Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
NOTE: Because the COVID-19 situation is dynamic, with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
At the time this Insight was prepared, there were eight reported cases of the coronavirus in Canada; three are in Ontario and five in British Columbia. The first of these cases was confirmed on January 25 and the last was confirmed on February 14. In addition, it has been reported that 43 of 255 Canadians aboard a Diamond Princess cruise ship hit with the coronavirus have been confirmed positive.
The outbreak raises understandable concerns for employers globally. This Insight article outlines the Canadian health authority’s travel recommendations in light of the current health crisis, and provides an overview of Canadian employment laws that might be implicated should the coronavirus reach the workplace.
The Public Health Agency of Canada has assessed the risk to Canadian travelers to China as high. The Government of Canada recommends avoiding all non-essential travel to China, and all travel to Hubei Province, China including Wuhan City, the global epicenter of the coronavirus (“the Affected Area”). Enhanced screening and detection measures have been implemented at Canadian airports to protect the health of the public from the coronavirus.
The Public Health Agency of Canada is recommending that all travelers returning from the Affected Area in the last 14 days self-isolate and stay at home for a total of 14 days from the date they left the Affected Area, and contact their local public health authority in the traveler’s province or territory within 24 hours of arriving in Canada. It is also recommending that all travelers from mainland China monitor themselves for symptoms and contact the local public authority in their province or territory if they feel sick. Finally, the Public Health Agency of Canada is asking all travelers, including those who have not been to the Affected Area or to mainland China, to seek medical attention immediately if a fever, cough, difficulty breathing or any other symptom arises within 14 days after returning to Canada, and to advise their health care provider or local health authority about symptoms and travel history.
Employment Law Considerations
The coronavirus outbreak requires Canadian employers to consider the following employment law issues:
Leaves under Employment Standards Legislation
In Canada, employment standards legislation has unpaid leave provisions that may be available to employees who develop the coronavirus, have family members who develop it or pass away because of it, or if an emergency is declared. In Ontario, for example, the following unpaid leaves are available under the Employment Standards Act, 2000 (ESA), each one a separate entitlement:
An employee who has been employed by an employer for at least two consecutive weeks is entitled to a sick leave without pay of up to three days in each calendar year because of a personal illness, injury or medical emergency.
Family Responsibility Leave
An employee who has been employed by an employer for at least two consecutive weeks is entitled to family responsibility leave without pay of up to three days in each calendar year because of the illness, injury or medical emergency of a family member.
Family Medical Leave
An employee is entitled to an unpaid leave of up to 28 unpaid weeks to provide care or support to a family member who has a serious medical condition with a risk of death occurring within a period of 26 weeks.
Family Caregiver Leave
An employee is entitled to an unpaid leave of up to 8 weeks to provide care or support to a family member who has a serious medical condition. There is no service requirement for this leave.
Critical Illness Leave (to care for a child family member under 18)
An employee who has been employed by an employer for at least 6 months is entitled to up to 37 unpaid weeks to care for a critically ill child.
Critical Illness Leave (to care for an adult family member)
An employee who has been employed by an employer for at least 6 months is entitled to up to 17 unpaid weeks to care for a critically ill adult family member.
Child Death Leave
An employee who has been employed by an employer for at least 6 months is entitled to up to 104 unpaid weeks leave if their child under age 18 dies.
An employee who has been employed by an employer for at least two consecutive weeks is entitled to a bereavement leave without pay of up to two days in each calendar year because of the death of a family member.
Declared Emergency Leave
An employee is entitled to an unpaid declared emergency leave if the employee will not be performing their duties because of a declared emergency.
Employee ill with Coronavirus
An employee who becomes ill with the coronavirus may be entitled to sick leave benefits under the employer’s sick leave policy or, if the employer has one, under its communicable disease policy. An employee may also be entitled to sick leave benefits under their employment contract, if they have one, or through short-term disability insurance, if available.
Employee recently returned from China or who had contact with person who recently returned or is ill with coronavirus
If an employee recently returned from China or had contact with a person who recently returned from China or is ill with the coronavirus, the employee may be asked by the employer to remain at home during the 14-day maximum incubation period. If the nature of the employee’s work makes it possible for the employee to work from home, the employee may be asked to do so. However, if working from home is not an option, the employer should:
- Review its sick leave policy, communicable disease policy, and the employee’s employment contract, to determine if they entitle the employee to sick leave benefits while under quarantine.
