by: By Paul D. McLean*
Source: https://mathewsdinsdale.com/covid-19-and-the-workplace-frequently-asked-questions/
The following provides general guidance to employers in dealing with the potential impacts of COVID-19 on the workplace. The information contained below is subject to change as the COVID-19 pandemic progresses. All should appreciate that this is a fluid situation and we will continue to update our clients as matters change. For specific issues, please speak with your Mathews Dinsdale lawyer.
Current Information
We have issued a number of In-A-Flash updates for specific issues arising from the COVID-19 pandemic. These can be accessed on our website.
Where can employers get regular updates on COVID-19?
The Government of Canada’s Public Health Agency
Infection Prevention and Control Canada (ipac)
Provincial health authorities.
What is the Prevalence of COVID-19 in Canada?
As of March 16, 2020, COVID-19 has been confirmed in every Canadian province. The Public Health Agency of Canada expects those numbers to increase.
Responding to Potential Infection and Infection
Can an employer take an employee’s temperature to determine whether they might be infected? What about other medical testing?
As the prevalence of COVID-19 continues to escalate, a number of employers Canadian employers have instituted temperature checks in the workplace.
Depending on the nature of the employer’s business (food supply and preparation, healthcare, working in close quarters, etc.) it may be reasonable for employers to take more aggressive health testing measures in the workplace, including temperature checks. Such a measure is consistent with workplace occupational health & safety obligations to take every precaution reasonable in the circumstances for protection of workers.
Employers must recognize that (a) temperature screening may not capture asymptomatic carriers of the COVID-19 virus and (b) depending on how the testing is being conducted, surface testing may not capture people with a fever.
Employers should be aware that there may be human rights, occupational health and safety and privacy considerations should they wish to take the temperature of employees or members of the public entering a premises.
We will continue to review recommendations from the Public Health Agency of Canada and provincial health authorities.
An employee has tested positive for COVID-19 – what does the employer do?
The employee should not be permitted to return to the workplace until they are free of the COVID-19 virus.
The current advice from health authorities is that all employees who worked closely with the infected employee should also be removed from the workplace for at least a 14-day period to ensure the infection does not spread in the workplace.
What constitutes “closely” will depend on the workplace and the nature of interactions between employees. Employers should err on the side of caution.
Employers should also take reasonable measures to protect the confidentiality, to the extent possible, to protect the identity of any employee who contracts COVID-19.
One of our employees an unconfirmed case of COVID-19. What to do?
As with a confirmed case, the employee should be removed from the workplace.
The Public Health Agency of Canada encourages any person who has even mild symptoms to stay home and call the public health authority in the province or territory they are in to inform them. They will provide advice on what the employee should do.
Other employees who may have been exposed should be informed and removed from the workplace for at least a 14 day period or until the diagnosis of COVID-19 is ruled out by health authorities.
One of our employees told us that they came into contact with someone who has COVID-19. What should we do?
Once the contact is confirmed, the employee should be removed from the workplace for at least 14 days. Co-workers who may have come into close contact with the employee should also be removed from the workplace for at least a 14 day period.
If one of our employee’s has COVID-19, does the employer have to report it to the provincial or federal government?
There is no obligation to report a confirmed case of COVID-19 to federal or provincial health authorities. The medical professional who received the diagnosis has the obligation to report the positive test result to provincial health authorities.
However, if an employee in the workplace is diagnosed, employers may want to voluntarily contact public health authorities to receive advice and assist in identifying contacts the infected employee had in the workplace.
Additionally, if the employee becomes ill or dies from COVID-19, and it is determined that infection occurred at the workplace or in the course of employment, there may be an obligation, under health and safety and workers’ compensation legislation, to notify the regulator.
Travel Restrictions
As of March 18, 2020, the Government of Canada has closed the US-Canada border to non-essential travel.
As of March 13,2020, the Government of Canada has requested Canadians avoid any travel outside of Canada.
As of March 16, 2020, anyone, including Canadian citizens and permanent residents, who exhibit symptoms abroad will be restricted from returning to Canada. Employers should be prohibiting international travel at this time as well as any non-essential travel within Canada.
Persons returning to Canada from international travel travelling, including the USA, have been requested to self-isolate on their return for 14 days.
