.
Employers in British Columbia continue to have legal duties under occupational health and safety, employment standards, and human rights legislation during an outbreak as they would with any other risk of illness affecting their employees. Under occupational health and safety legislation, employers in British Columbia are legally obliged to ensure the safety of their workplace. Ensuring a safe workplace includes identifying infectious diseases that may be present and taking all reasonable measures to prevent exposure.
It is important to remember that both an employer and an employee are responsible for ensuring the safety of the workplace. If an employer fails to provide safe work conditions, an employee can refuse to work due to legitimate health or safety concerns. In this case, an employer cannot discipline or threaten an employee for work refusal, and must immediately investigate the work conditions and try to arrive at a satisfactory resolution with an employee. It may be helpful to refer to authoritative medical sources for accurate information and objective assessments of the risk levels, as employees may not be able to accurately gauge the risks. Further, employers should keep human rights considerations in mind and avoid risk assessment practices that target employees based on ethnic origin, race or disability.
Under human rights legislation, employers are required to accommodate employees up to the point of undue hardship. In the context of a global pandemic, this may require changes in the workplace structure to protect at-risk employees. Such changes could include implementing work from home policies, encouraging teleconferencing and limiting travel. In order to prevent COVID-19 from spreading, employees, who may have been exposed to the virus, can be asked to self-quarantine.
If quarantined, employees will still be entitled to standard leaves of absence under the appropriate legislation, employment contracts, collective agreements, and the employer’s policies. Notably, there is no legal requirement in B.C. to pay an employee while he or she is off on sick leave without a contractual entitlement. However, most employers offer a limited amount of paid sick leave each year. Employers should also familiarize themselves with the various statutory leaves available to employees who are caregivers for persons affected by the virus. The availability and length of these leaves depend on the employee’s relationship to the individual, the age of the individual they are caring for and how critical that individual’s illness is.
Provincial and federal legislation grants public health officials sweeping powers to respond to a public health emergency. For example, privacy laws may be overridden if the provincial health officer declared the COVID-19 outbreak an emergency under the Public Health Act. In such a scenario, an employer may be permitted or required to disclose personal information of employees. In an alternative example, health officers would be empowered to issue quarantine orders to groups of people. Although an extreme measure, the ability to quarantine groups was a tool that was significant in the prevention of the spread of SARS in Ontario in 2003.
As the spread of COVID-19 continues, Canadian employers may face additional obligations and experience interruptions in their business operations. Employers should implement all prudent measures to ensure the safety of workplaces. This may require making hard decisions such as quarantining at-risk employees and introducing work from home policies. It is important that employers balance a responsible approach to ensuring workplace safety while avoiding relying on misinformation in their response to the outbreak. To learn more about an employer’s rights and obligations in addressing COVID-19 in the workplace, contact Boughton Law’s Employment Practice Group.
Written by Elizabeth Reid and Shannon Gahan