Pending a provincial lock-down, except for essential services, which is imminently expected in Ontario, many employees are concerned about the ability of their employer to disallow them attending work.
The other issue is entitlement to pay for employees who are requested not to attend work, or who elect to take a new, statutory leave of absence related to COVID-19 and its implications.
Below is a very good explanation of these issue, as it currently stands in Ontario, and subject to further directives from both the provincial and federal government.
All of this is subject to change at any time as the provincial and federal response to this pandemic modulates and develops:
As a result of the recent COVID-19 pandemic Canadian health authorities over the past week have requested that individuals exercise social distancing, and in certain circumstances self-isolation, to stymie the spread of the virus. Many employers are in the difficult position of determining how they can implement these public health measures in their workplace.
Duty to Provide a Safe Work Environment
Employers have an obligation to ensure the safety of their workers under occupational health and safety legislation. That obligation includes taking every reasonable precaution in the circumstances for the protection of their workers, even in the situation of a pandemic. They are expected to put the necessary measures in place to protect workers from infectious diseases, and inform, instruct and supervise workers in order to protect their health and safety.
Since March 13, 2020, the Public Health Agency of Canada and various other public health authorities have recommended that Canadians self-isolate for a 14-day period if:
- they have travelled anywhere outside of Canada (including the United States of America).
- they live with, provided care for, or spent extensive time with someone who:
- has tested positive for COVID-19; or
- is suspected of having COVID-19; or
- has respiratory symptoms (fever, cough, or shortness of breath) that started within 14 days of travel outside of Canada.
Should an employee meet any of the above requirements, they should self-isolate at home.
The question of whether an employer should remunerate an employee during the 14-day period can be complex. There is no one-size-fits-all approach, and it is recommended that employers speak with a member of Gowling WLG's Employment, Labour & Equalities Group to develop an appropriate approach for your workplace.
What if an employee has symptoms but does not meet the requirements to self-isolate?
If an employee has the symptoms of COVID-19 (coughing, and/or difficulty breathing) they should not be attending work. If they are febrile, they may have contracted an infectious virus and should not be in the workplace. They should go home and come back to work when the 14-day period has elapsed or when a medical professional authorizes them to return to work.
What if an employee does not want to self-isolate?
If an employer has a reasonable basis to believe that an employee should be self-isolating (i.e. meeting one of the public health-identified criteria for self-isolation) management should make careful notes of the basis for that belief and send the employee home. They should direct him or her not to come to work for the duration of the self-isolation 14-day period. Employers have a duty to ensure the safety of the workplace and must weigh the balance between employee wishes and workplace safety.
What if an employee wants to social distance and work-from-home?
Given the advice from public health authorities, many employers are utilizing remote work as a means to promote social distancing. On March 16, 2020, Prime Minister Justin Trudeau advised all Canadians to work from home where possible. From both a public health and occupational safety perspective, working from home is a sound policy to implement , provided it is feasible for your workplace.
Public health authorities recognize, however, that there are a number of workplaces where remote work is not possible. Even in circumstances where an employee is not required to self-isolate or cannot work remotely, all employees should exercise precaution and self-monitor for symptoms of COVID-19. We recommend that employers inform their employees of their duty to abstain from work and to report any symptoms or risk of COVID-19 to their employer during this crisis.
Does an employer have to pay an employee during quarantine?
There is no one-size-fits-all approach to the issue of whether an employer must pay an employee that is self-isolating, and will depend on the particular circumstances. No matter what, employers should be clear with the employee, in writing via email, about whether they will/will not be paid during the quarantine period. The employer's message should be sympathetic, and should confirm in writing exactly what is changing for that employee, and that the steps taken are a temporary necessity.
The Federal government has initiated a series of policy changes to support workers affected by COVID-19 and placed in quarantine:
- The one-week waiting period for EI sickness benefits will be waived for new claimants who are quarantined;
- A new dedicated toll-free phone number is established to support enquiries related to waiving the EI sickness benefits waiting period;
- Employees claiming EI sickness benefits due to quarantine are required to provide a supporting medical certificate;
- Employees who cannot complete their claim for EI sickness benefits due to quarantine are permitted to apply later and have their EI claim backdated to cover the period of delay.
Credit: Gowling WLG - André Poulin-Denis, published March 23, 2020, via Lexology.com