The confirmation that the contagion, “Swine Flu”, is present in Canadaraises potential issues about the legal rights and responsibilities ofboth employers and employees.
This situation is highly dynamic and the comments contained below maychange as a result to changes in circumstances and new information frompublic health authorities. However, based on past experiences withsimilar public health issues, most notably SARS, it is prudent foremployers to consider the issues and take reasonable steps now. Thefollowing will assist employers in doing so.
In addition, there are very specific risks and issues for employers operating in the healthcare industry that are not addressed in detail in this alert. For information specific to the healthcare industry please contact us and we can provide more precise advice and assistance.
While most of the information below is directed to Ontario employers, many other Canadian jurisdictions are covered under similar legislation.
Occupational Health and Safety Act (OHSA)
Statutory Duty to Provide a Safe Workplace
– Employers are under a duty to ensure the safety of employees. Generally speaking, this duty requires employers to take reasonable steps to ensure that employees are safe, and that the workplace is reasonably safe. As such, employers may wish to increase the safeguards in place at the workplace to reduce the risk that an employee may contract the virus at work. It is advisable that employers put in place the protections suggested by the Ministry of Health and/or World Health Organization (WHO) and/or Centers for Disease Control. Such steps would include, for example:
- Ensuring that ventilation systems in the workplace are clean and in good condition;
- Providing employees with antiseptic cleanser;
- Ensuring that the workplace is kept clean and free of germs to the extent reasonably possible;
- Reminding employees of the need to wash their hands regularly, and to cover their mouthwhen sneezing or coughing;
- Taking reasonable measures to ensure that employees at work are not symptomatic and therefore likely to infect others and the work-product.
- Remind employees that are experiencing flu-like symptoms to stay away from the workplace and immediately see a doctor.
Employers who operate in industries in which employees perform job duties which could impinge on the health and safety of the public, where there is a high degree of travel required (and to places where the employee could contract Swine Flu), or where invasive procedures are an unavoidable part of the employees work will be required to be even more diligent in their attempt to secure the workplace. Such industries may include: food services, retail, processing or preparation; healthcare; schools; and so on. In such industries employees may be at an increased risk of contracting Swine Flu, or may put others at an increased risk of contracting it.
An employer may be required to suspend an employee who creates or created unsafe working conditions. Thus, employees who choose not to remain at home in isolation or quarantine if ordered to do so, should be prohibited from entering the workplace.
Employers should be cautious, however, to ensure that they are not succumbing to generalized fears of contagion. While it is important to ensure that the workplace is a safe environment and that employees are protected from legitimate risks, it is also important not to be swept up in unreasonable and unfounded generalized fears of contagion. Fears that are not based upon genuine risk may result in unfair or discriminatory treatment toward employees of certain ethnic backgrounds. Such treatment is of course prohibited by the Ontario Human Rights Code.
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Duty to Direct Workers
–Under the OHSA, employers are under a duty to provide information,instruction and supervision to employees in order to protect employeesfrom workplace hazards or dangers. This duty requires employers toensure employees are acquainted with workplace hazards and how toprotect themselves and other employees. This duty extends not only toemployees, but also to any workers at the employer’s place of business.
Inaddition to educating employees about Swine Flu generally, employersshould also take time to educate employees as to how they can, ifnecessary, protect themselves from any risks associated with working ina particular place of work.
Employer responsibilities extend to both infected and non-infected employees. Employers have a responsibility to ensure that employee fears of contagion do not result in discrimination or harassment. In addition, employers have an obligation to accommodate employees who are suffering from a disability. Given the broad interpretation of disability under the Code, employees suffering from health issues relating to Swine Flu will likely be covered by the Code.
An employer will be required to protect employee from harassment or discrimination on the basis of a perceived disability. In addition, an employer may be required to accommodate an employee who genuinely believes that s/he is disabled, despite the fact that the employee may not in fact be suffering from a disability.
– The Ontario Human Rights Code prohibits discrimination based upon place of origin, race, ancestry, or disability. Employers must be diligent in ensuring that their policies and procedures respecting Swine Flu do not contravene the Code. It may be legitimate for an employer to refuse to allow an employee to return to work after a trip to a known Swine Flu hotspot, following a period of quarantine, or following time off from work to care for a relative who was in isolation or quarantined. To ensure that these measures are not seen to be discriminatory, employers should take measures to justify their decision.
Employers may wish to require that employees who return to work from a visit to a known Swine Flu hotspot, or following quarantine, provide a medical certificate stating that they are fit and healthy, and able to return to work. It is only after an employee refuses to provide a medical certificate in the face of a reasonable employer request or where a medical certificate suggests that an employer is not healthy enough to return to work that an employer may be able to refuse to allow such employees back into the workplace.
