Although the coronavirus (or COVID-19) outbreak around the globe has not reached crisis proportions in Canada, it is still essential for employers to review their company policies relating to heath and safety to ensure they are meeting their legal obligations.
Under the Ontario Employment Standards Act, 2000, employees are entitled to three days of protected unpaid leave when dealing with personal illness or emergency family responsibilities. However, in the case of a viral pandemic, they may also be eligible for unpaid leave under s. 50.1 of the Act, which sets out the criteria required for emergency leave in a declared emergency. An employee may also apply if they are caring for a person affected by the emergency, according to provisions in the Act.
However, s. 50.1 of the Act only applies if an emergency was declared under the Ontario Emergency Management and Civil Protection Act, 1990. Also, given that the Ontario government set out emergency leave provisions during the SARS outbreak, it could introduce similar legislation for the coronavirus.
As an employer, you must take reasonable precautions to ensure your workplace is safe under Ontario’s Occupational Health and Safety Act, 1990, since employees can refuse unsafe work. Remember, those such as police officers, firefighters and frontline health care workers are exempt from such provisions. We suggest that you review your company’s sick leave policies to confirm you are compliant with government directives relating to the coronavirus.
You must strive to avoid Ontario Human Rights Code, 1990, violations by refraining from making any statements or actions against certain employees relating to the coronavirus such as excluding certain people from the workplace based on race or nationality. However, the Code would not necessarily come into play if an employer introduces policies or measures affecting employees who have recently travelled to virus hotspots or are exhibiting flu-like symptoms. There would be a balancing of rights and interests in such cases. It would fall to the employer to objectively determine whether it would be unduly hard to accommodate the employee in question in light of concerns relating to the health and safety of others at the workplace.
Does the Code protect people who contract Coronavirus? Could the Code prohibit discrimination based on a “disability” related to the Coronavirus? The answer to these questions remains a mystery. Currently, colds or cases of flu do not constitute a “disability” under the Code. However, given the potential health-related dangers of the Coronavirus (it seems to be more serious than a common cold or flu) it is arguable that it is in fact a “disability” and as such a protected ground under the Code especially in its more extreme manifestations.
Along with reviewing your company’s policies, it is also a good idea to inform your employees of any public health directives such as hand washing, remaining at home when ill, or letting the company know if they have recently returned from the virus hotspots. Also remind your staff about any sick leave benefits, such as insurance claims, that may apply.
Employers need to be aware of their obligations so they can protect their rights, which is why it only makes sense to get sound legal advice.
At Zeilikman Law, we are strictly employment and labour lawyers. We help employees and employers on a daily basis with their workplace issues across the Greater Toronto Area, Vaughan, North York, Richmond Hill, Aurora, Newmarket and numerous other places in Ontario. Call us today at (905) 417-2227 to schedule a confidential consultation with one of our employment lawyers at our offices.