5. Managing COVID-19-Related Employee Issues

Management of quarantine, childcare and medical leave for employees affected by COVID-19. 

Employers should work with their employees to create flexible work schedules, facilitate work from home arrangements, or provide their employees with a temporary leave of absence. Several Canadian jurisdictions have expanded statutory leaves for employees who are absent from the workplace because they are self-isolating, because they have family or child-care obligations, or as a result of other issues related to COVID-19. The nature of the request will dictate the leave of absence that will be appropriate. As a result of the COVID-19 pandemic, employees may be entitled to the following leaves:

• Short-term sick leave
• Long-term illness or injury leave
• Compassionate care leave
• Emergency leave

The details and requirements for these leaves vary by jurisdiction. Usually these leaves are unpaid. Where child-care obligations are pressing or lengthy, employees may be entitled to human rights accommodations on the basis of the protected ground of family-status. In addition, employers will often have policies that provide for more generous leave entitlements. Employers should asses their workplace policies that provide for leaves and, where they qualify, allow employees to access these leaves. Where the leaves are unpaid, the employee may be entitled to income replacement under government benefit programs.

Employees who fear infection and refuse to work.

Courts and adjudicators will most likely weigh all of the relevant factors in the circumstances to determine whether the workplace created a greater risk of the worker contracting COVID-19 than the community at large.  The Workplace Safety and Insurance Board sets out a number of factors that it will use to determine whether a worker’s employment was a significant contributing factor to his/her COVID-19 condition. It is likely that the Ministry of Labour will enlist a similar approach when evaluating whether a worker has invoked a valid work refusal under the Occupational Health and Safety Act.

Factors include:

1. The nature of the worker’s employment created an elevated risk of contracting COVID-19 • Has a contact source to COVID-19 within the workplace been identified? • Does the nature and location of employment activities place the worker at risk for exposure to infected persons or infectious substances? • Was there an opportunity for transmission of COVID-19 in the workplace via a compatible route of transmission for the infectious substance?
2. The worker’s COVID-19 condition has been confirmed • Are the incubation period, the time from the date of exposure and the onset of illness, clinically compatible with COVID-19 that has been established to exist in the workplace? • Has a medical diagnosis been confirmed? If not, are the worker’s symptoms clinically compatible with the symptoms produced by COVID-19? Is this supported by an assessment from a registered health professional?

A decision-maker must gather all of the relevant information in order to assess and weigh each piece of evidence to determine whether the worker’s COVID-19 is work-related. The key issue to be determined, as part of the assessment of work-relatedness, is whether the worker’s employment duties or requirements were a significant contributing factor in the worker contracting COVID-19.

Disclosure of employees who are infected.

Action Plan: Steps to Take if Employee is a Confirmed Case of COVID-19

Step One: Tell the employee who tested positive not to attend the workplace until cleared to do so by a medical professional. Occupational Health and Safety legislation”) sets out the duties of employers with respect to health and safety of employees in the workplace.  Employers must take “every reasonable precaution in the circumstances for the protection of a worker.  In the case of an employee that has tested positive for COVID-19, it is a reasonable precaution to not allow an employee to return to work until they have received clearance that the virus is no longer communicable from a medical professional. According to the Public Health Agency of Canada (“PHAC”), two consecutive negative laboratory test results, at least 24 hours apart, can be used to determine the end of the communicable period of COVID-19.

Step Two: Ask the employee to identify co-workers that they had close contact with and ask those co-workers to stay out of the workplace for 14 days. According to PHAC, any person who is within 2 metres of a COVID-19 case where the individual is experiencing respiratory symptoms (e.g. sneezing, coughing) is at risk of transmission. PHAC also states that a longer exposure time increases the risk of exposure to the virus. PHAC is currently advising that individuals without symptoms who have been in close contact with a COVID-19 case need to self-isolate for 14 days. At this time, however, PHAC has not released guidance on how a “close contact” is defined.

Step Three: Notify the joint health and safety committee. Under Occupational Health and Safety legislation, employers have a duty to provide the joint health and safety committee with information relating to hazards in the workplace. This duty must be balanced with the infected employee’s right to privacy. Generally, employers should not identify the individual who has been confirmed to be a positive case of COVID-19. The objective is to provide the joint health and safety committee with sufficient information about the risk of transmission in the workplace. The fact that certain employees have potentially been exposed to COVID-19 can be provided. The dates of the exposure and the extent of the circumstances of their exposure can also be disclosed.

Step Four: Notify other employees that have a credible transmission risk of COVID-19. According to PHAC, a person who has contact with an inanimate object, such as contaminated surfaces and objects, which can serve as the vehicle for transmission of COVID-19 viruses, is at risk of infection. Employees that have not been within 2 metres of a COVID-19 case, but have worked in the same workspace such that they have potentially had contact with a contaminated surface or object, should be informed of their potential exposure.

As set out above, the name or identifying information about the employee that is a confirmed case of COVID-19 should not be disclosed. However, sufficient information about the potential exposure to other employees should be disclosed in order for potentially exposed employees to seek medical advice if necessary.

Step Five: If there is reasonable evidence to suspect that the employee became infected through exposure in the workplace, report the illness to the ministry of labour and worker’s compensation  board. Workers who contract COVID-19 in the course of their employment may be eligible for loss of earnings benefits under worker’s compensation legislation. Under most worker’s compensation legislation, employers have an obligation to notify the appropriate authority within a specific time period  after learning of a workplace accident or injury.  Employers should ensure that they comply with notice and reporting obligations applicable in their jurisdiction(s).

Whether a worker is entitled to loss of earnings benefits under a worker’s compensation regime will generally depend on whether there is a connection between the workplace and the worker’s contraction of the virus.  For example, in Ontario, the Workplace Safety and Insurance Board (“WSIB”) has released a COVID-19 update, which states that entitlement to benefits because of COVID-19 will be determined by considering whether the nature of the worker’s employment created a risk of contracting the disease to which the public at large is not normally exposed. In determining whether the nature of the worker’s employment created an elevated risk of contracting COVID-19, the adjudicator will consider:

• Has a contact source to COVID-19 been identified?
• Does the nature and location of employment activities place the worker at risk for exposure to infected persons or infected substances?
• Was there an opportunity for transmission of COVID-19 in the workplace via a compatible route o transmission for the infectious substance?

Other issues.

Travel Restrictions

Monitoring travel will still be important for the purposes of limiting the spread of COVID-19 in the workplace. While employers may restrict business-related travel, restricting employees’ personal travel is more problematic. During the COVID-19 pandemic, the Government of Canada is restricting travel to other countries to essential travel only. Employers may encourage employees to monitor the Government of Canada website and avoid non-essential travel. In addition, employers may require employees to report if they have been travelling, or will be travelling to high-risk areas, and must implement and advise employees of the company workplace travel policy and the requirement to self-quarantine when returning from travel outside Canada.

Providing Employees with Accommodations

Human Rights legislation in all Canadian jurisdictions prohibits employers from discriminating against employees on specific grounds. As a result of the COVID-19 pandemic, employees may face a number of challenges including being at a greater risk of contracting COVID-19 as a result of having a weaker immune system, or increased child-care obligations and responsibility for sick relatives. Actions against persons who have contracted COVID-19, or refusals to provide accommodations for employees at a greater risk of contracting COVID-19 and employees with family and child-care obligations, may constitute discrimination.

For employees facing challenges as a result of the COVID-19 pandemic, employers must consider accommodations that may include work from home arrangements if possible, modifying the employee’s workstation to reduce the risk of infection, or allowing the employee to utilize a statutory job-protected leaves or company leaves.