The Government of Canada has also has posted active travel health notices for non-essential travel to areas of China, France, Germany, Hong Kong, Iran, Italy, Japan, Singapore, South Korea and Spain due to the outbreak of COVID-19.
Patients with confirmed COVID-19 infection have reportedly had mild to severe respiratory illness with symptoms of fever, cough, and shortness of breath. If the employee has these symptoms, they should seek medical attention and should not be permitted to return to work until they are confirmed by medical testing to either not be suffering from COVID-19 or that they no longer carry the virus.
Layoff, Termination and Payment to Employees
Can an employer temporarily lay off employees?
Yes, but there is a real risk that any unilateral lay off of employees may be treated as a termination of employment under employment standards legislation or the common law. There are also statutory exemptions in many jurisdictions for unforeseeable circumstances, which may include a pandemic or government-ordered closure of a business.
A number of provincial governments are proposing amendments to statutory leave guarantees to address the impact of COVID-19. We will provide specific guidance for each jurisdiction to our clients through our In-A-Flash updates.
What happens to our employees if we are ordered to close our business by the government?
If the employer is ordered to close by health or other authorities, employers may be able layoff employees without liability under provincial employment standards legislation or the common law. Each case will be dependent on its own facts.
If we layoff our employees, are they still covered under our benefit plans?
This will depend on the language of the benefit plan document.
Employers must review their policies with their benefit plan provider and advice employees of any limitations or restrictions in coverage.
Can an employer close its business for safety reasons due to the COVID-19 outbreak?
An employer must ensure a safe working environment. Depending on the situation, it may be necessary to close a business location for occupational health and safety reasons.
An employer’s obligation for providing notice or pay in lieu of notice to employees in the event of a workplace closure will be governed by the specific facts of each case.
If an employer keeps an employee without COVID-19 symptoms out of work, is there a requirement to compensate the employee?
This will depend on the circumstances, including if the employee has travelled, the nature of the specific workplace, alternatives available (i.e. working from home) and any potential contract or collective agreement requirements.
While each situation will have to be assessed individually, there will be circumstances where holding an employee out of service, without pay, may be deemed reasonable. There is also the potential for reputational damage should it become publicized that employers are forcing employees to remain away from the workplace without pay.
Employers may also wish to consider whether the absence of compensation will reduce the efficacy of preventative measures in the workplace. If they will not be compensated, employees may not self-assess as critically as required or may not report issues or concerns.
What if an employee has COVID-19 and cannot work?
Where an employee contracts COVID-19 and is unable to work, an employer must grant any applicable legislative leave to the employee, in addition to meeting any sick leave obligations outlined in employment agreements or collective agreements.
If the employee contracted COVID-19 in the workplace, there may be additional reporting obligations under workers’ compensation and occupational health and safety legislation.
Can an employer fire an employee if they contract COVID-19?
No. Employers may not terminate an employee or otherwise discriminate against an employee due to physical disability (which includes certain illnesses) under human rights legislation.
Work Refusal
What if employees refuse to work because they are afraid of contracting COVID-19 in the workplace?
Employers have a positive obligation to take reasonable care in the circumstances to protect the health and safety of employees under occupational health and safety legislation. Where an employee has reason to believe that there is a dangerous condition in the workplace, or that their duties present a danger to their health and safety (which is not an inherent or normal condition of their work), the employee may be able to refuse to attend work or perform certain duties.
In the context of the COVID-19 pandemic, employers can expect to see work refusals from employees based on:
a confirmed or presumptive case of COVID-19 in the workplace;
a confirmed case of COVID-19 in an employee’s immediate family or other close contact;
the risk of potential exposure to COVID-19 from contractors, customers or clients depending on the nature of the workplace or the people it serves;
concerns from employees who are particularly vulnerable (over age 65, compromised immune system, underlying medical condition) not wishing to report to work; or
employees with a generalized fear of contracting COVID-19 by travelling to or attending work.
Whether or not a wok refusal based on the above or other grounds is reasonable will depend on individual circumstances. In the event of a work refusal, the employer must respond in accordance with occupational health and safety legislation, which response will include an investigation into the concerns and, if appropriate, adopting measures to eliminate or reduce the workplace danger. This investigation will, in large part, be based upon the current scientific understanding of COVID-19 and the specific facts in the individual workplace. No reprisal for properly exercising a health and safety right may occur.