- Determine whether short-term disability coverage is available to the employee while under quarantine.
If these options are not available. The employer may consider:
- Asking the employee to use vacation days, if the employee has any remaining.
- Asking the employee to apply for Employment Insurance sickness benefits (see below).
- Paying the employee’s full wages and benefits.
Employment Insurance Sickness Benefits
In Canada, Employment Insurance (EI) sickness benefits can provide an employee whose regular weekly earnings from work have decreased by more than 40% with up to 15 weeks of financial assistance if the employee cannot work for medical reasons. The employee could receive 55% of their earnings up to a maximum of $573 a week. Medical reasons include illness, injury, quarantine or any medical condition that prevents the employee from working.
During the SARS outbreak in 2003, the Regulations under the Employment Insurance Act were amended to simplify the process for making a claim for EI sickness benefits due to SARS. At the time of writing, no such amendments have been made in relation to the coronavirus.
Occupational Health and Safety
Under occupational health and safety legislation, Canadian employers are required to ensure the safety of their workplaces. To do so, employers should pay close attention to how Canadian public health officials recommend Canadians protect themselves from the coronavirus and remind employees to adhere to the recommendations of officials.
With some exceptions (e.g., healthcare employees), employees are entitled under applicable occupational health and safety legislation to refuse work if they believe their health and safety is likely to be endangered due to a condition in the workplace. Employees in some workplaces may refuse work during the coronavirus outbreak. If, following an investigation by the employer, a resolution cannot be reached, the refusing employee and the employer must follow the work refusal process in the applicable statute. Reprisal by the employer against an employee who exercises the right to refuse work is not permitted.
Under Canada’s human rights legislation, discrimination in employment on the basis of ethnicity, race, ancestry, and place of origin is prohibited. Because the coronavirus originated in China, it has been reported that some people of Asian descent are being stigmatized and experiencing discrimination and harassment. Employers must be careful not to engage in such behaviour. All workplace policies pertaining to the coronavirus should be applied uniformly to all employees; employees of Asian descent should not be treated differently. In addition, job applicants of Asian descent should not be treated in a way that is different from applicants who are not of Asian descent.
On January 28, 2020, the Ontario Human Rights Commission (OHRC) issued a statement which provides in part:
Discriminatory action against any persons or communities because of an association with the Wuhan novel coronavirus, perceived or otherwise, is prohibited by the Ontario Human Rights Code. The Coronavirus is not isolated to people of any particular ethnic origin, place of origin or race.
Under Canada’s human rights legislation, discrimination in employment on the basis of disability is also prohibited. On April 3, 2003, in response to the outbreak of Severe Acute Respiratory Syndrome (SARS), the Ontario Human Rights Commission (OHRC) issued the following statement:
The ground of ‘disability’ under the Code covers diseases and other medical conditions such as SARs. Different treatment of persons who have or are perceived to have SARs, for reasons unrelated to health and safety precautions prescribed by medical and public health officials, is prohibited under the Code.
To date, no such statement has been made in regard to the coronavirus, however employers should refrain from treating employees who have or are perceived to have the coronavirus differently, unless the employer is following health and safety precautions directed by medical and health officials. In addition, employers should accommodate such employees to the point of undue hardship. This might involve allowing the employee to work from home provided the nature of their work permits it and they are feeling well enough to do so, or allowing the employee to take time off.
Workplace Bullying and Harassment
Under human rights legislation and occupational health and safety legislation, employers in Canada must provide a harassment-free workplace. Human rights legislation in Canada prohibits harassment on protected grounds. Occupational health and safety standards require employers to develop and implement anti-harassment policies and programs. Employers must be mindful that concerns over the coronavirus may result in workplace bullying and harassment. Accordingly, employers should remind employees of their anti-harassment/anti-bullying policies and that all employees are required to abide by these policies.
In Canada, employees who are infected with the coronavirus due to the nature of, or in the course of, their employment (e.g., while travelling to China for business or due to exposure in the workplace) may be entitled to workers’ compensation benefits. It is up to the employee to follow the procedure for applying for these benefits.
