Update: March 17, 2020

The COVID-19 status is rapidly evolving in Canada. Please see our updated informational Video and Guide here: https://youtu.be/GHBAyojQtt0

We are also sharing some further questions we are getting from our clients for your information below covering How to Respond to Potential Infection and Infection. Let's delve into an employer's guide to managing Coronavirus in the workplace.

Can an employer implement medical testing to determine whether employees might be infected, including taking their temperature?

Compulsory health testing of all employees, such as mandatory temperature checks, is restricted by human rights and privacy legislation. However, as the prevalence of COVID-19 continues to escalate, it may become reasonable for employers to take more aggressive health testing measures in the workplace to meet their health and safety obligations.Employers should continue to review recommendations from the Public Health Agency of Canada and provincial health authorities and consult with an experienced employment or labour lawyer before implementing any procedures that go beyond their recommendations.Information should only be collected to the limited extent necessary to achieve COVID-19 preventative or precautionary measures. Access to this information should be limited to management and/or human resources, and applicable privacy legislation must be followed.

What should an employer do if an employee has tested positive for COVID-19?

Employers in BC are required under occupational health and safety laws to protect their employees and other workers from work-related hazards, including any infectious disease posing a risk at their workplace.Further to this duty and the current advice from public health authorities, an employer should direct a worker from the workplace, and any other worker who came into close contact with the worker, to not attend work, if:   – they are ill and/or exhibit any cold or flu-like symptoms   – they have COVID-19   – they returned from anywhere outside of Canada

What constitutes “closely” working with someone will depend on the workplace and the nature of interactions between employees. Employers should err on the side of caution.

Employers should also take reasonable measures to protect the confidentiality, to the extent possible, to protect the identity of any employee who contracts COVID-19. This can be a tough balancing act.

What do I do if one of our employees has symptoms or an unconfirmed case of COVID-19?

As with a confirmed case, the employee should be removed from the workplace.

The Public Health Agency of Canada encourages any person who has even mild symptoms to stay home and call the public health authority in the province or territory they are in to inform them. They will provide advice on what the employee should do.

Other employees who may have been exposed should be informed as removed from the workplace for at least a 14 day period or until the diagnosis of COVID-19 is ruled out by health authorities.

What happens to our employees if we are ordered to close our business by health authorities?

If the employer is ordered to close by health or other authorities, employers may be able layoff employees without liability under provincial employment standards legislation or the common law. Each case will be dependent on its own facts and you should consult a lawyer.

Can an employer close its business for safety reasons due to the COVID-19 outbreak?

An employer must ensure a safe working environment. Depending on the situation, it may be necessary to close a business location for occupational health and safety reasons.

An employer’s obligation for providing notice or pay in lieu of notice to employees in the event of a workplace closure will be governed by the specific facts of each case.

Update:  March 12, 2020

B.C. health officials recommend against travel outside Canada, and large gatherings

The Public Health Agency of Canada continues to advise the risk of COVID-19 to the general population remains low despite the significant measures all major organizations and businesses took over the last 24 hours. PHAC also advised all Canadians against non-essential travel outside of the country, and cancelling all gatherings of more than 50 people (previously 250).

During this afternoon's daily briefing, Health Minister Adrian Dix further announced that anyone who chooses to travel outside Canada must self-isolate from work and school for 14 days when arriving back in B.C. This includes people who are coming back to B.C. now. This was also recommended by the Federal Authorities.

This is a significant development with large implications on both employers and employees. Our Group strongly recommends that Employers review and update their workplace policies to include requirements for employees regarding travel and attendance at large gatherings. Employers can also include in their policies any other requirements important for the protection of their workplace and other employees.

Frequently Asked Questions

March 11th, 2020

As of March 10, 2020, COVID-19 or Coronavirus has been confirmed in four provinces: British Columbia, Alberta Ontario and Quebec. There are currently 39 cases in BC.  Of the cases reported in Canada:

• 55% of ill individuals are female
• 79% of ill individuals are over the age of 40
• 13% of ill individuals have been hospitalized
• 1 person has died of COVID-19
• 79% of ill individuals are travellers and 12% are close contacts of those travellers

This morning the Federal Government announced significant financial support programs for employers, their employees and businesses. More details are expected over the next week.  While the health authorities expect the number of cases to increase for a period of time, most Canadian employees are not at significant risk of infection. Despite the relatively low risk, we recommend that employers prepare for the various workplaces issues that may arise in the wake of Coronavirus.  Below we review some frequently asked questions and answers.

