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 bulletin, we examine employer obligations in light of COVID-19, with a view to providing practical advice to employers grounded in those legal obligations.
Employers are facing unique issues in responding to the COVID-19 pandemic. While we seek to provide general guidance in this bulletin, we encourage employers to seek legal advice with respect to the specific issues facing their business and their proposed response to those issues.
Employers across Canada have a broad obligation to take reasonable care to maintain a safe and healthy workplace for their employees by virtue of provincial occupational health and safety legislation. For example, Ontario’s Occupational Health and Safety Act (OHSA) provides that employers have the obligation to, among other things, “take every precaution reasonable in the circumstances for the protection of a worker”.1
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 medical information and containment guidelines. Employers need to be flexible and be prepared to react quickly to new developments. The health and safety policies that are reasonable today may not be reasonable tomorrow. Accordingly, employers should stay abreast of federal, provincial and international agencies’ guidance and develop specific measures informed by that guidance and responsive to the specifics of the workplace’s jurisdiction(s).
Among other things, employers should consider the following best practices:
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 (which, as noted above, is ever-evolving). Employers will need to investigate and consider refusals to work, if and as they arise. However, due to the unique nature of the COVID-19 pandemic, employers are encouraged to be as flexible as reasonably possible in dealing with such situations. Indeed, it may eventually become in the employer’s best interest to reduce the number of employees in the workplace, and employers would be well-advised to begin developing work-from-home policies and logistics in anticipation of such circumstances.
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 PHAC 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 as well. Employers must ensure they are not basing requests to stay home on legally-prohibited discriminatory grounds—for example, ethnicity or place of origin.
Subject to applicable policies and practices, 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, unless pursuant to the employer’s policies or practices. Employers should review their employment agreements and workplace policies and practices to confirm whether they have a contractual obligation to pay employees who are off work due to illness.
We observe that, 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.
Generally, employers cannot make significant unilateral changes to the terms of an employee’s employment without triggering a risk of constructive dismissal, but in the context of COVID-19, there may be circumstances in which it is reasonable for an employer to require a portion or all of its workforce to work remotely. As noted above, to the extent employees are continuing to perform their usual duties out of the office, they will generally be entitled to their usual pay and benefits.
Whether or not employers have to pay employees who are asked not to report to work, but are unable to perform their duties remotely, will depend on the circumstances of each case.
Employers generally have a right to dictate when employees take their vacation time. Accordingly, employers may be entitled to require employees not to take vacation for a period of time, subject to the terms of their vacation policies and practices and their employment agreements. If employees have already sought and obtained approval to take a vacation and are being asked to cancel that vacation, employers could be liable to compensate the employee for any cancellation and/or rebooking fees that may be incurred by the employee.
Employers can ask employees not to travel for personal reasons—particularly to the high-risk locations identified by the CDC and public health authorities—however, employers ultimately cannot prevent an employee from traveling for personal reasons. Employers should ensure employees are aware of the consequences of travelling (including that they may be asked to self-quarantine or be quarantined by governmental authorities for a period of time on their return from vacation). Employers can, however, prohibit employees from engaging in non-essential business travel (or business travel to an area that is the subject of a PHAC travel health notice).
Under provincial employment standards legislation in the common law provinces, employers generally have a right to terminate their employees without cause at any time, subject to the provision of appropriate notice of termination (or pay in lieu) and severance pay (if applicable). To the extent employers suffer financial hardship because of the COVID-19 outbreak, they may be permitted to terminate their employees without cause. Employers should, however, proceed with caution and ensure the terminations cannot be perceived to be based on any prohibited ground of discrimination (including disability) or related to an employee’s request to take a sick leave in connection with COVID-19.
Employers may be able to temporarily lay off all or some of their workforce to ameliorate the financial difficulties caused by the COVID-19 epidemic. Employment standards legislation across the country provides employers with a right to temporarily lay off all or part of a workforce for a period of time without triggering a termination. However, there is case law that suggests a temporary layoff without pay may amount to constructive dismissal in the absence of a contractual right to do so (which could include, among other things, an employer policy or practice of layoffs without pay). Employers should review their employment agreements, policies and/or practices with a view to determining whether a temporary layoff is an option that they wish to pursue. Employers who seek to impose a temporary layoff should ensure, at a minimum, that they are complying with applicable provincial legislation.
Recently, some provincial authorities have announced that public schools will be closed due to COVID-19, including for at least two weeks following March Break in Ontario. Employers should be cognizant of how these school closures may impact their workforce. Employees have certain entitlements to take a leave of absence to meet family-related responsibilities; further, human rights legislation prohibits discrimination against individuals on the basis of family status and requires that they be accommodated to the point of undue hardship. The jurisprudence in this area is nascent and changing, but employers should be prepared to consider accommodating employees with childcare responsibilities (for example, by providing time off work while the school closures are ongoing).
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).
Employers should also be careful not to require employees to disclose any underlying medical conditions. While these underlying conditions may place an employee at further risk of serious complications, employers are not entitled to require employees to provide this information to them.
1 OHSA, section 25(2)(h)
Torys LLP’s employment group has experience addressing issues relating to COVID-19 and would be pleased to provide any assistance your business may require.
Read all our coronavirus-related updates on our COVID-19 guidance for organizations resource page.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
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