Employers should also understand that, where the regulator is required to resolve the work refusal, the way the regulator does so could be different than might ordinarily occur. The determination of the regulator might be made without meeting with the workplace parties in person or there may be other steps or measures implemented by the regulator, for the protection of its staff, that are unusual.
Can employees be discipline for a work refusal?
Provincial occupational health and safety legislation generally provides that employers cannot dismiss, discipline, or intimidate employees for properly exercising a health and safety right. An employer may be justified in imposing discipline if the work refusal has been exercised in bad faith. However, the ability to discipline will depend on the circumstances of the work refusal and the language in the applicable work refusal right. An employer considering discipline for a refusing worker should do so after consultation with counsel in all but the clearest of cases.
Can employees refuse travel as part of their job duties?
That will depend on the nature of the employee, the specific job and the travel destination. For example, employees over the age of 65 may not wish to travel at all. If there is a legitimate work refusal for safety reasons, occupational health and safety legislation will govern the resolution of any work refusal.
Working Remotely
Can an employer require an employee to work remotely?
In the current climate, a request that employees work remotely will likely be seen as a reasonable measure to encourage social distancing, given the advice of federal and provincial government authorities.
How do we monitor employees working remotely?
Employers should have a written policy which governs employees who are required to work remotely and addresses such things as working hours, productivity, remote meeting protocols, BYOD issues, etc.
Replacement Workers
What if an employer needs to replace sick employees on a temporary basis to operate?
An employer can hire employees on a temporary basis. An employer may also ask healthy employees to work additional hours, provided the employer is complying with legislative provisions regarding overtime and excessive hours of work.
Employers in unionized workplaces should be cognizant of collective agreement and provincial labour laws applying to unionized workplaces.
Employers should have already assessed how many employees they require to operate effectively and what will happen if a large number of employees are unable to attend work. If you have not done so already, do so now.
Personal Protective Equipment
Do employers have to buy personal protective equipment for employees?
Employers have a duty to provide a safe working environment relative to the expected duties of the employee and the risks in the workplace. If employees run the risk of becoming infected at work because of the work they perform, the employer must provide personal protective equipment. As of March 12, 2020, public health authorities are not generally recommending personal protective equipment (e.g. masks, gloves) or any other physical protective devices.
The preventative measures being advised are hand, respiratory, and environmental hygiene and social distancing. These recommendations suggest that these measures are generally reasonable for most workplaces.
However, if you have an employee who is vulnerable (over age 65, compromised immune system, or underlying medical condition) the obligations to this employee could be different. Precisely what steps may be reasonable to protect the vulnerable worker are likely to be determined on a case-by-case basis and involve advice from public health and/or medical officials. Employers may not know if a vulnerable employee is in the workplace. As part of workplace communications about COVID-19, employers should prompt workers with individual risk concerns to raise them with the employer.
Can we prevent an employee from wearing masks at work?
Yes, unless the use of personal protective equipment, such as masks, is a condition of employment or otherwise required for the employee to safely perform their duties.
Workers’ Compensation Issues
If an employee contracts COVID-19 at work – are they covered by workers’ compensation?
Possibly, but the assessment of whether the employee is entitled to compensation would be assessed on a case-by-case basis. Workers compensation boards will have to assess whether COVID-19 is an occupational disease: e.g. it was caused by and arose out and in the course of employment.
Ontario: WSIB Entitlements
In order to successfully obtain WSIB benefits in Ontario, a worker must be diagnosed with an illness and the exposure leading to the diagnosed illness occurred at the workplace or was a significant contributing factor in the development of the illness.
This means that if a worker is to receive WSIB benefits due to COVID-19, the worker must be diagnosed with COVID-19 as a result of a work-related exposure. If a worker has cold or flu-like symptoms this will not automatically indicate that they have a covered illness, or that the illness is work-related. A worker choosing to self-isolate as a precaution, or being sent home as an employer’s preventive decision, would likely not qualify for workers’ compensation coverage.
Like other claims if a worker is entitled to benefits, the worker may be eligible for wage loss benefits that include any period in quarantine pre-diagnosis, healthcare benefits, and permanent impairment benefits arising from the disease. In cases of fatality, the worker’s survivors could receive benefits from the WSIB.