– Employers should be careful to ensure that they take appropriate steps to accommodate employees who are disabled as a result of the flu. This may require employers to provide disabled employees with alternate work, allow employees to work from home, or to provide such employees with time off from work without penalty. The requirement to accommodate disabled employees is to the point of undue hardship.
Harassment – Employers also have an obligation under the Code to ensure that the workplace is free of harassment. It is important that employers do not harass employees who maybe suffering from Swine Flu, who have a close relative or relation suffering from Swine Flu, or who have returned home from an area which is known to be a Swine Flu hotspot (presently Mexico and Southern U.S.). This means that while it is important for employers to take appropriate measures to ensure that the workplace remains a safe place to work, it must not engage in harassment. Employers should not be investigating employees while they are not at work, calling employees, threatening employees, or engaging in conduct that may cause insult or humiliation to certain groups of employees.
Health Protection and Promotion Act
The Ontario Health Protection and Promotion Act (HPP”) provides the Minister of Health with broad powers to deal with hazards presented by communicable and virulent diseases. Under the HPPA, certain individuals, particularly in the healthcare field and stipulated institutions, are required to report communicable diseases to the Medical Officer of Health. Failure to report such knowledge is an offence that is punishable by fine of up to $5,000 per day or part of a day in which the offence continues. Directors, officers, employees or agents of a corporation responsible for the conduct of that part of the business guilty of an offence are subject to a fine of up to $25,000 for each day or part of a day that the offence continues.
Although the HPPA does not require employers to report the knowledge or belief that an employee has Swine Flu, where an employer operates in an industry in which the public may be put at risk as a result of the failure to report the information and to take appropriate measures to protect the public the employer may find themselves in breach of other regulatory requirement or standard (depending upon the nature of the industry). As well, an employer who provides medical services on-site to employees or refers employees to a company physician are required to ensure that company medical personnel are in compliance with the HPPA.
Additionally, the HPPA provides broad powers on the Medical Officer of Health, and as such, it may be that an order will be issued requiring employers to comply with certain requirements. No such orders have been issued to date. Certain employers will have additional obligations due to the particular industry in which they operate.
Food Services, Manufacturing or Processing
– Employers who operate in the food services industry are subject to a higher degree of regulation. Employers should be diligent in this industry to ensure that employees who are exhibiting symptoms or who may have come into contact with Swine Flu to obtain medical certification that they are able to perform the essential duties of their job without putting others at risk. However, regular, randomized disease testing may not be defensible. Where an employee has reason to believe that he is ill, or where the employee’s supervisor also reasonably has such belief, it is incumbent on the company to ensure that the employee is not suffering from a communicable disease if his work will require regular contact with meat in a manner as to constitute an infection risk.
In addition the HPPA contains specific provisions that impose a higher duty on employers operating in the food services industry. For example, the HPPA requires every person who operates a food premise to provide the Medical Officer of Health with information requested regarding the manufacturing, processing, preparation, storage, handling, display, transportation, sale or offering for sale of any food on or in the food premise.
The Canadian Food Inspection Agency has prepared a Food Safety Enhancement Program Manual to provide guidance to management and employees of the food industry outlining standards of personal hygiene and cleanliness that are required of all employees handling food products. The manual provides that such employees are required to:
- Wash their hands with soap and warm water upon entering the food handling area;
- Paper towels should be used to turn off water taps; employees should also wash their hands after using the toilet, coughing or sneezing or blowing their nose;
- Clean clothing, uniforms and aprons should be used by all food handlers; uniforms or aprons should not be worn outside the food processing area; hair should be restrained at all times;
- Food handlers should avoid touching their nose, mouth, hair and skin during food handling;
- Personal effects and street clothing should not be kept in food handling areas; these items should be stored so as to prevent contamination;
- Access of personnel and visitors should be controlled in food processing areas;
- Protective clothing, hair coverings, gloves and footwear applicable to the operation, worn and maintained in a sanitary manner;
- Employees to remove any items that may fall into food;
- Jewellery is not to be worn or carried into food handling areas;
- Tobacco products, gum and food not permitted in food handling areas;
- Report to management any communicable disease.
– Employers who operate in the public transportation industry who have close contact with large numbers of travellers will be required to meet higher standards for health and safety, both to its employees as well as regulators. Such employers may not be able to continue operations that cross borders without providing appropriate assurance to customs or immigration officials that employees are not infected. Where an employer is required to provide verification regarding the health of employees, it is reasonable and appropriate for such employers to require medical certification of employees, to ensure that they are fit for work. It is a management/employer right to maintain efficient and productive operations, and thus all reasonable and legal steps can be taken to this end. However, it is important that employers do not single out certain groups of employees based on a prohibited ground, without bona fide justification.