This is intended to be a general guide only.  Each case will depend on the particular circumstances of your business including any contract, policy manuals or collective agreements.  If you have a particular question we suggest you contact our Group for legal advice.

How should employers communicate with employees regarding the Coronavirus?

Employers have statutory obligations to protect the safety of employees and maintain a safe workplace.  Employees will be anxious to know what measures will be taken by the employer to address the consequences of the Coronavirus.  Employers should in our view provide employees with information about Coronavirus from official sources. It is also appropriate to remind employees of applicable company policies such as sick days, work from home policies, sick leave policies, and, pandemic policies.

Be mindful that employee personal information, including health information, should be kept confidential. While employers can collect, use and disclose information about an employee’s health, such disclosure must be reasonable in the circumstances and the employer must provide notice of disclosure to the employee.

Can an employer restrict international travel?

*see March 12, 2020 update above: all non-essential travel outside of Canada is not recommended and everyone who travels anywhere outside of Canada (including U.S.) must self-isolate for 14 days upon their return.

As of March 10, 2020, the Government of Canada has posted travel health notices for non-essential travel to all countries outside Canada due to the outbreak of Coronavirus. The full list of advisories can be viewed here: https://travel.gc.ca/travelling/advisories

Employers should restrict business travel to all areas outside of Canada. If employees travel to these regions for personal reasons, you should advise that they will be required to inform you and not return to work for 14 days upon their return to Canada.

Also, employees need to consider the consequences of travelling at this time.  For example, a major tennis tournament (the 5th major) was cancelled in Palm Springs due to one case of the Coronavirus nearby.  It is possible that employees travelling internationally might get quarantined.  Of particular concern to any traveller is the impact on their travel insurance.  It is reported today that many travel insurance policies might be void in respect of travel to certain countries where level 3 warnings have been issued.  We recommend therefore that employers and employees carefully consider insurance issues if travelling at this time. Further, on March 16, 2020, the Prime Minister asked all Canadians outside of Canada to return home at this time, while they are still able to.

Can an employer stop employees who travelled in an area affected by Coronavirus from returning to work?

*see March 12, 2020 update above: all non-essential travel outside of Canada is not recommended and employers should ask any employee who travels anywhere outside of Canada (including U.S.) to self-isolate for 14 days upon their return.

This depends on where the employee has travelled and the nature of your business. An employer is entitled to assess the risks involved with an employee returning to work. A greater assessment will be required for businesses that employ or serve persons who are more vulnerable to the disease, including senior citizens (such as care home operators or service providers).  That said, care must be taken to reduce the risk of a legal claim (such as a complaint to the BC Human Rights Tribunal or an allegation of constructive dismissal for fundamentally altering the terms of the employment.

An employee returning from an affected area should be asked to confirm they do not have any symptoms of illness.  It may also be appropriate to ask employees returning from at-risk areas to self-isolate for a period of 14 days, even if they are not exhibiting symptoms.

The symptoms associated with a confirmed case of Coronavirus include mild to severe respiratory illness with symptoms of fever, cough, and shortness of breath. The BC Centre for Disease Control publishes regularly updated guidance on its website, which should be consulted here. If your employee has these symptoms, they should seek medical attention and should not be permitted to return to work until they are confirmed by medical testing to either not be suffering from COVID-19 or that they no longer carry the virus.

If an employer does not permit an employee without symptoms to work, is there a requirement to still compensate the employee?

Subject to applicable contracts, policy manuals or collective agreements an employer is not required to pay an employee who does not work.  However, if action is taken to preclude an employee from working there might be claims for wrongful dismissal.  As well the temporary layoff may become a termination under the Employment Standards Act if the absence is more than 13 weeks in a 20 week period. We recommend reviewing our March 16, 2020 detailed Guide here: https://drive.google.com/open?id=1SCLyNW4CtTJp5AmYD69ltjQWdhxICe4a.

Therefore we suggest that the first step is to consider whether the employee can work from home.  Where working from home is not possible, employees can be invited to use any paid leave entitlements to cover the period of absence should they wish to do so. However, absent any entitlement to pay, employers face a difficult issue of whether to provide pay when the employee is not providing work. There may be situations where holding an employee out of service, without pay, may be determined to be reasonable and appropriate. This depends on the specific circumstances and any applicable employment contract, policy manual or collective agreement. We recommend speaking with a lawyer to receive advice on this matter.

Employees who qualify for EI sick-leave can apply for benefits. The Federal Government has announced it is waiving the one week waiting period for benefits to start for workers who are quarantined due to COVID-19.

What if an employee has Coronavirus and cannot work?

