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| Stuart Rudner |
- Employers have a duty to make reasonable efforts to provide a safe work environment;
- Federal and provincial health organizations are encouraging social distancing and self-isolation;
- In various parts of the country, the school March Break has been extended so that children will be out of school for three weeks;
- Most childcare, camps and children’s programs have been cancelled; and
- Employment Insurance (EI) rules have been relaxed so that the one-week waiting period will be waived and job-sharing will be facilitated.
There are many employment-related challenges to be addressed and questions to be answered. These include:
- Can employers restrict employees’ personal travel?
- Can employers refuse to allow employees to work if they have travelled or exhibit symptoms of illness?
- Do employers have to pay employees if they are not working?
- Does the answer to the above question change depending on whether the absence from work is due to mandatory self-isolation or employer-imposed?
- Can employees be temporarily laid off due to a shortage of work?
- Can employers reduce the working hours of their employees?
Employees and travel
Generally speaking, employers can and should restrict business travel but cannot ban personal travel. Employers can, however, require that employees advise them of travel plans.
So if an employee has travelled (for business or pleasure), what can an employer do?
Regardless of whether an employee has traveled to a high-risk or a low-risk destination, the Public Health Agency of Canada (PHAC) asks that individuals returning from travel monitor their health for fever, cough and difficulty breathing for 14 days after their arrival in Canada.
Any employees who have recently travelled to a high-risk destination or who have been in contact with someone who has been to a high-risk destination, regardless of whether or not they are exhibiting symptoms, should be required to report their situation to their employer.
Employers would be wise to confirm whether such employees have 1) any virus-like symptoms or 2) have been in contact with anyone that is believed or suspected to have symptoms of coronavirus. In these scenarios, a medical clearance can be requested before the employee returns to work, or a self-quarantine can be requested for the usual 14-day period.
Lack of childcare
Business will also need to consider the fact that in many parts of Canada, kids will be out of school over the next few weeks and there will be little, if any, childcare options available to parents. As a result, some parents will be simply unable to come to work.
So, when do you have to pay employees that are not working?
In some circumstances, employees can work remotely. After all, our prime minister is in self-isolation but continuing to carry out his duties. But some workers, particularly in retail operations, cannot.
Every jurisdiction has different laws with respect to sick leave. In Ontario, employees are entitled to three unpaid sick days. Some contracts and collective agreements may provide greater rights. Employees can also use vacation time or paid time off in many circumstances.
If employees feel unwell or suspect COVID-19
In such circumstances, the employee should be encouraged to stay home until they have medical clearance. It would be risky not to pay them, since they have not asked or been medically required to stay home. Ideally, they would work remotely but if that is not possible, they will likely have to be paid. Advances on vacation or temporary layoffs can be considered but employers cannot necessarily impose them.
If an employee is diagnosed with COVID-19
In that case, the sick leave policy in place will apply. If sick leave benefits are not available, the employee should be eligible for EI benefits.
If an employee is required to self-isolate by health officials
Most sick leave policies will not cover these circumstances, though employers can consider extending them due to the novelty of the situation. Other options can include allowing employees to access paid vacation time. The employee may be able to receive EI benefits.
If employer directs employee to self-isolate
If the employee has no symptoms of illness and has not been directed by a health official to self-quarantine but the employer directs them to remain home due to fears, for example, that they may have come into contact with someone that has COVID-19, then it would be hard for the employer to justify not paying them. Hopefully the employee can work remotely, but otherwise, they should be paid.
When employment insurance is available
In response to the global crisis, the government of Canada has agreed to waive the mandatory one-week waiting period for applying for EI sickness benefits for workers that are sick or quarantined due to COVID-19.
Furthermore, the rules regarding job sharing have been relaxed so that employers that have a decrease in work can reduce hours across the board, effectively having workers share jobs, and employment insurance can be used to help offset the loss of income.
Can employees be laid off?
It is critical to remember that by default, employers do not have the right to temporarily lay employees off. That is true in the event of a seasonal downturn, a pandemic, or otherwise. Most jurisdictions have employment standards legislation that sets out the parameters for layoffs when they are allowed, but that legislation does not give employers the right to impose them. That right must be explicitly or implicitly established by collective agreement or contract.
Other considerations
Employers should always be sensitive to the privacy rights of employees and avoid any unnecessary disclosure of personal information such as the fact that someone is in self-isolation or exhibiting symptoms.
Employers should also remember that human rights legislation prohibits discrimination based on protected grounds. COVID-19 may qualify as a disability, depending on various factors, and employers cannot discriminate on the basis of disability, race, place of origin, etc. Decisions with respect to who can or cannot attend at work should be made with this in mind. Stereotypes and assumptions should never be used as the basis for such decisions.
Ultimately, employers must balance the duty to provide a safe work environment with their contractual obligations and duties pursuant to human rights. They cannot arbitrarily refuse to allow someone to attend at the workplace, or to work at all; there must be a legitimate and defensible reason for doing so. If there is cause for concern and the employee can telecommute, that should be put in place. If they cannot telecommute but a legitimate concern exists, they should be excluded from the workplace by placing them on a paid leave.
We are all figuring out how to handle this situation. Employers should exercise caution and get legal advice before doing anything that might expose them to liability, and employees should seek legal advice if they feel as though their rights are being infringed.
Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 416-864-8500 or stuart@rudnerlaw.ca. He would like to thank associate Nadia Zaman for her help with this column.
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