March 17, 2020

Key legal and HR considerations Canadian employers need to think about for COVID-19

COVID-19 continues to be a rapidly evolving and growing concern, which may give rise to difficult legal and HR issues. Here, e2r’s Stuart Ducoffe provides key considerations for employers to think about, including travel, sick leave benefits, and statutory leaves.

COVID-19, also known as novel coronavirus, continues to be a rapidly evolving and growing concern. On March 11, 2020, the World Health Organization assessed COVID-19 as a pandemic. Everyday we are made aware of significant steps organizations are taking to respond to this unprecedented circumstance. As a result, employers need to understand some of the key legal and human resource considerations arising from this pandemic. We recommend employers consider the following:  

 

Travel

Employers should review their travel policies with particular attention to ‘risk areas.’ As part of this review, employers’ expectations should be clearly communicated to employees regarding business and personal travel. If business travel to a risk area is not a necessity, it is recommended the travel be cancelled or suspended. 

 

Employees should also be encouraged not to book personal travel to risk areas. If returning from a risk area, employees should be required to self-quarantine for the current period recommended by authorities. Where possible, remote work arrangements should be implemented for any employees that are required to self-quarantine.

 

If remote work is not an available option, employees can be provided with paid time off. Paid time can be a combination of sick time, vacation pay, gratuitous paid time off, and/or any other available leaves. Providing those employees who are unable to work remotely with paid time off during a quarantine will better incentivize employees not to come into work while exhibiting symptoms and potentially infecting other staff. Providing paid time off will also better protect employers from potential constructive dismissal claims.

 

However, an employer would typically be permitted to require an employee to self-quarantine at home without pay if the employee travelled to a risk area (or through a risk area) after being clearly advised of the employer’s preference to have employees refrain from travelling to risk areas.  

 

Sick leave benefits and employment insurance

Employees who are exhibiting symptoms should be required to go home and consider seeking medical attention. Absences related directly to COVID-19 should not result in discipline and employers should consider exempting absences unrelated to COVID-19 as well – employees who may be ill should be encouraged to stay home.

 

Employers should also be flexible in applying their absenteeism policies; requiring a doctor’s note for every absence may place an unnecessary strain on the health care system and expose an otherwise uninfected person to COVID-19.

 

However, employers may require employees who have contracted COVID-19 or have been placed in quarantine to get medical clearance before returning to work. That said, absent a reasonable justification, employers will likely not be able to require an employee to undergo a Coronavirus test following an absence due to flu-like symptoms. As discussed above, employees who are required to stay home should be provided with paid time off where possible.

 

Employees may also have access to Employment Insurance. If an employee has had or is anticipated to have seven consecutive calendar days with no work and no insurable earnings, the employer must issue a Record of Employment. A Record of Employment must also be issued when an employee’s salary falls below 60% of regular weekly earnings because of illness or quarantine.

 

Temporary workforce reductions

Given Coronavirus’ impact on supply chains and the global economy, employers may also consider temporarily reducing their workforces. Many Canadian jurisdictions contain temporary layoff provisions. However, absent a contractual right to lay off an employee or the employee’s consent, a temporary layoff may constitute constructive dismissal. Despite the risk of a constructive dismissal claim, a layoff may still be preferable to a termination. If considering temporary layoffs, employers must be mindful of each jurisdictions’ maximum layoff length. If exceeded, the layoff, even if consented to, will be deemed to be a termination.

 

Statutory leaves

Independent of a company’s policies, employees in many jurisdictions are entitled to job-protected leaves for illness, some with pay. Employers should consult applicable employment standards guidance to determine the length of time employees may be entitled to take off due to illness. Employees may also be entitled to job-protected leaves to provide care for an ill family member.

 

Work refusals

Based on workplace health and safety protections an employee may have the right to refuse unsafe work where the work or the workplace is likely to endanger their health and safety. Employees who fear contracting COVID-19 at work or on their way to work may attempt to exercise their right to refuse unsafe work. Absent a change in circumstances, a work refusal based upon a fear of contracting COVID-19 is likely not legitimate – save and except for mandatory business travel to a risk area.

 

However, an employer may have to meet its procedural obligation to investigate the issue in accordance with the applicable health and safety legislation. Employees cannot be disciplined for exercising their right to refuse unsafe work, even if the work is later determined to be safe. Failing to comply with occupational health and safety legislation can also result in employer fines.

 

Workers’ compensation

Employees who contract the coronavirus in the course of their employment may be able to claim workers’ compensation benefits. However, infection from other employees is likely not enough to establish a claim. The infection typically has to be an occupational disease. Even though the likelihood of a legitimate claim for workers’ compensation benefits related to Coronavirus is low in most workplaces, awareness on how to respond to a claim is important.

 

Human Rights

Employers have a duty to accommodate an employee’s disability. While the flu is typically not considered a disability under human rights legislation, COVID-19 may be considered a disability. Employees may also request accommodation (i.e. being able to work from home or take a leave) related to the fear of contracting COVID-19.

 

While these requests will generally be unsupported, there could be a situation where an employee has presented medical evidence that suggests they are more susceptible to death if they contract Coronavirus due to a pre-existing medical condition and are requesting to minimize the likelihood of infection by self-quarantine. All requests will need to be carefully considered in the context of the particular employee.

 

With the recent provincial announcements of school closures, employers will also be facing an onslaught of employee/parent requests to work remotely, reduce working hours, or miss work altogether to permit these employees to satisfy their childcare obligations. This ask of employees will trigger the “family status” prohibited ground of discrimination under most provincial human rights legislation. As is the obligation generally of employers under human rights legislation, employers will be legally required to accommodate the employee request up to what is called undue hardship to the employer.

 

Although the foregoing identifies some of the current issues facing employers as a result of the COVID-19 pandemic, it is indeed a fluid situation that will likely give rise to many more difficult legal and human resources issues.  

 

Learn more about key legal and HR considerations for Canadian employers related to COVID-19. Watch our recent webinars.

Stuart Ducoffe

Stuart Ducoffe (B.C.L., LL.B.,CHRL) is a seasoned employment and labour lawyer and Canadian Human Resources leader as well as the co-founder of e2r®, which powers Ceridian’s HR Advisory Services. He is also a partner and co-founder of Woolgar VanWiechen Cosgriffe Ducoffe LLP and leads the firm's employment and labour law practice. Follow e2r® on Twitter and Instagram to stay up to date on Stuart and his team!

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