Where an employee contracts Coronavirus and is unable to work, an employer must review the employment contract, policy manual or collective agreement and grant any applicable sick leave and/or disability benefits the employee may be entitled to. The employer should relax its sick leave policies where available, including not requiring a medical certificate from the employee to confirm his or her inability to work due to COVID-19.

Generally, if an employee is entitled to paid sick leave under a workplace policy, collective agreement or employment contract, he or she will be able to claim sick leave benefits due to a coronavirus infection. If an employer does not provide paid sick leave benefits to its staff, it has no legal obligation to provide paid sick leave in circumstances of a coronavirus infection.

The Federal Government’s announcement earlier this week to provide wage assistance through EI and Work Share programs alleviate the financial pressure on employees and employers by waiving the one week waiting period for EI sick leave benefits, and eliminating the requirement for a medial certificate signed by a doctor. (updated March 12, 2020)

What if an employee refuses to work because they are worried about contracting Coronavirus in the workplace?

An employee has the right to refuse unsafe work under BC’s occupational health and safety laws. The employee must have reasonable cause to believe that performing the work would create an undue hazard to the health and safety of themselves or another person. If that is the case, the employee must immediately report the unsafe condition to the employer. An employer then has an obligation to investigate the matter and address the issue in accordance with procedures set out in section 3.12 of the OHS Regulation.

Where an employer is faced with a work refusal, it must respond in the manner prescribed by the Regulation. This includes an investigation into the concerns and the adoption of any reasonable measures to reduce or eliminate the workplace hazard. In conducting the investigation, the employer must educate itself on the current scientific and medical understanding of COVID-19 and apply this to the specific facts of the concerned individual in the workplace.  We recommend erring on the side of caution and respecting the refusal pending investigation of the issue. We also encourage employers to seek to identify arrangements by which the work can be performed which addresses the risk while that is occurring (an example may be allowing the employee to work from home).

An employer is not permitted to retaliate against an employee for raising a health and safety concern and may face a discriminatory action complaint under the Workers Compensation Act if they do so.

Can an employer terminate an employee if they contract Coronavirus and cannot come to work?

No. Under the Human Rights Code, employers may not terminate an employee or treat an employee adversely in the workplace because of a physical disability, which includes any disability arising from the symptoms of COVID-19.   In these circumstances, the employer has a duty to accommodate the employee to the point of undue hardship.

Can an employer replace sick or absent employees in order to continue operating?

An employer is permitted to hire temporary employees to fill in for persons on sick leave. It may also ask its healthy employees to work additional hours, so long as the employer complies with the overtime requirements of the Employment Standards Act and does not require employees to work excessive hours.

Can an employer require employees to work from home?

This will depend on the reasons for the request. If there has been potential exposure to COVID-19 in the workplace such that other employees are at risk, it is likely reasonable for the employer to take measures to require certain employees to self-isolate and work from home for a period of time.

Employees who refuse to stay home when ordered to do so may be prevented from entering the workplace and may be disciplined in accordance with existing employment agreements and policies.

Do employers have to buy personal protective equipment for employees?

There is a duty for employers to provide a safe working environment. If there is a legitimate risk of infection, the employer may be obligated to provide preventative equipment such as a mask or other personal protective equipment.

What preventative measures should an employer put in place?

WorkSafeBC is currently advising employers and workers that special precautions for COVID-19 are not required, beyond the recommended measures to prevent common respiratory viruses like influenza.  These measures include:

• Washing hands often, and always after coughing, sneezing, or blowing the nose.
• Washing hands with soap and water for at least 20 seconds, or, if soap and water are not available, using an alcohol-based hand sanitizer.
• Avoiding touching the eyes, nose, and mouth with unwashed hands.
• Avoiding close contact with people who are sick.
• Cleaning and disinfecting frequently touched objects and surfaces.

In addition, health care workers are recommended to consistently apply appropriate infection prevention and control measures, including hand hygiene, wearing appropriate personal protective equipment, including masks and eye protection, when assessing patients with respiratory illness, and performing a risk assessment before providing care.

Federal Government support programs March 11th, 2020

On March 11, 2020, the Federal Government announced a comprehensive plan to provide the provinces with $1 billion in funding to support medical services available to respond to the Coronavirus.  It also announced changes to EI and Workshare programs to assist employees not able to attend work because of the Coronavirus.  Employers should familiarize themselves with these programs before implementing changes to see if their employees are eligible for financial assistance.

If you have any questions about managing the Coronavirus in your workplace, the lawyers in Kane Shannon Weiler LLP’s Employment & Labour Group are available to answer your questions and advise you or your organization.

Contact us here: https://www.ksw.bc.ca/employment-law/