The employer’s obligation to report claims has not changed.
Therefore, regardless of whether the employer agrees that the case meets the criteria for adjudication or allowance, employers should still be reporting the claim to the WSIB (i.e. filing a Form 7). As the WSIB has noted on their website “While the nature of some people’s work may put them at greater risk of contracting the virus, for example those treating someone with COVID-19, any claims received by the WSIB will need to be adjudicated on a case-by-case basis, taking into consideration the facts and circumstances.”
If the status of the worker’s health changes, an employer who has filed a claim is required to report a ‘material change’ to the WSIB within 10 days of awareness of that change. Examples of a material change in the COVID-19 situation include (but are not limited to): general symptoms becoming a confirmed COVID-19 diagnosis, and awareness of a work exposure not previously known that is relevant to the adjudication of a claim.
Federal Government Economic Response Plan
On March 18, 2020, the Federal Government announced a multi-faceted Economic Response Plan. Details of the plan can be found here.
Emergency Care Benefit
The measures include an Emergency Care Benefit, which will provide up to $900 bi-weekly for up to 15 weeks to provide income support to workers who do not qualify for EI sickness benefits, workers caring for a family member with COVID-19 and parents who are unable to work due to childcare obligations.
Applicants will be required to attest that they meet the eligibility requirements and to re-confirm eligibility every two weeks.
It is anticipated that this Benefit will commence in April 2020.
Temporary Wage Subsidy
Small employers may be eligible for a wage subsidy of 10% of employee remuneration for a three month period, to a maximum of $1,375 per employee and $25,000 per employer.
EI Sickness Benefits
Employment Insurance (EI) sickness benefits provide up to 15 weeks of income replacement and is available to eligible claimants who are unable to work because of illness, injury or quarantine, to allow them time to restore their health and return to work. Canadians quarantined can apply for EI sickness benefits.
Presently, the one-week waiting period for EI sickness benefits has been waived for claimants who have been quarantined, as has the requirement for a medical certificate.
Regular EI Benefits
Presently, there have not been changes made to regular EI benefits. Employees who are laid off may apply for regular EI benefits if they qualify under existing guidelines. If Employees are not eligible for EI, they may be eligible for Emergency Support Benefits.
Emergency Support Benefit
The Emergency Support Benefit will provide payments to workers who are unemployed and are not eligible for EI. At this time, the details of the amount payable to workers have not been released.
It is anticipated that this Benefit will commence in April 2020.
Immigration Issues
US-Canada Border
As of March 18, 2020, the US-Canada border is closed for non-essential travel.
Travel Bans
As of March 16, 2020, Canada has imposed incoming travel bans on foreign nationals: only Canadian citizens, permanent residents and American citizens will be allowed to enter Canada. There are limited exceptions for flight crews and diplomats.
On March 20, 2020 the Canadian government changed its position with respect to whether current temporary foreign workers could re-enter Canada. When the border closures were first announced on March 16, 2020 current temporary foreign workers and students were not permitted entry. The Federal Government announced that temporary foreign workers and students with valid visas to enter Canada will now be allowed to re-enter beginning on a date to be announced. In addition, anyone who had been approved for PR before March 16 will be able to land in Canada as permanent residents. Special measures have also been put in place for agricultural and food processing workers who are considered essential in our economy. As with anyone re-entering Canada, these individuals will be required to self-isolate for 14 days on their return.
International Flights
On March 18, 2020 the Canadian Government issued an Order in Council (“OIC”) relating to the existing air travel ban, which will be in effect until June 30, 2020.
The OIC advises that any foreign national, who is not a Canadian citizen or Permanent Resident of Canada will not be allowed to enter Canada by aircraft from a foreign country. Some of the relevant exemptions are as follows:
individuals who have been in the US for the last 14 days (i.e. if you have not been in Canada or the US in the last 14 days – you cannot come back to Canada, unless you are a Canadian citizen or Permanent Resident);
an immediate family member of a Canadian citizen or of a permanent resident of Canada;
a person registered as an Indian under the Indian act; or
an aircrew member.