For employers to ensure continued operation in the travel industry, they will need to put in place measures to protect its employees from the contagion, as well as reassure employees that the measures are adequate to protect them. These steps will assist employees to remain disease free and feel safe to come to work.
Given the nature of Swine Flu and the fact that it is a communicable disease believed to be spread through aerosolized droplets and body secretions, employees who work in close quarters with one another and/or the general public, like in the airline or busing industry, should be closely monitored to ensure that they do not infect others or become infected. Employers who operate in such an industry should be particularly vigilant to ensure that infected or potentially infected employees are screened or monitored for symptoms.
Rights of Employees
Occupational Health and Safety Act
Under the OHSA employees can refuse to work if they believe that the workplace is unsafe. The OHSA sets out a very specific procedure that must be followed in a work refusal. Most provinces and federally regulated employers have similar rights for employees. In Ontario all workers have the right to refuse to work, although for some this right is circumscribed.
A worker can refuse to work if s/he believes that the physical condition of the workplace or station is likely to endanger him/her or the physical condition of the workplace contravenes the OHSA and is likely to endanger him/her or another worker. Given this, employers should be aware that although the risk of contracting Swine Flu is actually quite minimal in most
workplaces, employees may still be entitled to refuse to work if they genuinely believe that they are at risk. The constant media attention to the issue and the appearance of people wearing masks will heighten hysteria.
Employers in Canada must be mindful of their obligations under both employment and health information privacy legislation either at the federal or provincial level. Balancing the need to ensure a workplace free of infectious disease against the ongoing rights of employees to keep the state of their medical conditions private can be challenging.
In general, there is no requirement that employers pay employees who are not at work because they are ill. However, many employers provide employees with sick leave or short-term disability benefits. Where such benefits are available to employees, it is recommended that employers allow employees who have either been ordered to quarantine themselves, or have voluntarily quarantined themselves to access such benefits. In addition, where an employer does not provide paid time off work for sickness employers may wish to encourage employees to take vacation time or lieu time off to deal with sickness due to Swine Flu. An employer may chose to schedule vacation time owing to an employee during a period of quarantine depending on the terms and conditions of employment.
Workplace Safety and Insurance Act
The Workplace Safety and Insurance Act (WSIA) provides compensation to eligible employees for “personal injury or illness arising out of the course of employment.” The WSIA also provides coverage for employees who are suffering from and impaired by an occupational disease. This means that only those employees who contract Swine Flu in the course of employment are eligible for WSI benefits. The WSIA does not provide coverage for symptom-free employees, even if they are quarantined or sent home on a precautionary basis.
Employment Standards Act
Under the Employment Standards Act, 2000 (ESA), employees are eligible for up to10 days of unpaid emergency leave. For this provision of the ESA to apply, the employer must regularly employ over 50 people in Ontario. Emergency leave is unpaid job protected leave in cases of personal illness, injury or medical emergency of the employee, or illness, injury, medical emergency or death of certain relatives. Thus employees who are at home or in hospital due to Swine Flu, to either care for themselves or for a child, parent or other close relative (as defined in the ESA) are entitled to up to 10 days of unpaid time off from work. While off on emergency leave, employees’ benefits must be continued.
The Ontario ESA also provides unpaid Family Leave up to eight weeks for employees to provide care and support to a spouse, parent, step parent, foster parent, child, step child and foster child. However, such leaves are limited to circumstances where the individual has a serious medical condition with a significant risk of death within 26 weeks and must be supported by a certificate from a medical practitioner.
Employers whose workplaces become quarantined are required to pay employees for work performed. They may not, however, be required to pay employees overtime if the employees are under quarantine and cannot leave the workplace, but is not actually working or on call. If any work is performed during the quarantine of the workplace, then the regular hours of work and overtime requirement apply, and employees should be paid at the appropriate rate.
Employers who have lost staff due to employee quarantine can require other staff to work overtime in exceptional circumstances without employee consent, but only to the extent necessary to avoid a serious interruption or interference with the ordinary working of the employer’s operations.
An employer can also require an employee to work more than eight hours per day, or the regular work day (if it is longer) and more than 48 hours in a week where there is an emergency, something unforeseen occurs that could interrupt the continued delivery of essential public services, or that could interrupt the continuous processes or seasonal operations or urgent repair work to the employer’s plant or equipment if necessary.
Kevin Coon is a partner in the Toronto office of Baker & McKenzie LLP. Contact him at firstname.lastname@example.org.