As the ever fluid circumstances surrounding the global response to COVID-19 continue to evolve, below are some common questions which have arisen.
Is it mandatory for Employees to self-isolate?
If the Employee has travelled, both Federal and Provincial public health leaders have recommended that all travellers to Canada self-isolate for 14 days. These efforts will contribute to slow the introduction and spread of COVID-19 in Canada.
However, if an employee has not travelled it is not mandatory for employees to self-isolate although the Federal Government is advising that social distancing is the appropriate course of action to prevent the spread of COVID-19
Can Employers require Employees to advise if they have contracted COVID-19?
It depends. Employers are entitled to take proactive steps to ensure a safe workplace for their employees; however both human rights protections as well as privacy considerations can come in to play when addressing the issue of medical diagnoses and prognosis.
However, employers may choose to implement a policy which encourages employees to confidentially report a positive diagnosis of COVID-19 due to the risk of spread within the workplace and the resultant health and safety concerns.
If an employer intends to implement a policy with an obligation such as this it is important that the issues of confidentiality and human rights boundaries are well understood and discussed with a lawyer.
Can Employees self-isolate and refuse to come to work in response to COVID-19?
It is realistic to anticipate employees refusing to attend work due to risk of exposure to COVID-19. It is important for employers to remember their obligations to their employees under Occupational Health and Safety legislation and WorkSafeBC policies.
Employers are obligated to protect the health and safety of their workers and this includes when employees reasonably believe that there are factors at work that constitute a danger to their health and safety. Employers should investigate the perceived danger and, as necessary, respond by removing that risk from the workplace. In the current circumstances this may include strict cleaning and disinfectant regimes, exercising social distancing measures within the workplace (including, if possible, work from home measures).
Employers are prohibited from retaliating against employees who exercise lawful work refusal.
Can I send employees home if they are exhibiting flu-like symptoms?
Whether it is due to workload, a sense of duty, or the fear of job loss, it is not unusual for employees in Canada to come to work despite feeling ill.
It is appropriate to exclude workers or visitors from the workplace if they are exhibiting symptoms and this is no different than sending an employee home if they were sick prior to the COVID-19 pandemic.
However, it is important to recognize that under the Employment Standards Act, if an employee was required to report to work on a given day and is subsequently sent home, the employer must pay the employee for a minimum of 2 hours at the regular wage (regardless of whether they started their shift). If the employee was scheduled to work more than 8 hours that day, then the employer is responsible for paying a minimum of 4 hours. This is subject to exceptions such as if the employee is “unfit to work” or fails to comply with Part 3 of the Workers Compensation Act.
Similarly, it is important for employers to be aware of the possible triggering of the Human Rights Code with respect to differential treatment of employees based on illness. An employee cannot be terminated or demoted due to taking sick leave (and a change to their compensation or duties in response to the illness may constitute wrongful termination via a principle known as “constructive dismissal”). It may be that the circumstances require the employer to canvass accommodation techniques such as working from home arrangements.
Does an Employer need to report suspected cases of COVID-19?
There is no obligation on an employer or other employees to report what they suspect are cases of COVID-19. Reporting positive cases of COVID-19 is the role of medical practitioners.
It is important to accommodate employees who are concerned they may have been exposed by accommodating their efforts to self-isolate, obtain appropriate diagnosis and treatment. This includes, but isn’t limited to, accommodating sick leave and isolating efforts as necessary.
Can Employees refuse to come to work to care for others with COVID-19?
The British Columbia Employment Standards Act provides for a number of protected leave entitlements including:
- Family Responsibility Leave: up to 5 days of unpaid leave per year to meet responsibilities related to (1) the care, health or education of a child in the employee’s care, or (2) the care or health of any other member of the employee’s immediate family.
- Compassionate Care Leave: up to 27 weeks of unpaid leave to provide care to a family member who has a serious medical condition with significant risk of death (as identified and certified by a medical practitioner).
- Critical Illness or Injury Leave: up to 36 weeks to provide care for a family member under 19 (or 16 weeks if over 19), if the family member has been certified by a medical practitioner as the health of the family member has significantly changed and that the life is at risk as a result of illness or injury.
The employment lawyers at Doak Shirreff Lawyers LLP are here to assist and can even do so remotely as needed during this time. Please feel free to reach out to us at [email protected] or call 250-763-4323, or through our toll-free number at 1-800-661-4959.