The definition of immediate family member has been expanded to now include:
the spouse or common-law partner of the person;
a dependent child of the person or of the person’s spouse or common-law partner;
a dependent child of a dependent child referred to in paragraph (b);
the parent or step-parent of the person or of the person’s spouse or common-law partner; and
the guardian or tutor of the person.
Transport Canada has again confirmed that they will require air operators to deny boarding of any traveller (including Canadian citizens and Permanent Residents) who have symptoms regardless of their citizenship.
Land Border
The Canadian government advised that land borders will refuse entry to the following people:
US citizens;
Green card holders; and
those who hold a visa to enter Canadian,
If their entry is considered “non-essential” (recreational or for tourism). Diplomats, US travellers arriving in Canada in transit to a third country and travellers with family-care, educational or compassionate reasons will be allowed entry. Supply chains, including trucking, will not be impacted by this closure.
The land border between Canada and the US will be closed for all non-essential travel for the next 30 days, to April 30, 2020.
Immigration Application Issues
Immigration, Refugees and Citizenship Canada (IRCC) understands that applicants abroad for temporary and permanent residents are being significantly impacted by the disruption of services caused by the COVID-19 pandemic. As such, IRCC has implemented special measures to assist temporary residents, permanent residents and applicants who wish to come to Canada from China, Iran and South Korea. It is possible that this list of countries may be expanded.
The deadline to provide Biometrics has been extended from 30 to 90 days.
IRCC have advised that all applications submitted are in progress and processing, but that there may be delays. Many Visa Application Centres are closed. IRCC has also advised that they will allow 90 days to comply with requests for additional documentation. If an applicant is not able to comply within the 90 days, they or their Representative may request an extension. IRCC should then allow an additional 90 day extension.
Overall, processing times have significantly increased for all out-of-Canada applications, which employers and applicants should keep in mind.
Applicants affected by travel restrictions who have applied for a work permit may withdraw and receive a refund.
New applications for permanent residence will continue as usual. If unable to provide a required document such as a Medical Confirmation or Police Certificate due to service disruptions as a result of COVID-19, applicants must provide a letter of explanation in order for their application to be deemed complete pursuant to R10 of the Immigration, Refugee Protection Regulations. In this instance, IRCC will provide a 90 day extension to provide that missing but required document. Further extensions are available if required.
All in-person landing interviews have been cancelled until April 13, 2020. Previously scheduled in-person landing interviews will be conducted by phone. IRCC will contact the applicant and Representative to confirm the date and time of the phone-landing.
Applicants who have been approved as a permanent resident and are unable to travel to Canada before their Confirmation Of Permanent Residency (COPR) expires must submit an online Web Form to explain why they are unable to land. Once able to travel, applicants are instructed to submit a new Web Form. IRCC will be in contact about next steps.
All citizenship ceremonies and citizenship tests are cancelled until further notice.
Employment and Social Development Canada (‘Service Canada’) has confirmed that they will provide extensions to positive Labour Market Impact Assessments that have already been issued, where necessary .
States of Emergency
Federal Legislation
The federal Quarantine Act and Emergencies Act both contains provisions permitting the federal government to respond to public health emergencies.
Provincial Legislation
Provincial public health or emergency laws contain provisions which are similar to the Quarantine Act but are restricted to within provincial borders. These laws permit the provincial government to do all reasonable acts necessary to lessen the health emergency.
Municipal Legislation
Most major municipalities have the power to declare local states of emergency to regulate matters within municipal boundaries.
Current Status
The province of Alberta has declared a Public Health Emergency.
The province of British Columbia has declared a Public Health Emergency.
The province of Quebec has declared a Public Health Emergency.
The province of Saskatchewan has declared a State of Emergency.
The province of Manitoba has declared a State of Emergency.
The province of Ontario has declared a State of Emergency.
The province of Nova Scotia has declared a State of Emergency.
The province of New Brunswick has declared a State of Emergency.
The province of Prince Edward Island has declared a State of Emergency.
Newfoundland and Labrador have declared a Public Health Emergency.
Nunavut, the Northwest Territories and the Yukon have declared Public Health Emergencies.
We will continue to update our clients with information as soon as it becomes available. If you have any questions about this topic, other COVID-19 related questions, or would like assistance with developing and/or reviewing pandemic plans, please do not hesitate to contact a Mathews Dinsdale lawyer, or refer to the Firm’s COVID-19 website resources.