Given the highly contagious nature of the coronavirus, employers may reasonably be entitled to medical information from infected employees to ensure the safety of their workplaces. Employers are required to keep all employee medical records in the strictest of confidence. If an employee is working from home because they have been exposed to the coronavirus, or because they are infected with it, this information should not be shared with other employees, except on a “need to know” basis. Employees with whom the information has been shared because they “need to know” should be reminded that they are prohibited from disclosing it for unauthorized purposes. Medical records and notes related to the coronavirus should not be kept in an employee’s personnel file, but in a locked and separate confidential file.
If a Canadian company operates internationally, it may have a duty to protect its international workforce under local occupational health and human rights laws, among others. The employer should consult the guidelines of the relevant country’s public health officials, take into account guidance from the WHO’s website, and seek advice from local counsel.
Communication with Employees
Employers should engage in appropriate and clear communication about the coronavirus with their employees. The tone of this communication is important: it should not raise alarm bells and it should inspire confidence in the employer’s handling of the situation. Accordingly, the communication should emphasize that the health and safety of employees is the employer’s top priority and that the employer is taking all appropriate cautions to protect its employees.
If relevant, employers should notify employees that all business travel to China will be cancelled. Employers may also suggest that employees postpone personal travel to China, especially to the Affected Area. Employees who are planning personal travel to China should be asked to notify Human Resources of their plans.
In their communication to their employees, employers should ask employees who (a) recently returned from China, or (b) came into contact with someone who recently returned from China or who is infected with the coronavirus, to notify HR and self-isolate at home for 14 days from the date of departure or contact. Employees should also be advised that if they develop a fever or any symptoms of the coronavirus, they should self-isolate at home for 14 days from the date the symptoms first appeared. A specific person in HR should be designated as the employer’s “coronavirus contact.” Furthermore, if an employer has employees in China, these employees should be asked to contact HR to address their situation abroad.
Information about the symptoms and standard recommendations for how to avoid becoming infected with the coronavirus should be included in the communication. Employers can place alcohol-based hand sanitizers and disinfecting wipes for surfaces throughout the premises. Employers can direct employees to links to available information and guidelines from government and public health agencies, including the following:
- World Health Organization: https://www.who.int/emergencies/diseases/novel-coronavirus-2019
- Public Health Agency of Canada: https://www.canada.ca/en/public-health/services/diseases/2019-novel-coronavirus-infection.html
- Public Health Agency Travel Advice and Advisories: https://travel.gc.ca/travelling/health-safety/travel-health-notices/210; https://travel.gc.ca/destinations/china
- Ontario Ministry of Health: https://www.ontario.ca/page/2019-novel-coronavirus-2019-ncov
- Public Health Ontario: https://www.publichealthontario.ca/en/diseases-and-conditions/infectious-diseases/respiratory-diseases/novel-coronavirus
- Worksafe BC: https://www.worksafebc.com/en/about-us/news-events/announcements/2020/January/what-workers-employers-need-to-know-about-coronavirus
- BC Centre for Disease Control: http://www.bccdc.ca/health-info/diseases-conditions/coronavirus-(novel)
- Health Link British Columbia: https://www.healthlinkbc.ca/
- Government of Québec: https://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/
- Government of Alberta: https://www.alberta.ca/coronavirus-info-for-albertans.aspx
- Alberta Health Services: https://www.albertahealthservices.ca/topics/Page16944.aspx
- Government of Saskatchewan: https://www.saskatchewan.ca/government/health-care-administration-and-provider-resources/treatment-procedures-and-guidelines/emerging-public-health-issues/2019-novel-coronavirus
Employers are encouraged to consult with legal counsel to develop an effective strategy to deal with the employment law implications of the coronavirus. The outbreak is a wake-up call for employers that lack a communicable disease policy to put one in place, either within their sick leave policies or as a stand-alone policy. By proactively addressing these issues in a policy, employers may eliminate uncertainty in the workplace upon the outbreak of a highly infectious disease such as the coronavirus.
Finally, as the coronavirus outbreak is evolving daily, we encourage employers to remain abreast of developments as they occur, as well as the recommendations of public health authorities. We will be closely monitoring the situation as it unfolds and will provide an updated analysis of employment law considerations if it becomes appropriate to do so.
For more information, see Littler’s Coronavirus Resources for Employers.